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

90-Day Study 2017

The United States Supreme Court:
Landmark Decisions and the Justices Who Made Them
2017 90-Day Study Schedule

https://constitutingamerica.org/the-united-states-supreme-court-landmark-decisions-and-the-justices-who-made-them-2017/

 

INTRODUCTION

Essay #1 – Introduction – Why Study the Landmark Decisions? What does it mean to “constitute” America? The Constituting America website already features a clause-by-clause analysis of the constitution, articles written by an array of Constitutional scholars. The next step, the one we invite you to take with us now, is to study the ways in which our Supreme Court justices have interpreted the Constitution as they addressed disputes over its meaning brought to them by their fellow citizens. To dispute the meaning of the Constitution is to dispute the meaning of the American form of government, the American regime. The questions underlying every case that comes before the Supreme Court has always been: What is the American republic?

 

JUDICIAL POWERS

 

Essay #2 – Marbury v. Madison (1803) – When the Court resumed hearing cases in February 1803, one of the first orders of business was deciding Marbury v. Madison, which presented the question of whether Adams had the power to issue the appointments to a number of “midnight judges,” including Marbury. Marbury v. Madison (1803), a landmark decision establishing the Supreme Court’s role.


Essay #3 – Chief Justice John Marshall (1755-1835) – The longest-serving Chief Justice in our history, author of every major Supreme Court ruling in the first third of the nineteenth century—including the one establishing the principle of judicial review—John Marshall earned undisputed honor as “the Great Chief Justice.” Marshall always had before him an example of self-government who did soar on eagle’s wings, a man not only great but conspicuously great: George Washington. His friend and Supreme Court colleague Joseph Story called him a “federalist of the Washington School.” So he had been, before and after the short life of the Federalist Party, first as a young soldier in Washington’s army at Valley Forge and the Battle of Monmouth, then as a rising Virginia politician in the 1790s, as an ambassador to France during the Adams administration, and finally, while a Supreme Court justice at the height of his powers, years after Washington’s death, author of a history of the Revolutionary War seen through the prism of Washington’s life and character.


Essay #4 – Cohens v. Virginia (1821) – Over the years, the Supreme Court has addressed several constitutional topics in cases involving lotteries. Perhaps none is as significant as Chief Justice John Marshall’s opinion in Cohens v. Virginia. The case was the third major act in a decades-long contest over the nature of the Union and, more specifically, over the constitutional relationship between federal and state laws and between the federal and state judiciaries.


Essay #5 – Swift v. Tyson (1842) – George Swift filed suit to compel John Tyson to pay a debt due Swift. Tyson refused, defending there was no consideration for the obligation to Swift and that New York common law did not permit assignments of bills of exchange. As New York played a significant role in the financial and commercial market at that time, this issue was of significant importance that the Circuit Court certified it for direct appeal to the United States Supreme Court.


Essay #6 – Justice Joseph Story (1779-1845) – At age 32. after a distinguished government and law firm career in Boston, Joseph Story took his seat on the United States Supreme Court in 1811, becoming the 18th and youngest Justice appointed to the Supreme Court. Story served on the Court for almost thirty-four years, writing a large number of opinions and dissents. Story was born in Marblehead, Massachusetts on September 18, 1779, to Dr. Elisha Story, a participant in the Boston Tea Party, and Elisha’s second wife, Mehitable Pedrick.


Essay #7 – Propeller Genesee Chief v. Fitzhugh (1851) – In 1847, on Lake Ontario, the Genesee Chief collided with the schooner Cuba, a sailing vessel laden with nearly 6,000 bushels of wheat. The Cuba sank; the cargo was lost. The owners of the Cuba sought a libel (claim) in admiralty law in federal court for their damages. They based their claim on an 1845 statute of Congress. The Genesee Chief’s owners challenged that court’s jurisdiction. The matter proceeded to the Supreme Court. Viewed from the narrowest perspective, the Court abandoned long-standing English (and more recent American) precedents about application of admiralty law. In addition, the Court carefully trod a narrow path between powers of the general government and reserved powers of the states.


Essay #8 – Ex Parte McCardle (1869) – Ex parte McCardle was forged in the superheated atmosphere of Southern reconstruction after the Civil War. The struggle to shape that reconstruction pitted the “Radical” Republicans (representing the pre-war abolitionist wing) against moderates within the party. When the Supreme Court followed up with decisions that appeared to undercut the overall approach of Congressional reconstruction, several cases were brought that challenged directly the constitutionality of the Military Reconstruction Acts of 1867. Ex parte McCardle was one.

 

CONGRESSIONAL POWERS

 

Essay #9 – McCulloch v. Maryland (1819) – In 1818, James McCulloch was a cashier at the Baltimore branch of the Second Bank of the United States. McCulloch issued a series of bank notes on which the bank did not pay a Maryland state tax. The state treasurer sued to recover the money and won a judgment in Maryland’s highest court. The Supreme Court accepted the case, which would have a profound impact in defining the principle of federalism, the reading of the Necessary and Proper Clause in the Constitution, and the national vision of the Marshall Court.


Essay #10 – Field v. Clark (1892) – Can Congress give away its legislative powers to other branches of government, including administrative agencies? In the case of Field v. Clark, the Supreme Court decisively said “no,” laying down a precedent that stands against much of what our government does today. The McKinley Tariff Act of 1890, which gave rise to this case, gave the President of the United States the power to suspend duty-free status in sugar, molasses, coffee, tea, and hides when he determined that a country producing and importing those items into the United States had imposed “reciprocally unequal or unreasonable” tariffs on American goods. When the President suspended these items’ duty-free status, taxes had to be paid by companies bringing these goods into the country.

 

PRESIDENTIAL POWERS

 

Essay #11 – United States v. Curtiss-Wright Export Corp. (1936) – The three branches of the United States government are often questioned with respect to whether their exercise of powers exceeded the limitations imposed upon them by the United States Constitution. In U.S. v. Curtiss-Wright Export Corp. (1936), the issue was the extent of the president’s and executive branch’s power to conduct the foreign affairs of the United States. The decision has been recognized as a very influential one, establishing the president’s supremacy when it comes to foreign affairs.


Essay #12 – Youngstown Sheet & Tube Co. v. Sawyer (1952) – At times during our nation’s history, the executive branch of the United States government has tested the limits of its power by taking actions that are not explicitly granted to the president or executive branch. For example, in Youngstown Sheet & Tube Co. v. Sawyer (the “Steel Seizure Case”) (1952), the Supreme Court addressed the issue of executive power during emergencies in the absence of express statutory or Constitutional authority. Immediately after the Secretary of Commerce issued the order seizing the steel mills, the mills sued Secretary Sawyer in the United States District Court for the District of Columbia, seeking a declaratory judgment and an injunction. The District Court issued a preliminary injunction, which the Court of Appeals for the D.C. Circuit stayed. The Supreme Court granted certiorari to consider the executive branch’s powers in an emergency.

 

FEDERALISM AND STATES’ SOVEREIGNTY

 

Essay #13 – Fletcher v. Peck (1810) – The controversy over Yazoo did not end with the Court’s decision in Fletcher v. Peck in 1813. Peck’s victory was hollow in that Georgia had sold its western territories to the United States after the repeal act, with the proviso that up to 5 million acres be used to settle claims arising out of the Yazoo grants. Some of that land went to innocent purchasers under the original grant. More significant from the position of the Yazooists was that, after nearly two decades of failure, their attempts to have the federal government compensate them for their lost investment bore fruit. On March 31, 1814, President James Madison signed a bill that provided $5 million to compensate those original investors who did not want actually to settle on Yazoo lands. The end came largely due to political fatigue with a controversy that had plagued the first four administrations.


Essay #14 – Green v. Biddle (1823) – The easy conveyance of clear title to real property is an essential element of both a stable and prosperous civil society. “Clearing” title by conveying “unappropriated” lands to a central government is one way that fledgling or developing nations spur exploration, settlement, and development of lands. Such was the issue in the 1823 Supreme Court Case, Green v. Biddle, 21 US 1 (1823), wherein the conveyance of certain unappropriated lands from Virginia to the federal government resulted in confusion when much of that land was used to create the state of Kentucky.


Essay #15 – Willson v. Black Bird Creek Marsh Company (1829) – The concept of the “Dormant” Commerce Clause was fleshed out in an 1829 Supreme Court case, Willson v. Black Bird Creek Marsh Co., 27 US 245 (1829).  In that case, the owner of a sloop, Thomas Willson, had been sued by the Black Bird Creek Marsh Company for ramming his ship through a dam that had been built, in accordance with Delaware state law.  Willson argued that the dam, having been placed in a navigable waterway and therein blocking his ability to sail, interfered with interstate commerce, and was thus violative of the Commerce Clause.


Essay #16 – Barron v. Baltimore (1833) – In the early 1830s, the city of Baltimore was developing as a bustling urban center and port. The city diverted the streams around John Barron’s successful wharf and lowered the water level, which negatively impacted his business. He sued the city to recover his financial losses. Barron claimed the city government had taken his property without just compensation. Property rights are an essential natural right and constitutional liberty protected by the Fifth Amendment.


Essay #17 – Craig v. Missouri (1830) – Under the 1821 Missouri law, loan certificates were issued to those who promised to repay the state and were receivable at the treasury of any loan office created under the law. The underlying action was filed against Hiram Craig and others, who had made a promissory note in County of Chariton in exchange for the loan certificates. The defendants did not repay the state, and the state sued for collection. The defendants challenged the state’s ability to issue loan certificates.


Essay #18 – Briscoe v. Bank of Kentucky (1837) – The case of Briscoe v. Bank of Kentucky was originally argued before the Supreme Court in 1834, and Chief Justice John Marshall was prepared to rule that the actions of the state bank were unconstitutional. In the case of Briscoe v. Bank of Kentucky (1837), the Court had to weigh the constitutionality of circulating notes by state-chartered banks. The Court thus had to grapple with larger issues including the principle of federalism due to the competing powers of national and state governments regarding banks.


Essay #19 – Charles River Bridge v. Warren Bridge (1837) – In 1785, Boston’s population was around 18,000; across the Charles River, Charlestown counted 1,200. Forty years later, Boston’s population had more than tripled, to 60,000; that of Charlestown to 8,000. The need to accommodate the increased travel and commerce between Boston and points inland resulted in protracted litigation before the Supreme Court in the 1830s in the Charles River Bridge v. Warren Bridge case.


Essay #20 – Cooley v. Board of Wardens (1851) – In Cooley v. Board of Wardens (1851), a Pennsylvania law of 1803 required all vessels engaged in foreign or interstate travel to take on a pilot to navigate the ship to harbor. Any ship’s master who did not do so had to pay half the pilotage fee to the “Society for the Relief of Distressed and Decayed Pilots, their widows and children.” By further legislation, ships engaged in the Pennsylvania coal trade were exempted. Cooley, who operated under a federal license just as Gibbons and Willson had done, failed to pay the fee. When sued, he claimed that the law violated the Commerce Clause.


Essay #21 – Prigg v. Pennsylvania (1842) – The case of Prigg v. Pennsylvania (1842) illustrates the fragility of the lives of slaves and of free blacks at the time, in tragic events representing the brutality and injustice of slavery. Since the Supreme Court supported the side of slaveholders, free states were crippled in their ability to maintain rule of law as slave catchers grew bolder—and more prosperous. Increasing refusal of abolitionists in the free states to comply with the 1793 law and the ruling in Prigg prompted southern representatives to demand a stricter Fugitive Slave Act in the Compromise of 1850. The compromise soon broke down and within a decade a bloody Civil War was fought over the intractable issues related to slavery.


Essay #22 – Texas v. White (1869) – TEXAS v. WHITE ET AL., 74 U.S. 700 (1869) is one of the most important decisions made by the Supreme Court, because it addresses the nature of the Union. More specifically, is the Union bound together through the consent of the States or the coercive power of the United States government. Texas v. White is controlling case law which denies the constitutional right of a State to secede from the Union. Ipso Facto, should a State or States desire to secede from the Union, to that extent the Union is coercively bound together, and thereby not necessarily deriving its powers from the consent of the governed and anathema to the “consent of the governed” principle of the Declaration of Independence.

 

LOCAL GOVERNMENT

 

Essay #23 – Gelpcke v. City of Dubuque (1863) – On its face, Gelpcke v. Dubuque appears to be about the validity of municipal bonds and not much else, but there were deeper legal issues at play. Namely, who has the ultimate authority to interpret a state constitution or statute, the highest state court or the federal courts (including the Supreme Court)? And when a state supreme court gives a new interpretation to a state statute, does that constitute an amendment of the statute, i.e. does it have the status of “law?” If so, and this has the effect of rendering a contract void, can this then bring the opinion of the state supreme court into conflict with the U.S. Constitution, i.e., the Impairment of Contracts clause?


Essay #24 – Village of Euclid v. Ambler Realty Co. (1926) – In Euclid v. Ambler, the Supreme Court upheld the right of the Village of Euclid in Ohio, mostly farmland east of Cleveland, to impose zoning restrictions on property owners. Today, zoning is a near-universal practice. While zoning did not originate with the village of Euclid, the Euclid case was the first federal case, and it became a beacon of attraction for zoning upon reaching the Supreme Court.


Essay #25 – Justice George Sutherland (1862-1942) – In the Supreme Court’s history, six justices were born outside of the United States. The fifth of those born on foreign soil was George Sutherland (second born in England). After a career in private practice and public office, Sutherland became an Associate Justice of the Supreme Court in 1923, and would figure prominently in the New Deal jurisprudence as one of the “Four Horsemen” of the Supreme Court.


Essay #26 – San Antonio v. Rodriguez (1973 – Is a free public education a fundamental right? If so, what is the role of the federal government in assuring that the right is guaranteed in a manner that aligns with the Fourteenth Amendment’s Equal Protection Clause? These questions are at the heart of San Antonio v. Rodriguez, a 1973 Supreme Court case.

 

ELECTIONS AND REPRESENTATIVE GOVERNMENT

 

Essay #27 – Baker v. Carr (1962) – In 1962, the Supreme Court embarked on what has been described by one scholar as “the most significant reformist activism in which the Warren Court engaged,” other than civil rights cases involving blacks. The constitutional arena was the apportionment of legislative districts, and the case was Baker v. Carr.

 

PROPERTY RIGHTS

 

Essay #28 – Chicago, Burlington & Quincy Railroad Co. v. City of Chicago (1897) – In October 1880, the Chicago City Council decided to widen Rockwell Street, requiring the City to acquire certain private property owned by individuals and a right-of-way owned by the Chicago, Burlington & Quincy Railroad Company. The City of Chicago brought a condemnation suit in state court, and the jury awarded compensation to the individuals but only awarded one dollar to the railroad for its right-of-way. The railroad appealed, asserting that the condemnation was a taking in violation of the Due Process Clause of the Fourteenth Amendment.

 

COMMERCE AND CONTRACTS

 

Essay #29 – New Jersey v. Wilson (1812) – Are the terms of a contract inviolate? Can a contract run in perpetuity and affect something other than the parties involved? Can contracts be impaired (modified or broken) without the consent of both parties? These were the questions facing the Court in 1812 when they accepted an appeal of New Jersey v. Wilson. Citing Fletcher v. Peck as precedent, the court decided that the original agreement with the Indians represented a valid contract, and contracts, with few exceptions, remain in force unless and until the terms have been met or they are severed by mutual agreement of both parties.


Essay #30 – Trustees Of Dartmouth College v. Woodward (1819) – Daniel Webster, an alumnus of Dartmouth College, was selected by the trustees to argue their position before the Supreme Court of the United States. Webster argued that the New Hampshire legislature had violated the Contract Clause of the Constitution by passing a law “impairing the Obligation of Contracts.” In the decision written by Chief Justice John Marshall, the Court found that the college charter was a contract and that the charter made it clear Dartmouth College was a private entity and not a public one. The Dartmouth College decision was a landmark one because it imposed a significant constitutional limitation on states’ authority to intervene in and change state charters and contracts. 


Essay #31 – United States v. E.C. Knight (1895) – The late nineteenth century was a time of business consolidation as the American economy experienced a “great merger movement” with the rise of big business. Through means foul and fair, corporations formed trusts that dominated entire industries to combat competitive pressures that drove prices and at times to monopolize for control. The sugar industry was a part of this consolidation movement. The Supreme Court decided the first test case of the Sherman Act in United States v. E.C. Knight (1895).  The key question in the case was whether the manufacturing activity could be regulated under the Sherman Act or whether it fell under the police powers and regulatory authority of the states.


Essay #32 – Allgeyer v. Louisiana (1897) – Allgeyer v. Louisiana was the first decision in what would become a 40-year period in which the U.S. Supreme Court invalidated a number of state-level economic regulations, such as those affecting working conditions, wages and hours. The Court extended the substantive meaning of the Due Process Clause to protect economic rights, liberty of contract, and commercial activity as part of the definition of liberty. Justice Rufus W. Peckham, author of the Allgeyer decision, explained that the state’s police power was limited to laws protecting the public’s morals, health, safety, and welfare, and a maximum hours law for bakers in New York did not meet that test, because it violated the liberty of contract.


Essay #33 – Champion v. Ames (1903) – The Industrial Revolution created theretofore unimaginable wealth, some of which trickled down as wages to workers in the mills and factories of the 19th century. Though substandard by today’s measure, those wages were sufficiently high and working conditions sufficiently appealing to attract people from farms to the growing cities. It was Champion v. Ames, along with a handful of other cases in the first decade and a half of the 20th century, which validated the claim of constitutional legitimacy for the Progressive program of national direction of economic and social policy.


Essay #34 – Nebbia v. New York (1934) – In the late 1920s, farmers were often unable to sell their crops to distributors for sufficient prices to cover their costs of production. The Great Depression further exacerbated economic chaos and hardship throughout the American economy, making it even more difficult to adjust to the economic collapse. The central question in Nebbia v. New York, 1934, was whether the New York price regulation violated the Due Process Clause of the Fourteenth Amendment. Writing for the majority, Justice Owen Roberts explained that: neither property rights nor contract rights are absolute, [and] the power to promote the general welfare is inherent in government…[A] state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare … Price control, like any form of regulation, is unconstitutional.


Essay #35 – Home Building & Loan v. Blaisdell (1934) – To stem home and farm foreclosures during the Great Depression, Minnesota passed a law which allowed a mortgagor to pay court-determined rent set below the contractual mortgage amount. The mortgage holder could not foreclose as long as the mortgagor paid the reduced rent. The Minnesota law was passed on April 18, 1933, and the Supreme Court (5-4) decided in favor of the law’s constitutionality in January of 1934.


Essay #36 – Gold Clause Cases (1935) – Soon after his first inauguration, President Franklin D. Roosevelt tried to close the gold window. At the time, the American currency was tied to the value of gold, and the financial crisis was putting serious pressure on government gold reserves. To deal with the problem, the government devalued the dollar. As an emergency measure, Congress passed a joint resolution declaring that the federal government would no longer recognize any debts that required “payments in gold or a particular kind of coin or currency, or in an amount of money of the United States measured thereby.” During World War I, however, the U.S. Treasury had issued Liberty Bonds that provided that the “principal and interest hereof are payable in United States gold coin of the present standard of value.” Some of those bonds were now due, and creditors filed suit against the federal government demanding payment in the promised gold coin. The case was of extraordinary economic, political, and legal importance.


Essay #37 – Schechter Poultry Corp v. U.S. (1935) – In Schechter Poultry Corporation v. U.S. (1935), the “Sick Chicken” case, the Supreme Court unanimously ruled that the regulations of the NIRA were unconstitutional. The Court reasoned that the NRA rules, regulations, and codes had unconstitutionally exceeded congressional authority to regulate interstate trade under the Commerce clause by regulating business transactions within a state. Moreover, the Court held that Congress had unconstitutionally delegated its legislative authority to the executive branch.


Essay #38 – Justice Louis D. Brandeis (1856-1941) – Louis Brandeis was born in Louisville, Kentucky on November 13, 1856, to Adolph and Frederika Brandeis (nee Dembitz), Jewish immigrants from Prague. Until 1916, the United States Supreme Court had never had a Jewish justice. That changed on January 28, 1916, when Louis Brandeis, the “People’s Lawyer,” was nominated to the highest court in the land by President Woodrow Wilson. Brandeis served for almost twenty-three years and authored several significant opinions during his time on the Supreme Court.


Essay #39 – Carter v. Carter Coal (1936) – As part of the New Deal, Congress enacted the Bituminous Coal Conservation Act of 1935, also called the Guffey Coal Act. James Walter Carter, president of the Carter Coal and Iron Company, immediately filed suit to stop his company from paying the excise tax and prevent its compliance with the law’s other provisions. He maintained that the Guffey Act was an overreach of Congress’s constitutional powers. The law, Carter argued, violated the Tenth Amendment because its provisions are outside of the specific enumerated powers of Congress and therefore a power reserved to the states. Further, Carter believed the 15% tax violated the Fifth Amendment because it was not actually a tax, but a penalty against any operators who refused to accept the regulations, depriving them of their property without due process.


Essay #40 – National Labor Relations Board v. Jones And Laughlin Steel Company (1937) – In National Labor Relations Board v. Jones & Laughlin Steel Company and two companion cases, the Court upheld a key piece of New Deal legislation, the controversial National Labor Relations (Wagner) Act. Of these cases, the most instrumental in the long run in expanding the power of the general government and threatening the traditional structure of federalism, was Jones-Laughlin. There, the National Labor Relations Board (NLRB) had determined that the company was engaged in “unfair labor practices affecting [interstate] commerce,” in breach of the Wagner Act. The allegation rested on the company having fired ten union organizers, thereby violating the statute’s prohibition of discrimination and coercion based on an employee’s membership in a labor union or participation in labor organizing.


Essay #41 – National League of Cities v. Usery (1976) – A robust Tenth Amendment is absolutely essential to preserving the Constitution’s establishment of a limited federal government. Usery involved a direct clash between federal and state power. The Court’s Usery majority recognized that the power to regulate state employment was effectively the power to destroy the state, which the Constitution simply did not allow.


Essay #42 – Wickard v. Filburn (1942) – In 1938, Congress passed the Agricultural Adjustment Act of 1938 (the “1938 Act”), which it enacted to address and correct provisions of the Agricultural Adjustment Act of 1933 for farm subsidies that the Supreme Court had found unconstitutional. The 1938 Act established marketing quotas and price controls. Roscoe Filburn, a farmer in Ohio, admittedly sowed twelve acres of wheat more than he was permitted under the 1938 Act, but none of it was sold on the open market. Filburn was fined $117.11 for violating the 1938 Act. Filburn sued, challenging the penalty. The main issue before the Supreme Court was whether wheat that Filburn used for personal consumption was subject to the quotas imposed by the 1938 Act and whether local commerce could be regulated by the Federal government under the Commerce Clause of the United States Constitution.


Essay #43 – Garcia v. San Antonio Metropolitan Transit Authority (1985) – In several opinions, the justices began to backtrack from the constitutional federalism of National League of Cities to the “congressional federalism,” as Douglas had called it, of the previous decades. That path culminated in Garcia v. San Antonio Metropolitan Transit Authority, a 5-4 decision in 1985. The case revisited the FLSA’s wage and hour provisions, this time to determine a municipal transit system’s status as a traditional government function.

 

LABOR

 

Essay #44 – In re Debs (1895) – Eugene V. Debs was founder of the American Railway Union (ARU). Workers at PPCC were not initially unionized so Debs brought in ARU organizers and signed up many of the disgruntled during depression, (the Panic of 1893). A local strike at the factory was largely ineffective, so Debs took the effort national. Striking workers refused to handle trains carrying Pullman cars; unfortunately for the strikers, some of these trains also carried U.S. mail. The question for the Supreme Court was whether the federal government had general authority to use force to prevent obstructions to interstate railroads and whether the courts could support such efforts through the expedience of injunctions rather than through the more formal processes of a criminal prosecution.


Essay #45 – Justice David J. Brewer (1837-1910) – David J. Brewer was born on June 20, 1837, in Smyrna, Asia Minor (today Turkey), the fourth of six Supreme Court Justices born outside the United States. Brewer was born to Emilia Brewer (nee Field) and Reverend Josiah Brewer, who oversaw a school for Greeks in Smyrna at the time. Brewer sat on the Court with his uncle, Stephen J. Field, to date the only relatives to serve contemporaneously, with Brewer serving twenty years on the Court before his death in 1910.


Essay #46 – Holden v. Hardy (1898) – The New York legislature, citing concerns for health and safety due to unsanitary conditions in bakeries, had enacted a law that limited hours of labor for bakery employees. Justice Rufus Peckham, one of the dissenters in Holden, wrote the majority opinion in Lochner v. New York, overturning the New York law. This time, the majority in the 5-4 decision ruled that the state law in question was an unconstitutional limit on freedom of contract because, in the Court’s judgment, the baking business was not an unhealthy trade. Thus the Court began the Lochner Era, becoming the final authority over all kinds of state regulations for the next thirty-two years.


Essay #47 – Lochner v. New York (1905) – The law in question that Lochner was criminally penalized for violating was the New York Bakeshop Act (1895) that the state legislature passed unanimously. The law primarily prevented employers from either allowing or requiring employees from working more than ten hours in a day or sixty hours in a week. The laws also mandated a variety of other sanitation provisions for bakeshops to protect the health of workers and consumers.


Essay #48 – Adair v. United States (1908) – In 1898, Congress passed the Erdman Act, making it a crime to fire an employee for belonging to a union. Because the Constitution does not expressly give the federal government the power to regulate employment, Congress limited the law to apply only to employees involved in interstate commerce. William Adair threatened to fire O.B. Coppage if he did not leave the union, and then fired him when he refused.  Adair was convicted of violating the Erdman Act and fined $100. He appealed the conviction, and his case was heard by the Supreme Court in the case Adair v. U.S. (1908).


Essay #49 – Coppage v. Kansas (1915) – The Coppage decision was part of the “Lochner Era” in which the Court generally protected property rights and curtailed state and federal economic regulations. The Court allowed the free market to decide, and management often hired employees with anti-union contracts to prevent labor disruptions. During the New Deal, the Court reversed this line of precedent in 1937 and allowed the different levels of government to intervene in the employer-employee relationship to strengthen the interests of organized labor unions and individual workers. During both eras, the Court struggled with defining the boundaries of constitutional regulatory power of the government in private enterprise.


Essay #50 – Justice Mahlon Pitney (1858-1924) – Mahlon Pitney was appointed to the United States Supreme Court by President William H. Taft in 1912, and served there for ten and one-half years until his retirement in December, 1922. Pitney was a systematic classical liberal who took great pains to defend strong property rights and limited government. He thought that competition had a preferred constitutional status relative to monopoly in all areas of economic life. Pitney thus recognized that ordinary contracts for employment would produce gains from trade for both sides, and that the strongest protection for any worker lay in his ability to obtain alternative employment.

 

MONEY AND FINANCE

 

Essay #51 – Sturges v. Crowninshield (1819) And Ogden v. Saunders (1827) – Two landmark cases, Sturges v. Crowninshield, 17 U.S. 122 (1819) and Ogden v. Saunders, 25 U.S. 213 (1827), established the relative power of the federal government and the states with respect to insolvent and bankruptcy laws. Sturges and Ogden together established that the United States’ bankruptcy power is not exclusive. A state may adopt a bankruptcy law so long as any exercise of that power does not conflict with any law of the United States establishing a uniform system of bankruptcy, and the law does not impair any obligation of contracts.


Essay #52 – The Legal Tender Cases (1870) – The legal tender controversy involved Supreme Court decisions that spanned a decade and a half beginning in 1870 with Hepburn v. Griswold 75 U.S. 603 (1870), in which the Legal Tender Act of 1862, 12 Stat. 345, making United States Treasury notes legal tender, was invalidated on constitutional grounds.


Essay #53 – Pollock v. Farmer’s Loan And Trust Co. (1895) – Pollock v. Farmer’s Loan & Trust Company, 158 U. S. 601 (1895), arose when a stockholder of the company sued to prevent the company from voluntarily paying a tax on its profits. The tax had been assessed pursuant to an act of Congress that levied a tax of two percent per year on incomes over $4,000.00. The Pollock case should retain more than merely historical interest, in view of the subsequent exponential growth of the national government and the concomitant growth of an arguably overreaching federal taxing authority.

 

DUE PROCESS OF LAW AND DEFENDANTS’ RIGHTS

 

Essay #54 – Ex Parte Vallandigham (1864) And Ex Parte Milligan (1866) – Article 1 Section 9, Clause 2 of the U.S. Constitution enshrines the “Great Writ,” a protection against arbitrary imprisonment that dates back at least to the Magna Carta of 1215: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” The Supreme Court’s rulings in ex parte Vallandigham and ex parte Milligan set a long-standing pattern regarding wartime cases.


Essay #55 – Chicago, Milwaukee And St. Paul Railroad v. Minnesota (1890) – The Railroad and Warehouse Commission ruled that the Railroad must charge 2.5 cents along all its routes, consistently. When the Railroad refused to do this, the state asked the Minnesota Supreme Court to direct the Railroad to comply with the Commission’s demand, which the Court did. At this point, the Railroad challenged the constitutionality of the Minnesota Court’s ruling, arguing that the regulation violated the due process clause of the 14th Amendment. In April 1888, the Minnesota Supreme Court upheld its ruling in favor of the Commission over the Railroad. When the Minnesota Supreme Court denied the Railroad’s request that the Court reconsider its ruling, the Railroad brought the case to the U. S. Supreme Court in January 1890.


Essay #56 – Meyer v. Nebraska (1923) And Pierce v. Society of Sisters (1925) – Medieval natural law writers, such as Thomas Aquinas, considered it a duty arising out of the nature of humans to care for their offspring. Presumably, that includes the duty to educate the offspring consistent with their abilities, in order to allow them to achieve the Greek arete, excellence. To perform this natural duty parents have the natural right to control their children’s upbringing within the family. The Supreme Court addressed conflicting positions in two cases, Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925).


Essay #57 – Palko v. Connecticut (1937) – Palko v. Connecticut resulted from the appeal of a capital murder conviction. Palko was charged with killing a police officer during the commission of an armed robbery. Although he was charged with first degree murder, he was convicted of second degree murder and sentenced to life in prison. The state of Connecticut appealed the sentence. The state supreme court ordered a retrial, at the conclusion of which Palko was convicted of first degree murder and sentenced to death. Palko appealed the second conviction and sentence in the state courts but lost, after which he petitioned the United States Supreme Court.

 

CRIMINAL LAW

 

Essay #58 – Furman v. Georgia (1972) – The question the Supreme Court decided was more specific than simply whether the death penalty was constitutional. As four of the justices pointed out, the Constitution specifically includes the death penalty in the 5th Amendment (referred to in the Constitution as a “capital” crime). Rather, the Supreme Court sought to answer the question of whether or not the death penalty had been applied fairly.

 

CIVIL RIGHTS

 

Essay #59 – Dred Scott v. Sandford (1857) – The Dred Scott decision is a landmark decision because it answered questions regarding slavery that the Court had not previously addressed. It is also one of the most infamous decisions, furthering the great divide facing the nation regarding the question of slavery and moving the country further down the path toward the Civil War. The Dred Scott decision undermined the prestige of the Supreme Court and legal scholars consider it to be the worst decision ever issued by the Supreme Court. The Dred Scott decision was overturned when the Civil War ended and the Civil War Amendments were ratified.


Essay #60 – Dred Scott v. Sanford (1857) (Part 2) – In the 1850s, the United States was deeply divided over the issue of slavery and its expansion into the West. The northern and southern sections of the country had been arguing over the expansion of slavery into the western territories for decades. The Missouri Compromise of 1820 had divided the Louisiana Territory at 36’30° with new states north of the line free states and south of the lines slave states. The United States faced this combustible situation when Chief Justice Roger B. Taney sat down in late February 1857, to write the infamous opinion in the case of Dred Scott v. Sandford that would go down as a travesty of constitutional interpretation and one of the greatest injustices laid down by the Supreme Court.


Essay #61 – Ex Parte Merryman (1861) – On April 27, 1861, President Abraham Lincoln took one of the most dramatic steps ever taken by an American chief executive, and suspended the privilege of the writ of habeas corpus. He did so, under a provision in Article 1, section 9 of the Constitution: The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. Lincoln argued that he was obligated by the presidential oath to see that the laws were faithfully executed. If the only means for doing so was a suspension of the writ and the arrest of Merryman, then he would be culpable for not having taken such a step.


Essay #62 – Chief Justice Roger B. Taney (1777-1864) – Roger B. Taney was born in Calvert County, Maryland, on March 17, 1777. He was born and raised Catholic by his parents, Michael and Monica. Supreme Court Chief Justice John Marshall, the fourth Chief Justice, served thirty-four-and-a half years in that role. Roger B. Taney, who succeeded Marshall, served for twenty-eight-and-a- half years, including during almost the entirety of the Civil War. (Marshall and Taney are, respectively, the first- and second- longest serving Chief Justices.)


Essay #63 – Chief Justice Roger B. Taney (1777-1864) (Part 2) – Supreme Court Justice Roger B. Taney was born and raised on a southern Maryland tobacco plantation. He attended Dickinson College and received a classical education before reading law under Jeremiah Chase, one of three judges on the state’s General Court. Justice Taney passed the bar exam and married the sister of his close friend, Francis Scott Key. He entered politics and won a seat in the Maryland House as a Federalist. He supported the War of 1812 and broke with the Federalists over their opposition to the war. Justice Taney adopted Jeffersonian views that would lay the foundation for the rise of the Democratic Party.


Essay #64 – The Slaughterhouse Cases (1873) – After the adoption of the 14th Amendment, it was only a matter of time before the Supreme Court would become involved in its interpretation. One of those early cases arose from a challenge to an 1869 Louisiana law that granted a 25-year monopoly to a company to operate slaughterhouses in and around New Orleans. While the historical corruption of Louisiana politics always arouses suspicion when exclusive franchises are awarded, the law was presented as addressing public health issues that arose with large-scale butchering of animals in growing cities. Independent butchers, who had to use this monopoly’s facility to process the livestock they purchased, claimed that the state violated the right to perform their trade, protected under the 13th and 14th Amendments and the 1866 Act.


Essay #65 – Justice Stephen J. Field (1816-1899) – It is an understatement to describe Stephen Johnson Field as a giant among Supreme Court justices. He served more than 34 years on the Court and authored 544 opinions. He was the son of David Dudley Field and Submit Dickinson, both with roots directly traceable to early New England Puritans. Best-known among his eight siblings were David Dudley Field, Jr., a prominent New York attorney who led the movement to codify the common law that became the “Field Codes.”


Essay #66 – Civil Rights Cases (1883) – The Thirteenth Amendment to the U.S. Constitution, ratified in 1865, outlawed slavery throughout the United States. The Fourteenth Amendment, ratified in 1868, defined citizenship and prohibited the states from violating equal protection and due process of law for all persons. During Reconstruction following the Civil War, states of the former Confederate States of America were required to ratify these amendments before readmission to the Union, and as long as Union troops occupied the defeated South, the rights of African Americans were somewhat protected. Once Reconstruction formally drew to a close in 1876, however, freedmen and their descendants lost these constitutional legal protections and were unable to put into effect their rights to life, liberty, and property.


Essay #67 – Plessy v. Ferguson (1896) – In 1890, Louisiana passed the Separate Car Act which required railroads to provide separate accommodations, including separate cars, for blacks and whites. The Plessy decision is a landmark decision that upheld the “separate but equal” doctrine, which would remain the law of the land for almost sixty years until 1954, when the Supreme Court issued its unanimous decision in Brown v. Board of Education. Harlan, the lone dissenter in Plessy, was ultimately proved correct.


Essay #68 – Justice John Marshall Harlan (1833-1911) – John Marshall Harlan was born at Harlan’s Station, near Danville, Kentucky, to Elizabeth (nee Davenport) and James Harlan. Justice Harlan served more than thirty-three years on the Supreme Court, the sixth longest term in the Court’s history. During his long tenure, Harlan became known as “The Great Dissenter,” signing more than 300 dissenting opinions from 1877-1911. Harlan’s grandson, John Marshall Harlan II, would later also serve on the Supreme Court.


Essay #69 – The Insular Cases (1901) – In a series of cases called the Insular Cases, the Supreme Court over two decades attempted to hammer out the constitutional ramifications of the United States’ limited foray into colonialism. The Insular Cases removed constitutional challenges to popular political initiatives of overseas expansion ratified by the election of 1900.


Essay #70 – Jones v. Alfred H. Mayer Co. (1968) – The question before the Court was two-fold. First, does the law asserting that “[a]ll citizens … shall have the same right … [to] purchase… real and personal property” apply to sale by private parties? Second, does Congress have the constitutional power to prohibit all racial discrimination, private and public, in the sale and rental of property? The case was argued before the Supreme Court April 1-2, 1968.


Essay #71 – United States v. Carolene Products Co. (1938) – If you concede the constitutionality of the administrative state, where does that leave citizens’ liberties? That is, if you claim (some might say pretend) that the United States Constitution authorizes unelected, tenured officials the power to frame, enforce, and adjudicate laws you grant a privilege that looks very much like the abrogation of the Constitution’s separation of powers, brushing aside Thomas Jefferson’s maxim that the accumulation of these powers in one set of hands is the definition of tyranny. Under these circumstances, how will citizens’ liberties be protected? Who will do it? This is the question addressed in the Carolene Products case.


Essay #72 – United States v. Carolene Products Co. (1938) (Part 2) – This case belongs to a string of cases dating from the late nineteenth century involving substitute or imitation dairy products. Carolene Products arose from a controversy over “Milnut,” a beverage made from mixing skimmed milk with another product that is not milk fat (usually vegetable oil, in this case, coconut oil).


Essay #73 – Bolling v. Sharpe (1954) And Brown v. Topeka Board Of Education (1954) And Cooper v. Aaron (1958) – In December 1952, African-American lawyer Thurgood Marshall appeared before the Supreme Court representing a seven-year-old black girl from Topeka, Kansas named Linda Brown who had to ride the bus to her segregated black school instead of walking to the neighborhood school. Marshall and other NAACP Legal Defense Fund lawyers were there for three days of oral arguments in five consolidated cases dealing with segregated schools. The five cases would eventually be consolidated under Brown v. Board of Education.


Essay #74 – Chief Justice Earl Warren (1891-1974) – Chief Justice Earl Warren was born in Los Angeles, California, to Mathias H. Warren, a Norwegian immigrant, and Crystal (nee Hernlund). Warren graduated from the University of California, Berkeley in 1912 with a B.A. in political science, and then entered the Berkeley School of Law, where he graduated in 1914. He later served as governor of California. Nine chief justices and nearly 120 years separate John Marshall from Earl Warren. While each chief has influenced the Supreme Court and helped to shape its history, Warren and Marshall are often mentioned together as the greatest of the 17 chiefs.


Essay #75 – Griggs v. Duke Power (1971), California v. Bakke (1978), USWA v. Weber (1979), Fullilove v. Klutznick (1980) – Into the twenty-first century, the Supreme Court continues to adjudicate the highly controversial questions related to affirmative action. The Supreme Court has tried to thread a fine line between those opposing beliefs. Supreme Court decisions that followed the 1950s and 1960s civil rights movement furthered discussions on improving civil rights. Related cases in this essay focus on these issues: Griggs v. Duke Power (1971), California v. Bakke (1978), USWA v. Weber (1979), Fullilove v. Klutznick (1980).


Essay #76 – Richmond v. J.A. Croson Co. (1989) – The decision in Richmond v. J.A. Croson Co. (1989) banned a state affirmative action program that chipped away at affirmative action but did not rule the idea unconstitutional. It contributed to muddying the controversial issue even more. The disputes among the justices were representative of the continuing popular contention over the issue.

 

FIRST AMENDMENT RIGHTS

Establishment Clause:

 

Essay #77 – Abrams v. United States (1919) – “Congress shall make no law…abridging the freedom of speech, or of the press ….” Though there is some debate over its original meaning, the First Amendment is commonly thought to have prohibited administrative prior restraint on public speaking or writing. During the war, the defendants in Abrams had distributed circulars (some by throwing them out a window) that were alleged, among other similar counts, to violate the amended Espionage Act by containing “disloyal, scurrilous and abusive language about the form of government of the United States.” Abrams v. United States involved prosecution for anti-war leaflets in violation of the Sedition Act of 1918, which was a series of amendments to the Espionage Act.


Essay #78 – Justice Oliver Wendell Holmes, Jr. (1841-1935) – Justice Oliver Wendell Holmes, Jr., after serving as a Massachusetts Supreme Court judge for twenty years, was nominated to a vacancy on the Supreme Court of the United States and served for almost thirty years on the highest court in the nation, retiring at age 90. Justice Holmes took his seat on the United States Supreme Court in 1902, at the age of 61, becoming the 58th Justice of the Supreme Court, and one of the most quoted justices in the Supreme Court’s history as well as one of the best known of the justices.


Essay #79 – Engel v. Vitale (1962) And Everson v. Ewing (1962) – In Engel v. Vitale (370 U.S. 421 [1962]), the Supreme Court took up the question of school prayer and rejected as unconstitutional the New York state practice of beginning each school day with the recitation of the Regent’s Prayer. It was the first of a series of decisions regarding public prayer. While the Court’s doctrine has developed over time—above all, in explicitly distinguishing prayer in schools from prayer in other public settings—many of the issues and many of the problems in its jurisprudence were already evident in this first case.


Essay #80 – Engel v. Vitale (1962) And Everson v. Ewing (1962) (Part 2) – “Almighty God, we beg Thy blessings upon us, our parents, our teachers, and our country:” Engel v. Vitale (1962). In the Everson v. Board of Education of Ewing Township (1947), the Supreme Court decided that it was constitutional for the state of New Jersey to reimburse parents for the cost of bus transportation, even to a parochial school. In rendering the decision, the Court attempted to use evidence from the nation’s founding to prove that there was a “wall of separation between church and state.” The Engel v. Vitale (1962) decision had a fundamental impact shaping how the Court interpreted schools and prayer under the Establishment Clause of the First Amendment. The issue continues to be part of America’s culture war over values.

 

Freedom of Speech:

 

Essay #81 – Gitlow v. New York (1925) And Bradenburg v. Ohio (1969) –  The late 19th and early 20th Centuries saw the passage of a number of state and federal laws allowing prosecutions for political speech that advocated or implied violence against government. In 1917 and 1918, for example, Congress passed the Espionage Act, the first major federal law against seditious speech since the Sedition Act of 1798. The Supreme Court backed away from the “clear and present danger” test in deciding the case of Gitlow v. New York (1925). Starting in the 1950s, the Supreme Court began to shift toward Justice Holmes’ “clear and present danger” test through a series of cases involving the communication of communist ideas. In the 1960s, the Supreme Court started to move toward a broader view of the “clear and present danger” test, culminating in the 1969 case of Brandenburg v. Ohio.


Essay #82 – Gitlow v. New York (1925) And Bradenburg v. Ohio (1969) (Part 2) – Benjamin Gitlow and Clarence Brandenburg would seem to have had little in common, but each was responsible for bringing a case that resulted in an important revolution in interpreting the meaning of free speech. The Court overturned the syndicalism statute and crafted a new test to be employed in free speech cases. They ruled that “Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”


Essay #83 – Chief Justice William Howard Taft (1857-1930) – William Howard Taft was born on September 15, 1857, in Cincinnati, Ohio, to Alphonso Taft, a lawyer and judge who had served in President Ulysses S. Grant’s cabinet as Attorney General, and Louise (nee Torrey). When Chief Justice Edward White died in May 1910, President Warren G. Harding immediately turned to former President William Howard Taft, who had appointed White to the Supreme Court, to succeed White. Taft served on the Supreme Court for just less than ten years until his resignation on February 3, 1930.


Essay #84 – Dennis v. United States (1951) – In Dennis v. United States, the Supreme Court explained, “Whatever theoretical merit there may be to the argument that there is a “right” to rebellion against dictatorial governments [that argument] is without force where the existing structure of the government provides for peaceful and orderly change.” In other words, while the people retain the right to freely elect their representatives, and there is an orderly process in place to change the government, the people do not possess a right to simply cast the Constitution aside.


Essay #85 – Justice Hugo Black (1886-1971) – Hugo Black served more than thirty-four years on the Supreme Court, the fifth longest tenure in the Court’s history. During his time on the Court, Black developed a reputation as a justice who strongly believed the United States Constitution was to be given its plain and original meaning. Black was born on February 27, 1886, in Ashland, a small town in Clay County, Alabama, to Marsha (nee Toland) and William Lafayette Black. Black’s family were farmers. Originally following in his brother’s footsteps, Black attended Birmingham Medical School, but left that school to attend the University of Alabama Law School, where he graduated in 1906 at the age of 20.

 

Freedom of the Press:

 

Essay #86 – New York Times v. Sullivan (1964) – The Supreme Court issued a unanimous decision written by Justice William J. Brennan, Jr., deciding in favor of the newspaper. Brennan wrote, “[W]e consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” An important question was whether the statements that Sullivan believed attacked him had lost First Amendment protection because they were false and allegedly defamatory.


Essay #87 – Justice William J. Brennan, Jr. (1906-1997) – On July 20, 1990, Associate Justice William J. Brennan, Jr. resigned from the Supreme Court of the United States, after serving nearly 34 years (including three months with a recess appointment and two months while his nomination was confirmed). Only five justices served longer on the Supreme Court and only one justice wrote more opinions. Brennan was an election year appointment by President Dwight Eisenhower.

 

PERSONAL CONDUCT AND PRIVACY

 

Essay #88 – Griswold v. Connecticut (1965) – In June, 1961, the Supreme Court declined to rule on the constitutionality of an 1879 Connecticut law that prohibited the use of contraceptive devices for the purpose of preventing pregnancy, as well as the counseling of such use. The law applied to married and unmarried couples. Justice Harlan emphasized in (the related case) Poe v. Ullman (1961), not only may a state through its laws seek to promote the moral soundness of its people, but every society in civilized times has done so. The issue was debated again in Griswold v. Connecticut (1965).


Essay #89 – Roe v. Wade (1973) And Planned Parenthood Of Southeastern PA v. Casey (1992) – The issue of abortion was highly contentious in American society before Roe v. Wade. The case started when “Jane Roe” (later identified as Norma McCorvey) had an abortion. She challenged a restrictive Texas abortion law and the case eventually made it to the Supreme Court. The Supreme Court legalized abortion in the United States according to the trimester framework, but it did not quell the fierce contention in American society. Roe v. Wade raised many troubling questions for the Supreme Court. It became a central issue and litmus test in the growing culture wars.


Essay #90 – Lawrence v. Texas (2003), United States v. Windsor (2013) And Obergefell v. Hodges (2015) – In 1996, the United States Congress passed the Defense of Marriage Act (“DOMA”) which provided in its Section 3 that a federally-defined marriage was between one man and one woman. On June 26, 2015, the Supreme Court announced its decision in Obergefell v. Hodges related to the definition of marriage.


Essay #91 – Justice Antonin Scalia (1936-2016) – During the Senate hearings on his nomination to the Supreme Court, Judge Neil Gorsuch commented, “Justice [Antonin] Scalia’s legacy will live on a lot longer than mine.” Whether or not this is a prophetic remark is too early to tell. However, Judge Gorsuch’s statement recognizes the enormous impact that Scalia has had–and will have–on American constitutional law. He graduated from Georgetown University and Harvard Law School, in both cases at or near the top of his class. After jobs in a law firm, as a law professor at the Universities of Virginia and Chicago, and in the federal government, he was appointed to the Court of Appeals for the District of Columbia Circuit. President Ronald Reagan appointed Scalia to the highest court in 1986.

 

FOREIGN POLICY AND TREATY LAW

 

Essay #92 – Cherokee Nation v. Georgia (1831) And Worcester v. Georgia (1832) – In 1827, the state of Georgia passed several acts that affected the Cherokee Nation within Georgia’s borders. Traditionally and legally, the Cherokee had their own criminal jurisdiction. The Georgia legislature also declared the Cherokees had no legal title to the land that the state would respect. All contracts made between Georgia and the Indians were voided. The Cherokee however, chose the path to the Supreme Court, where they declared to be “the Cherokee nation of Indians, a foreign state, not owing allegiance to the United States, nor to any state of this Union, nor any prince, potentate or state, other than their own.”

 

MODERN SUPREME COURT CASES

 

Essay #93 – Gonzales v. Carhart (2007) – Gonzales v. Carhart is one of those rare cases that highlights the difference an election can make to Supreme Court decision-making. While the Justices of the Supreme Court are (arguably) largely immune from political pressure because they serve for life, they are nominated by Presidents and confirmed by Senates that answer to the People. For this reason, the makeup of the Court is unavoidably a product of the political process, and this process can yield strikingly different results depending on the makeup of the bench. Gonzales presented to the Supreme Court for a second time the question of the constitutionality of statutory prohibitions on “partial-birth abortion.”


Essay #94 – District of Columbia v. Heller (2008) – District of Columbia v. Heller provided clarity to a long and quarrelsome debate about the application of the Second Amendment. The crux of the case was whether the right to “keep and bear arms” was an individual right or a collective right associated with regulated militias. The Supreme Court (5-4) ruled the Second Amendment an individual right. Specifically, the case challenged overly restrictive gun laws of the District of Columbia.


Essay #95 – District of Columbia v. Heller (2008) (Part 2) – The U.S. Supreme Court’s 2008 District of Columbia v. Heller case considered whether the Second Amendment to the U.S. Constitution protects an individual right to possess and use privately-owned firearms. The Second Amendment to the United States Constitution states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The Founding Fathers drafted and ratified the Second Amendment in order to protect the individual right of citizens to possess and carry their personal arms—most notably but not exclusively firearms. The Founders did not believe that they were creating a new right in the Second Amendment; rather, they insisted that they were simply preserving a right that predated the birth of the American Republic.


Essay #96 – McDonald v. Chicago (2010) – The U.S. Supreme Court’s 2010 McDonald v. Chicago case considered whether the Second Amendment’s protection of the individual right to possess and use privately-owned firearms as affirmed in the Court’s 2008 District of Columbia v. Heller decision also applies to state and local governments.


Essay #97 – Bush v. Gore (2000) And Bush v. Palm Beach County Canvassing Board (2000) – The 2000 presidential election came down to who won Florida. Twenty-seven days after the election, the presidency remained undecided. Surrogates for George W. Bush and Al Gore clashed in a close-quarters fight that seemed to have no end. Two interrelated Supreme Court cases finally resolved the highly contentious 2000 election. The ruling on December 4 was a punt, and the 7-2 Equal Protection Clause violation has been nearly forgotten. Post-election writings about the issue emphasize the 5-4 Court decision to call a halt to the recounts.


Essay #98 – Crawford v. Marion County Election Board (2008) – In 2005, the State of Indiana passed a state law requiring that most Indiana voters who voted on Election Day would have to show government-issued photo ID before voting. In 2008, the U.S. Supreme Court heard the case Crawford v. Marion County Election Board. The case was named for Indiana State Representative William Crawford, the lead Democrat legislator who challenged the law, and election officials in Marion County, Indiana (named after Revolutionary War Hero Francis Marion, “The Swamp Fox”). The case dealt with whether or not the 14th Amendment to the Constitution protects a right to vote without showing photo identification.


Essay #99 – Citizens United v. Federal Election Commission (2010) – The case reflected the Court’s traditional constitutional jurisprudence about campaign financing and freedom of speech that distinguished between contributions and expenditures. Federal law initially only prohibited direct contributions to candidates by corporations. In 1947, for the first time, Congress prohibited independent political expenditures from corporations and unions on behalf of candidates. Although the Court would not squarely reach the constitutionality of such restrictions for three decades, questions were raised about their constitutionality.


Essay #100 – Justice Anthony Kennedy (Born 1936) – Anthony Kennedy was born in California in 1936, and attended Stanford University and the London School of Economics before graduating from Harvard Law School. He practiced law and served as a law professor because being appointed to the bench—for the Ninth Circuit Court of Appeals—in 1975 by President Gerald Ford. In 1987, Justice Lewis Powell retired from the Supreme Court. Justice Kennedy was then nominated and confirmed under President Reagan.


Essay #101 – Hosanna-Tabor Evangelical Lutheran Church And School v. Equal Employment Opportunity Commission (2012) – The First Amendment to the U.S. Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” In Hosanna-Tabor Lutheran Church and School v. Equal Employment Opportunity Commission (2012), the constitutional question was the extent to which the “ministerial exception” applies in a dispute between an elementary school operated by a church and a teacher in that school.


Essay #102 – Hosanna-Tabor Evangelical Lutheran Church And School v. Equal Employment Opportunity Commission (2012) (Part 2) – In Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission (2012), the federal government tried to force a church, against its will, to hire a minister to teach in the church’s school. The US Supreme Court held that the federal government could not force the church to do so. Churches are free to shape their faith and mission under the Free Exercise clause by selecting their own ministers and religious teachers. The First Amendment protects religious liberty: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The first clause is known as the Establishment Clause. The second clause is known as the Free Exercise Clause.

 

CONCLUSION

 

Essay #103 – How The Supreme Court Constitutes America – This series of studies has shown how the Supreme Court has expounded and defined U. S. Constitutional law since 1789…contributing instead to the transformation of the original American regime into a new regime, more centralized and bureaucratic, designed for some purposes that diverge from those of the Framers. The Framers’ regime was a republic, distinguished from tyranny and from the absolute rule they called “despotism” first of all by its respect for and protection of the unalienable or natural rights which governments are duty-bound to secure.

This is the link between Constitutional law and the laws of Nature and of Nature’s God enunciated in the Declaration of Independence. The Framers’ republicanism was first and foremost a natural-rights republicanism, as seen in the Constitution’s preamble. Separated and balanced powers ensure that the legislative, executive, and judicial branches remain distinct but interdependent because they all wield, in Madison’s words, “the means of keeping each other in their proper places.” As late as 1892, the Supreme Court ruled in Field v. Clark that Congress may not give away its legislative power to the other branches.

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Guadalupe Rios

Guadalupe Rios was a proud mother of nine children, who dedicated her career to Catholic Charities and was the personification of the American Dream. She passed away peacefully on June 27 of complications related to her previous two strokes and a seizure. She literally died of a broken heart following the passing of her eldest son Toby Rios, in January.

Born in Guadalajara, Jalisco, Mexico, she arrived in Hayward, CA in 1958 to pursue a better life for her family. All nine children attended St. Clements and Moreau Catholic High School, and she somehow managed to send all nine children to college as a single mother.

Her cooking was legendary. She could make a meal using simple ingredients and have it taste like a delicacy. Her life was a flurry of activities to make sure that the house was always clean, the kids were fed, and the day always ending with a family rosary. She always found ways to support the family, along with St. Clements parish as the family village.

Guadalupe was intent not to send her kids to public school but instead receive the best education possible. She also lived by example to live her own life to the fullest including her own successful career at Catholic Charities where she was the Director of several programs that provided employment services for people over 55 years old.

She continued to remain very active in the St. Clements community including becoming a founding member of the parish council and the person responsible for ensuring that the parish provided a Spanish-language mass. On weekends, the family would spend their days on a picnic, playing sports together and of course, Sunday mass. She enjoyed listening to music, especially mariachi music from her birthplace along with an occasional song by Luis Miguel, John Denver, or Anne Murray.  She also loved most cooking shows and definitely would have given any of them a run for their money. And she had many friends and networks who helped her along the way. She spent over 15 fabulous years at Kottinger Gardens in Pleasanton, CA and following her first stroke, moved to Cogir of Stock Ranch in Citrus Heights, CA.

She also was able to experience many milestone events including several visits with President Biden, the welcoming reception for Pope Francis at the White House and most recently, a backstage experience with Alejandro Fernandez who asked for her blessing. She was a force to be reckoned with, & the world is a much better place because of her.

She is survived by her children, Ofelia, Jaime, Mary, Irma, Rosie, Angel, Ray, and Maggie. She is also blessed with 13 glorious grandchildren, Patrick, Gio, Chris, Garrison, Michael, Justin, Alexis, Ariel, Joey, Tyler, Brooke, Alia, and Carlee and three great grandchildren, Avery, Bella, and Adam, all of whom are all the light of her life. She gave them the prospect of a better life in the land of opportunity and her impact to the community and her family will always live through them and everyone she has touched. Services will be held at St. Clements Church on Thursday, July 13 at 11:00 a.m. followed by the burial at Holy Sepulchre in Hayward, CA. Flowers and cards can be sent to Holy Sepulchre c/o Molly Rogers, 1051 Harder Road, Hayward, CA 94542.

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90 Day-Study-Declaration-2025

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Essay. 103: General Survey Of The Subject (Vol. 2 Pt. 4 Ch. 8)

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Guest Essayist: Elizabeth Amato

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 673 (start at chapter 8 heading) – 676 of this edition of Democracy in America.

In the final chapter of Democracy in America, Alexis de Tocqueville says that he has one task left—to provide a summative judgment on how democracy, or the equality of conditions, will help or hinder “the lot of man.” In so doing, he provides a robust account of democratic greatness and offers cautious hope for the future of democracy.

Before giving his opinion, De Tocqueville hesitates. He says “I feel my sight becoming blurred and my reason wavering.” He is less confident about this final remaining task.

What prompts this circumspection? New democratic societies, De Tocqueville points out, are “only being born” and so “[t]ime has not yet fixed its form.” Here De Tocqueville revisits (and gently revises) a metaphor he used at the beginning of his book in which he compared newborns and nations. There he boasted that the best way to understand the habits, passions, and characteristics of a man’s maturity was to study him as a child. The whole man was “in the swaddling clothes of his cradle” (1.1.2). Likewise, nations always feel the effect of their origins. The problem that De Tocqueville admits here is that if the “whole” is contained in the beginning, then there’s no room for human freedom to play a role. 

To some extent, the future of democracy is open ended. Much will depend on what Americans choose to do. The character of American democracy could be resentful and small-minded. Or it could be generous and magnanimous. It will be up to particular peoples and statesmen to pursuit the advantages and resist the weaknesses of democracy. 

The principle effect of democracy on society, De Tocqueville observes, is to reduce all extremes. Most people will be of the “middling” sort in terms of wealth, fortune, education, arts, and ambition. Most people will be lifted up but at the cost of lowering the few at the top. The rise of democracy means less individual excellence but much less cruelty and injustice. Education will be more widely diffused throughout the population. Manners and mores will be “mild” and “legislation humane.” 

De Tocqueville makes a confession. He laments this brave new world in which humanity is an “innumerable crowd” of mediocrity; he regrets the passing of aristocratic brilliance. He recognizes that his view is partial and that it is a “weakness.”

In order to correct his limited point of view, De Tocqueville adopts the perspective of God whom he credits as being able to see “the whole human race and each man.” From this divine vantage, De Tocqueville says that democracy is more just and “its justice makes for its greatness and its beauty.” 

The grandeur and nobility of aristocracy that delights De Tocqueville personally, he concedes, comes at the expense of justice. In a democracy, more people get what they merit. Moreover, it is enough for democratic peoples to strive “to be honest and prosperous.”

De Tocqueville turns to consider what should be done. In his own time, reactionaries against democracy and liberalism, out of nostalgia, strove to preserve aristocracy and inequality. Aristocracy, he firmly says, is not coming back.

The political goal, De Tocqueville says, isn’t to cling to the benefits that aristocracy produced but to pivot to “securing the new goods that equality” offers. De Tocqueville’s moderate and humane liberalism teaches the weaknesses of democracy—not to scorn democracy—but in order to guard against them and to obtain the benefits that equality of conditions makes possible. As he prudently advises, “we ought not to strive to make ourselves like our fathers, but strive to attain the kind of greatness and happiness that is proper to us.” 

De Tocqueville is “full of fears and full of hopes” for the future of democracy. Rival ideologies to democracy will emerge that will introduce new and brutal justifications for inequality. With great prescience, De Tocqueville warns against pseudo-scientific justifications for the superiority or inferiority of peoples based on history, race and ethnicity, and geography. He warns his readers against such doctrines and calls them “false and cowardly.” These ideologies will not mark a return to the brilliance and nobility of aristocracy. Rather, they will produce “weak men and pusillanimous nations” as the totalitarian regimes of the 20th century and various racial supremacy doctrines demonstrate.   

De Tocqueville saves his best argument for democracy for the very end. Democracy is not only more just but more accurately mirrors the human condition. Aristocracy is based on an exaggeration of human freedom for a very few and exaggeration of human dependence for the many. The truth is in the middle. Individuals (as well as nations and peoples) are caught in the middle—neither wholly free nor wholly dependent. Every person lives within a “fatal circle” but that circle is expansive. De Tocqueville says “within its vast limits man is powerful and free.” It is up to individuals and nations to reach for the greatness within their grasp. 

Elizabeth Amato earned her B.A. at Berry College and her M.A. and Ph.D. at Baylor University in political science. She is the author of The Pursuit of Happiness and the American Regime: Political Theory in Literature (Lexington Books, 2018). She is currently an Associate Professor of Political Science and International Affairs at Gardner-Webb University.

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Essay 102: Continuation Of The Preceding Chapters (Vol. 2 Pt. 4 Ch. 7)

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Guest Essayist: Philip Bunn

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 666 – 673 of this edition of Democracy in America.

In Chapter 7 of Part 4 of the Second Volume of Democracy in America, Tocqueville rounds out a thought he has been developing in preceding chapters. In Chapter 6, De Tocqueville has told us that democracies have to fear a particular kind of despotism. While the language of “despot” and “despotism” recalls the Caesars and oppressive tyrants, De Tocqueville says that “if despotism came to be established in the democratic nations of our day… it would be more extensive and milder, and it would degrade men without tormenting them” (662). In other words, in a democracy, the despotism most likely to emerge is one of a schoolmaster-like despot, exercising “tutelary power” over a mass of people “who revolve on themselves without repose, procuring the small and vulgar pleasures with which they fill their souls” (663). The democratic spirit risks creating a mass of disconnected individuals, each pursuing petty pleasures, and in so doing opening the door for a “paternal power” that “seeks only to keep them fixed irrevocably in childhood” (663). 

It is important to retread this ground going into chapter 7, because as De Tocqueville tells us, “I believe it is easier to establish an absolute and despotic government in a people where conditions are equal than in any other, and I think that if such a government were once established in a people like this, not only would it oppress men, but in the long term it would rob each of them of several principle attributes of humanity” (666). This introduces two questions: Why are democratic societies particularly vulnerable to despotism? And what are these “principal attributes of humanity” that are lost under such a thoroughgoing despotism? 

Chapter 6, as a preface to Chapter 7, helps us understand the vulnerability of democracies, where conditions are equal: the mass of people are incentivized to pursue petty pleasures at the expense of civic engagement. A political leader in such a circumstance can make his people happy simply by efficiently providing those petty pleasures that they desire, while slowly taking over the reigns of civic life from the people. “So it is,” De Tocqueville says, “that every day it renders the employment of free will less useful and more rare; it confines the action of the will in a smaller space and little by little steals the very use of free will from each citizen” (663). This “free will,” then, seems to be part of the “principal attributes of humanity” that De Tocqueville fears democratic citizens will be robbed of, echoing his earlier concerns from Volume two, Part Two, Chapter 20 on the mental harms done to industrial laborers. 

This process of encroachment by a democratic despot, described in Chapter 6, illuminates De Tocqueville’s concern over a centralized political leadership described in Chapter 7: “It results from the very constitution of democratic nations and their needs that the power of the sovereign must be more uniform, more centralized, more extended, more penetrating, and more powerful in them than elsewhere” (666). In the absence of great persons taking up civic leadership, such as De Tocqueville expects aristocracies to produce, the government takes a more heavy and thoroughgoing administrative hand to ensure the peace and safety of the people. This naturally opens the door for the “absolute and despotic government” that De Tocqueville fears. 

What can be done to both resist tyranny and preserve the “principal attributes of humanity” in such a condition? If hereditary aristocrats are anathema to the democratic condition, perhaps, De Tocqueville reasons, one could “artificially create something analogous” to an aristocratic person (667). Perhaps a pseudo-aristocratic person could be constructed through voluntary association of democratic individuals. De Tocqueville writes, “I firmly believe that one cannot found an aristocracy anew in the world; but I think that when plain citizens associate, they can constitute very opulent, very influential, very strong beings—in a word, aristocratic persons” (668). 

De Tocqueville’s reasoning here mirrors the reasoning Aristotle employs in the Politics when discussing the advantages of rule by the many. True, Aristotle and De Tocqueville together concede, any one person chosen at random may lack the high virtues we might hope for from an educated aristocrat. However, in combination, the weaknesses of any given individual may be buoyed up by the strengths of the many, and the advantages of combined resources will become evident, like everyone pitching in financially for a dinner party better than any one person could purchase. These voluntary associations bring with them a kind of political strength: “A political, industrial, commercial, or even scientific and literary association is an enlightened and powerful citizen whom one can neither bend at will nor oppress in the dark, and who, in defending its particular rights against the exigencies of power, saves common freedoms” (668). This is thus some ground of hope for readers in a generally pessimistic section of the text: associations act as bulwarks against democratic despots, replicating the “greatest political advantages of aristocracy without its injustices or dangers” (668). 

Philip D. Bunn is an assistant professor of political science at Covenant College in Lookout Mountain, Georgia. His research has been published in Political Research Quarterly and American Political Thought, and his reviews and essays have appeared in The Review of Politics, Plough Quarterly, Current, and The University Bookman, among other publications.

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Essay 101: What Sort Of Despotism Democratic Nations Have To Fear (Vol. 2 Pt. 4 Ch. 6)

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Guest Essayisy: William Duncan

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 661 (start at chapter 6 heading) -665 of this edition of Democracy in America.

Alexis de Tocqueville is known as the most perceptive observer of the United States in the 19th Century, but at the end of volume two of Democracy in America, he demonstrates another, and perhaps even more remarkable, gift—foresight.

Specifically, while in the United States, De Tocqueville observed some tendencies that he thought could lead to a form of government that then seemed confined only to the past, despotism. Despotism is a loaded term. It refers to a government system where a single person or group exercises all power but usually indicates an arbitrary and oppressive system characterized by violence and repression.

De Tocqueville’s unique insight was that a form of despotism was possible even in democratic societies where people choose their own leaders.

In fact, ancient despotisms, like the Roman Empire, had natural limits on their power. Though a Caesar could exercise arbitrary power, the actual scope of the ruler’s power would be limited by differences in the groups of people he ruled and the wide scope of the territories they administered. They could make life miserable for some people or groups but others could exist without much direct interaction with the ruler.

By contrast, the despotism that arose in democratic nations “would be more extensive and milder and it would degrade men without tormenting them.” More people would be impacted by centralized authority but those who exercised that authority would usually not do so in the violent and extreme ways that we would usually associate with despotic government like Hitler’s Germany.

Democratic nations could “penetrate the sphere of private interests more habitually and more deeply” than ancient tyrants could. In other words, the variety of different institutions that provide identity and purpose to individuals—like family, community, and religion—would become less important as people become more alike. This would allow government more direct access to its citizens, but it also meant governments would shy away from extreme forms of repression, at least most of the time.

Citizens of democracies, De Tocqueville believed, would themselves become less likely to have extreme aspirations and habits. Thus, the new centralization of power they experienced would be unlike any that had existed before. What would it look like? 

In the then-future democratic society, people would be interested largely in pursuing their own self-interest. Though they live around many others, they would largely be isolated, except perhaps for immediate family and a few close friends.

Above these citizens, however, would be an “immense tutelary power” or as we might say a “nanny state.” The government would promise to ensure citizens could enjoy what they wanted and would look after them. To do so, its power would be highly centralized: “absolute, detailed, regular, far-seeing.” Unlike a parent preparing children to become adults, “it seems only to keep them fixed irrevocably in childhood; it likes citizens to enjoy themselves provided that they think only of enjoying themselves.”

In exchange for securing the happiness and security of citizens and providing for their needs, it would exercise complete authority over everything they did. Thus, individual choice would be more constrained and less relevant because government would regulate all of society “with a network of small, complicated, painstaking, uniform roles.”

This allows government to shape citizens without force, but it also means people will have less significant responsibilities for themselves so that they all become “nothing more than a herd of timid and industrious animals of which the government is the shepherd.” 

This does not require doing away with elections of the forms of self-government. In fact, it will be more effective if people believe they are choosing their own “schoolmasters” and thus absolute, centralized power is really a manifestation of their choice.

This is still, however, a despotism because the way absolute power is exercised, De Tocqueville argues, is not as important as the fact that government demands total obedience. It is still better than a crude dictatorship, of course, but those who are subject to a mild despotism are still servants to a centralized state. 

As an aside, De Tocqueville explains that the consequence of relinquishing big choices is that citizens lose their capacity to wisely exercise choices about whom will govern.

It has now been almost two hundred years since De Tocqueville shared his prediction. How has it held up?

Some aspects of his analysis seem remarkably prescient: many people feel more isolated, traditional supports like family and community are weaker, and centralized government affects our lives far more than it did in his time. 

So, are we less free? Is our government a soft despotism?

These are important questions. If the answer is yes, we face a stark choice. De Tocqueville framed it at the end of the chapter—we can “create freer institutions” or “return to lying at the feet of a single master.” 

 

Mr. Duncan has worked as an adjunct professor teaching family law and has published dozens of articles in legal journals. He has filed briefs in constitutional cases in the U.S. Supreme Court, most of the U.S. Courts of Appeal, and state appellate courts. He is a graduate of the J. Reuben Clark Law School at Brigham Young University.

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Essay 100: Among Contemporary European Nations The Sovereign Power Is Increasing Although The Rulers Are Less Stable (Vol. 2 Pt. 4 Ch. 5)

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Guest Essayist: Robert Elder

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 651 – 661 (stop at chapter 6 heading) of this edition of Democracy in America.

Nearly two centuries after he wrote it De Tocqueville’s conclusion about the democratizing states of Europe in his day— “each step they take toward equality brings them closer to despotism”—still crackles with provocation. De Tocqueville claimed that he was only observing the phenomenon he described, not passing judgment, and yet his description is tinged with the same apprehension that colors the rest of the second volume. 

De Tocqueville described two seemingly contradictory trends that were transforming the nineteenth century world, or at least the United States and Europe. On the one hand, European monarchies and the aristocratic societies that supported them were being dismantled by the forces of equality and democracy rippling out from the Atlantic Revolutions at the end of the eighteenth century. The central ideal of this historical sea change, De Tocqueville argued, was equality. To achieve this end nations across the western hemisphere were busy reconfiguring their governments and societies in ways that made their citizens more alike in rights and responsibilities but which also and necessarily increased the centralized nature and power of the governments that secured this sameness. Instead of the archipelago of special rights, privileges, and administrative duties that characterized the aristocratic society of the eighteenth century, in which the local lord, the church, or the city council had authority over discrete geographies and narrow areas of life, but no one authority (even the monarch) could claim authority over all, in the new reality a centralized state took responsibility everywhere and over everything, reaching unmediated into the most mundane areas of each individual citizen’s life. “Everywhere the state comes more and more to direct the least citizens by itself,” De Tocqueville wrote, “and alone to conduct each of them in the least affairs.” Already states had taken responsibility for the education of their citizens, De Tocqueville observed, and even charity, long the province of private associations, the church, or individual largesse, was now coming to be seen as a responsibility of the state. 

While these developments undoubtedly furthered equality, they did not necessarily further individual freedom, and De Tocqueville saw in them the possibility of a creeping authoritarianism. “Most of our princes,” he wrote, “not only want to direct the people as a whole; one would say that they judge themselves responsible of the actions and the individual destinies of their subjects, that they have undertaken to guide and enlighten each of them in the different acts of his life and, if need be, to render him happy despite himself.” To accomplish this, governmental bureaucracies were growing at a frightening pace, becoming both more efficient and more intrusive. Even what De Tocqueville called “industry,” especially engineering, construction, and manufacturing, was developing a reciprocal and dependent relationship with these new democratic governments since economic development accessible to all demanded “roads, canals, ports, and other works of a semipublic nature” in addition to the materials of war on a massive new scale. “Thus it is that in each realm the sovereign becomes the greatest industrialist,” De Tocqueville wrote.

Taking all this in, De Tocqueville believed that in pursuit of equality the citizens of the democratic nations in the nineteenth century were unwittingly creating more powerful, more centralized, and potentially more despotic governments than the ones they had overthrown. The result of this process, he feared, would be that “the same men who from time to time overturn a throne and ride rough shod over kings bend more and more without resistance to the slightest will of a clerk.”

Was De Tocqueville right about the changes in his world, which is now ours? From the vantage point of nearly two hundred years, he seems both prescient and overly pessimistic, depending on where we look. 

De Tocqueville’s fear that centralization in pursuit of equality would actually decrease individual freedom has sometimes proven wrong. For instance, with the passage of the thirteenth, fourteenth, and fifteenth amendments in the years immediately following the Civil War, the United States government undertook to directly guarantee the rights and freedoms of people recently freed from slavery, bypassing the local and state governments that had traditionally granted rights in the American system. In this case, at least, it seems that centralization and a pursuit of equality unquestionably produced more individual freedom, not less.        

On the other hand, the twentieth century apotheosis of De Tocqueville’s fears can be seen in Joseph Stalin’s Soviet Union, where the ideological pursuit of perfect equality curdled into cold bureaucratic tyranny. Or in Dwight Eisenhower’s famous warning about the threat of a military-industrial complex after World War II, which echoed De Tocqueville’s observation about the growing interdependence of government and industry, especially weapons manufacturing, in the new states of his day. Over-regulation and under-regulation are evergreen issues in American and European politics, and we refer dismissively to “red tape” in some areas of life and work while we demand more government regulation in others. Considering these examples, De Tocqueville seems remarkably farsighted about the direction of the trends he described, which is why we keep reading him. 

Dr. Robert Elder is an associate professor of history at Baylor University, specializing in the American South, the Civil War era, and intellectual and religious history. He is the author of The Sacred Mirror: Evangelicalism, Honor, and Identity in the American South (UNC Press, 2016) and Calhoun: American Heretic (Basic Books, 2021). He is currently working on a book about the Nullification Crisis. 

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Essay 99: A Few Special And Accidental Reasons Why A Democratic Nation Adopts Centralization Of Government Or Turns Away From It (Vol. 2 Pt. 4 Ch. 4)

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Guest Essayist: Andrew Bibby

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 646 – 650 of this edition of Democracy in America.

 

Introduction 

American federalism is often seen as one of the great innovations of American Constitution writing. It has often been observed that the United States system of decentralized federalism is the key to understanding American freedom. But federalism is not merely an institution, or a set of procedural power sharing agreements. 

According to De Tocqueville, it is also a cultural phenomenon, a way of life. Federalism grew out of a complex interplay of factors, including history, accident, and the legislative genius of the American framers. American decentralized federalism is therefore both an object of political science (because it can be studied empirically) and political culture, because it involves the habits and mores of a democratic culture. It involves  “thinking federal,” as the federalism scholar Daniel J. Elazar would say. In Part Four of Volume Two, De Tocqueville looks at the main threats to American federalism, both as an institution and as a way of life. 

The Danger of Centralization 

De Tocqueville’s insights on the dangers to American federalism appear in Chapter 4, titled “On some particular and accidental causes that serve to bring a democratic people to centralize power or turn it away from that.” 

According to De Tocqueville, centralization is a danger to all democratic societies. But it is not equally dangerous in all ways. “If all democratic peoples are instinctively drawn toward the centralization of powers, they tend to it in an unequal manner” (II.4.4. P. 646). 

Some democratic peoples tend to “rush toward the center” from an early period in their transition to an equal social state (II.4.4). Others resist the centralizing pull longer. Why do some countries fall faster toward the temptations of a single state apparatus, while others are able to resist that temptation? To answer that question, De Tocqueville provides a summary account of five causes of centralization. 

The Causes of Centralization 

De Tocqueville lists four main “accidents” and one “primary” cause of democratic centralization. The first four causes are: 1) violent revolution; 2) a lack of aristocracy or “intermediate powers”; 3) a lack of general education (in De Tocqueville’s words, a lack of Enlightenment); 4) war. The “primary cause” is a love of equality. 

Revolution

Not all revolutions are equal. Some revolutions, De Tocqueville observes, lead to extreme centralization (a “rush towards the center”). This can happen if the people are not accustomed to political freedom and basic liberties, as was the case in the English colonies: 

“The English who came three centuries ago found a democratic society in the wilderness of the New World…had all been habituated in the mother country to take part in public affairs; they knew the jury; they had freedom of speech and of the press, individual freedom, the idea of right and the practice of resorting to it. They transported these free institutions and virile mores to America, and these sustained them against the encroachments of the state.” 

France, by contrast, experienced a rapid onset of equality – without having first gone through the trials of modern freedom. If we were to translate De Tocqueville’s argument into modern political science jargon, we would say that the English went through a process of liberalization previous to its experiment with democratization. By contrast, the French Revolution is an example of extreme democratization without liberalization. 

Voluntary Associations

Extreme centralization can occur when there is a lack of voluntary associations, an independent middle class, and a respect for certain kinds of intermediate powers (see p. 647). De Tocqueville is especially critical of class warfare, which springs from the desire to eliminate rival factions. This desire to eliminate all class differences in society is harmful because it weakens local institutions, while tending to transfer administrative rule from “all points of the circumference to the center.” The desire to eliminate inequality, in all its forms, also sets up a master-slave dynamic between friends and neighbors. The obsession with equality trains citizens to “dread and hate one another.” In modern social science language, De Tocqueville  is describing what is now called “affective polarization.” Centralization is more likely in highly polarized societies because rival factions fear and loathe the other side, and thus feel more compelled to “call in the sovereign” to take over the (messy) details of local and provincial or state government. 

Education and Ignorance

De Tocqueville also links ignorance, or a lack of education, to centralization (see p. 649). A society that values intelligence, science, and art (p. 648) is one that will have more independent thinkers. More independence of thought is necessary for the creation of “secondary powers.” These “free associations” resist centralization and are useful to a society because they are “in a position to struggle against tyranny without destroying order.” 

War

Finally, De Tocqueville mentions war. De Tocqueville does not deny that extreme centralization is useful in some circumstances. Indeed, the main advantage of highly unitary states is that they are capable of “great undertakings” (p. 649). And that is the problem. Societies that are highly centralized are able to bring “all of one’s resources rapidly” to bear on a certain point. But success in war tends to lead to more centralization. In De Tocqueville’s memorable phrase: 

“It is principally war that people feel the desire to“increase the prerogatives of the central power. All geniuses of war love centralization, which increases their strength, and all centralizing geniuses love war, which obliges nations to draw tight all powers in the hands of the state.” 

Summary

De Tocqueville’s analysis of the causes of centralization are compelling, and should receive more attention than it does. However, De Tocqueville ends with a caveat. The four causes of centralization are “accidental” and circumstantial. Today we would say, probabilistic. Over-centralization and tyranny are not certain, but only more likely, if these causes are present. No single cause will set a nation on a path-dependent trajectory to administrative despotism. 

The most important concept to understand, De Tocqueville concludes, is the love of equality.  A nation that loves equality must face the fact that the pull of centralization and authoritarianism is often stronger than the pull of decentralization and freedom. In the long run, the temptations of centralization may be impossible to resist, especially in times of war or emergency; in an era of high social polarization; when the habits of liberty are taken for granted or forgotten; and when a nation ceases to place a premium on intelligence and education.

Andrew Bibby is an Assistant Professor in the Political Science and History Department at Utah Valley University. He serves as Associate Director of the Center for Constitutional Studies at Utah Valley University and is the director of the Federalism Index Project.

He has published in various outlets, including the Wall Street Journal. Andy has taught classes in classical and modern political philosophy, American literature, and American political thought. He has research interests in modern political theory, political economy, and American federalism. He is the author of Montesquieu’s Political Economy and Rival Visions: How Jefferson and His Contemporaries Defined the Early American Republic.

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Essay 98: The Opinions Of Democratic Nations Are In Accord With Their Ideas, Leading Them To Centralize Political Power (Vol. 2 Pt. 4 Ch. 3)

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Guest Essayist: Randolph May

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 643 (start with chapter 3 heading) – 645 of this edition of Democracy in America.

Perhaps more than anything else, De Tocqueville is remembered for his observation that early Americans were inclined to participate in many voluntary associations. In one of the most oft-quoted passages from Democracy in America, De Tocqueville reported that “Americans of all ages, all conditions, and all dispositions constantly form associations.” These include “not only commercial and manufacturing companies, in which all take part, but associations of a thousand other kinds – religious, moral, serious, futile, general or restricted, enormous or diminutive.”

For De Tocqueville – at least for the traveling reportorial De Tocqueville – this proclivity to engage in all manner of voluntary associational activity created an optimistic cast for the future of democracy in America. Not only would such “habits of the heart” satisfy what De Tocqueville considered to be an innate need of individuals to lead fulfilling lives, but they ought to reduce the need for the government to play as large a role in supporting the populace as would otherwise be the case.

But De Tocqueville the political philosopher painted a distinctly different, darker picture. While acknowledging the positive mediating role of associational activity, De Tocqueville predicted, presciently, that modern democracies inevitably would tend towards a centralization of power that would threaten individual liberty. In this chapter, “That the Sentiments of Democratic Peoples Are in Accord with Their Ideas in Bringing Them to Concentrate Power,” De Tocqueville starkly proclaimed that, in the future, “Centralization will be the natural government.”

Why did De Tocqueville boldly predict that government power would become ever more centralized? The answer lies in the opening to this chapter: “If, in centuries of equality, men easily perceive the idea of a great central power, one cannot doubt, moreover, that their habits and sentiments predispose to recognize such power and lend it a hand.” Here, and in other chapters too, De Tocqueville highlighted man’s natural striving, especially in democratic societies, to achieve ever greater degrees of what he called “equality of condition.”

But he understood – and this is key – that human nature is such that some men, by virtue of their greater innate personal pride, will always seek to gain an advantage that will allow them to surpass others, to rise above the common line of equality.

And, for De Tocqueville, it is this inexorable, yet natural, tendency in democracies for men to struggle for equality of condition that inevitably will lead to centralization of government power. For only a strong government, De Tocqueville claimed, will possess the power, through imposition of what he called “a network of small, complicated, painstaking, uniform rules,” (II, 4, 6) to restrain those who seek to rise above the uniformity of the crowd. So, to enforce the uniformity that the “equality principle” encourages, the citizenry will call for ever more centralized government. And, concomitantly, the central government favors equality, for it “singularly facilitates the action of such a power, extends it, and secures it.” 

Here is how De Tocqueville, in this chapter, explains the willingness of the populace to cede power – and concomitantly a measure of individual freedom – to the government: “The sovereign, being necessarily above all citizens and uncontested, does not excite the envy of any of them, and each believes he deprives his equals of all the prerogatives he concedes to it.” And so “every central power adores uniformity,” because it “spares it the examination of an infinity of details with which it would have to occupy itself if it were necessary to make a rule for men, instead of making all men pass indiscriminately under the same rule.”

It’s not difficult to discern the relevance of De Tocqueville’s views regarding “equality” and centralization of power to the reality of contemporary America. De Tocqueville, in referring to “equality of condition,” did not explicitly distinguish, as we often do today, between “equality of opportunity” and “equality of outcome.” There are many individuals and special interest groups advocating for the latter, of course. And their success has led governments at all levels to adopt various forms of “affirmative action” programs and Diversity, Equity, and Inclusion (DEI) initiatives, many of which, in efforts to achieve “equality of outcome,” naturally depend on government compulsion for enforcement.

My purpose in this essay is not to debate the merits of any particular government program whose objective is to achieve “equality of outcome” rather than “equality of opportunity.” Rather it is to say that I think De Tocqueville, were he alive today, would not be surprised that the powerful “equality” imperative that he foresaw has been responsible, at least in part, for the increasing centralization of power in America at the expense of individual liberty.

But I suspect De Tocqueville would suggest that a counter to such centralization lies in nurturing and supporting private voluntary associations such as those he observed on his travels through America in 1831 and 1832. Elsewhere in Democracy in America (II, 2, 5), he asked, “what political power would ever be in a state to suffice for the innumerable multitude of small undertakings that Americans execute every day with the aid of an association?”

I bet De Tocqueville would answer his rhetorical question: “None!”

Randolph May is President of the Free State Foundation, a free market-oriented think tank in Rockville, MD. 

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Essay 97: The Ideas In Democratic Nations Have On Government Naturally Favor The Concentration Of Political Powers (Vol. 2 Pt. 4 Ch. 2)

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Guest Essayist: Edward Lee


Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 640 (start at chapter 2 heading) – 643 (stop at chapter 3 heading) of this edition of Democracy in America.

In 1831, twenty-six year old Alexis de Tocqueville found the United States to be a nation of 13,000,000 inhabitants, experiencing the early years of the Age of Jackson. As he surveyed the democratic character of America taking root in a land of considerable natural wealth,  the young Frenchman reached several conclusions about democratic peoples and their government. 

Coordination of power and authority should be exercised by competent, trustworthy, and confident leadership. De Tocqueville explains his belief that such efficiency will create an effective government “in which all the citizens resemble a single model and are directed by a single power” (640). The government will be lean and well-disciplined, with unity among its people. Slothful bureaucracy will be resisted in favor of responsive action. 

At the core of such a democratic model, however, is the requirement that government must wield its authority equally and fairly, impacting everyone without partiality or bias. De Tocqueville warns that “unfair rule equally imposed on all members of the social body is foreign…to the human mind in aristocratic centuries. It does not receive it or it rejects it” (641). Thus, concentrated governmental power must not be dictatorial or laced with favoritism. Rather, “its duty as well as its right is to take each citizen by the hand and lead him”(641). Trust is essential.

Democratic peoples deserve governments which display this adherence to fairness and objectivity. Patience and uniformity in the exercise of power are necessary because “governments exhaust themselves to impose the same usages and the same laws on populations that do not yet resemble each other” (641). Among democratic peoples, De Tocqueville suggests, “privileges of society” (641) overshadow individuals, who become “lost in the crowd” (641).  Common goals, society’s goals, are supreme because they strengthen everyone and promote collegiality. 

Democratic peoples adhere to and accept their governments’ mandates because there is a widespread realization that the people, ultimately, remain supreme, willfully endorsing and accepting displays of power by governments. De Tocqueville notes, “all conceive the government in the image of a lone, simple, providential, and creative power” (642). Positive results are produced by this arrangement because it yields tangible energy, efficiency, fairness, and allegiance to democracy’s tenets. Our French visitor stresses that “the government and those governing are in accord in pursuing it with the same ardor; it comes first, it seems innate” (642). A partnership, favorable to all, is established among the democratic peoples and their governments. 

This power partnership operates well because the people realize and accept that concentration of power in governmental hands strengthens society. Security, responsiveness, sensible use of resources, progress, and adherence to democracy become inter-related by such a beneficial arrangement. Our visitor concluded optimistically that this sleek governmental model “is a natural condition of the current state of men” (642). It displays long term benefits for both government and the governed. 

Dr. Edward Lee is a 40 year veteran of the university classroom. He has won several awards for his exemplary teaching, including a Presidential Citation in 1996 for his pioneer work with distance education. He is the author or co-author of 21 books, including 4 about America and the conflict in Vietnam. His commentary has appeared on Fox News, CNN, NBC News, and National Public Radio.

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Essay 96: Equality Naturally Gives Men A Liking For Free Institutions (Vol. 2 Pt. 4 Ch. 1)

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Guest Essayist: Benjamin Slomski

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 639 – 640 (stop at chapter 2 heading) of this edition of Democracy in America.

Today’s chapter begins the last part of Democracy in America. To conclude, De Tocqueville will reflect on the practical effects that the doctrine of equality produces in human government. The chapter begins with a restatement of De Tocqueville’s assessment of the promises and dangers of equality: “Equality, which renders men independent of one another, makes them contract the habit and taste of following their will alone in their particular actions.” Under equal conditions, individuals are completely independent and become suspicious of all forms of authority. This fact of independence “suggests to them the idea and love of political freedom.” The natural result of equality is that people come to cherish political freedom on an instinctual level. If a random person from democratic society is placed in a state of nature outside government, he will first think of and favor a government that he can elect and control.

De Tocqueville is not entirely sanguine about the desire for political freedom. This love of independence, out of the many political effects of equality, “most frightens timid spirits, and one cannot say that they are absolutely wrong to be so.” These timid spirits are not absolutely wrong to be frightened because independence can lead to anarchy, which has worse results in democratic countries. De Tocqueville describes the process by which independence can result in anarchy:

As citizens do not have any influence over one another, it seems that disorder will immediately go to the limit at the instant when the national power keeping them all in place happens to fail, and that, as each citizen strays off in his own direction, the social body is going to be reduced to dust all at once.

Two qualifications are needed for the possible situation De Tocqueville lays out. First, what he describes is not a fact, a guaranteed outcome that cannot be avoided, but only seems to be a potential result. Second, De Tocqueville’s claim seems only to be that citizens do not have a direct political influence over each other. This says nothing about the social influences citizens can exert over one another.

De Tocqueville is indeed less concerned about the tendency of independence to produce anarchy. He declares that “I am convinced that anarchy is not the principal evil that democratic centuries will have to fear, but the least.” There is of course something frightening if anarchy like the French Revolution is the least of the evils that democratic centuries must fear. Yet it is the least of the evils because it is the least likely to occur. There are two distinct tendencies caused by equality. The first is the previously identified one that leads people to independence and can produce anarchy. The second “conducts them by a longer, more secret, but surer path toward servitude.” This second tendency is the new, democratic version of despotism that develops out of individualism that De Tocqueville has foreshadowed throughout the work and will discuss in this final section. It is not hard for people to recognize the tendency toward anarchy, with its extreme conditions, and to defeat it. The tendency toward soft despotism, however, is less perceptible and can move people until it is too late, making it more dangerous. Citizens can be swept along by the growth of centralized administration until they have lost the will to govern themselves.

De Tocqueville concludes this chapter with a passage that could serve as an interpretive key to the whole work:

For me, far from reproaching equality for the intractability it inspires, I praise it principally for that. I admire it as I see it deposit that obscure notion and instinctive penchant for political independence at the bottom of the mind and heart of each man, thus preparing the remedy for the evil to which it gives birth. It is on this side that I cling to it.

To read De Tocqueville as a critic of democracy is to read him wrongly. He is searching for workable solutions to the new problems that will arise in a new type of regime. The love of political freedom created by equality imparts a seed in citizens that can be used to resist the soft despotism that threatens their independence. The notion for independence can become obscure over time and buried deeply, yet it remains almost like a raw instinct. This instinct to love free institutions is the best answer to the problem De Tocqueville raises. Equality is a providential fact that cannot be avoided, but produces possible dangers. In order for democracy to work, the tendency toward independence must be cultivated in a healthy manner that forever guards against the tendency toward democratic despotism. Equality gives people the gift of loving political freedom, which can be used to promote the best tendencies of democracy.

 

Benjamin Slomski is an Assistant Professor of Political Science and Campus Pre-Law Advisor at Purdue University Fort Wayne. He earned his PhD from Baylor University and his teaching and research focus on American political thought, constitutional law, and political institutions. He previously taught at Ashland University, Tarleton State University, and Baylor University.

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Essay 95: “What Marks Democratic Armies Weaker Than Other Armies At The Outset Of A Campaign And More Dangerous In Prolonged Warfare”, “Discipline Democratic Armies” & “A Few Remarks On War In Democracies” (Vol. 2 Pt. 3 Chs. 24-26)

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Guest Essayist: Paul Schwennesen

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 626 – 635 of this edition of Democracy in America.

Alexis de Tocqueville is most famous (in America anyway) for his observations on our democratic republic, and for good reason—he was especially gifted in observing the nuances of social evolution and those of the American experiment in particular. But America, per se, was not the center of his attention – rather, he was more interested in the evolution of Old-World culture as “democracy” dragged it from its traditional aristocratic past, and he looked to America as a kind of case study for aspects of what Europe might reasonably expect.

One subject upon which this evolution touched was that most venerable of European activities—Warfare. Carl von Clausewitz’s On War, published in 1832, preceded Democracy in America by only a few years and it touched on many of the same themes—in particular the changes Europe faced from the democratic revolutions springing from France, and the subsequent military imperialism of Napoleon Bonaparte.

War was (and is) a convoluted subject to be sure, and was certainly not confined to the Old World, but Alexis believed that American democracy offered a distinct vantage point with which to assess ancient military traditions. He felt that differently structured societies approached war in fundamentally different ways. In aristocracies (of which he was intimately familiar), war was the purview of the landed class with its rigid hierarchical structures. In democracies, however, he believed that war tended to be a less professional but ultimately more sustainable enterprise, since winning or losing had greater implications for a democratic society accustomed to greater equality and broader wealth distribution. One might loosely say that war in aristocratic regimes was the purview of the rich, while war in democracies was the purview of the middle class (the poor, of course, suffered equally).

He observed that democratic armies possessed less “natural obedience” compared to the slavishly docile soldiers of an aristocratic army which, though it was a “very formidable animal trained for war,” lacked essential staying power.  “Democratic peoples,” on the other hand, “must despair of ever obtaining from their soldiers the blind, minute, resigned, and always equable obedience that aristocratic peoples impose on theirs without trouble.” Aristocratic armies had an advantage in short, overwhelming campaigns while democratic armies had an advantage in long campaigns that required a strong economic base. Democratic armies, he wrote, tended to be filled with “intelligent troops, who know what they are fighting for” and their troops, he noted, will “stiffen with resolve when they understand the threat.”

Nearly a century after he drafted these observations, one could see elements of this at play in the First World War which pitted the aristocrat-heavy ranks of the German Wermacht against the famously unruly Americans. “The prevailing opinion in Germany before our entry into war,” wrote Karl Finkl von Bolingen, “was that America was a money hunting nation, too engrossed in the hunt of the dollar to produce a strong military force. But since our troops have been in action, the opinion has changed…[we] would be victors in a war with any nation in the world with the exemption of the United States.” Walter von Minderlittgen wrote that, “the attitude of the American officer toward enlisted men, is very different than in our army in which officers have always treated their men as cattle.”

The phenomenon can even be observed in the Ukraine conflict today. Ukrainian society has evolved in a considerably more democratic direction than its autocratic Russian cousin, which, while technically not aristocratic, retains many of its heavily hierarchical elements. In the Russian army, soldiers are considered expendable and sent to the front lines in semi-suicidal “meat waves” –treated by their commanders every bit like the “cattle” of an aristocratic regime. The Ukrainian army, meanwhile, while trying to shed the last vestiges of Soviet-style tactics, is markedly more egalitarian and less reliant on “blind, minute, resigned” obedience. 

De Tocqueville was on to something: the structure of a society enormously influences the structure of its military, with important implications on a nation’s ability to sustain defensive and offensive operations. Some of his observations, applied in the American context today, might rightly cause us pause: he says, for instance, that “in democratic nations, in times of peace, a military career is little honored and ill pursued.” This is clearly no longer the case, where today the military is one of the most highly regarded national institutions. Does this mean that De Tocqueville’s observations on democratic armies were flawed in some way? Or does it mean, more provocatively, that America has strayed from its earlier democratic forms? There is good reason to think the latter, and De Tocqueville himself points out just how such a thing comes to pass: 

There is no long war that does not put freedom at great risk in a democratic country… War does not always give democratic peoples over to military government; but it cannot fail to increase immensely the prerogatives of civil government in these peoples; it almost inevitably centralizes the direction of all men and the employment of all things in its hands. If it does not lead one to despotism suddenly by violence, it leads to it mildly through habits. All those who seek to destroy freedom within a democratic nation ought to know that the surest and shortest means of succeeding at this is war.

And yes, America has had its share of long wars, and it seems appropriate to wonder aloud whether the military success enjoyed by our “democratic armies” since World War II has not, in some deep and lasting way, altered the trajectory of the republic itself.

Dr. Paul Schwennesen is an environmental historian and military affairs analyst. His major research interests are in the geopolitics of liberty and the environmental and transatlantic history of the 16th century, with special focus on the entradas of De Soto and Coronado into North America, 1539-1542. He holds a PhD from the University of Kansas, a Master’s degree in Government from Harvard University, and degrees in History and Science from the United States Air Force Academy. Paul served ten years in the US military in weapons-systems acquisition, foreign area intelligence, and flightline operations which included deployments to Central America and Afghanistan. In 2022 he volunteered in Ukraine to provide civilian aid and combat training on the frontlines against the Russian invasion. He was presented with the Verhkhovna Rada medal by the Ukrainian Parliament for “Merit to the Ukrainian People.” He is a regular contributor to the American Institute for Economic Research, and his writing has appeared at the New York Times, American Spectator, Claremont Review, and in textbooks on environmental ethics (Oxford University Press and McGraw-Hill).

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Essay 94: “Why Democratic Nations Have A Natural Desire For Peace And Why Democratic Armies Naturally Seek War” & “Which Is The Most Warlike And Revolutionary Class In Democratic Armies” (Vol. 2 Pt. 3 Chs. 22-23)

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Guest Essayist: James Robbins

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 617 (start at chapter 22 heading) – 625 of this edition of Democracy in America.

In Chapters 22 and 23 of Part 2 of Democracy in America, Alexis de Tocqueville addressed the proper role of military affairs in a democracy. In his time as today, the limits of military power in politics are an important concern. De Tocqueville was born during the rule of Napoleon Bonaparte, a General who had overthrown the French First Republic and made himself Emperor. When De Tocqueville was still a child, he saw Napoleon’s downfall and the restoration of a constitutional monarchy in France. His experience helped shape his views on how a democracy can be undermined by the ambitions of men in uniform.

In Chapter 22, De Tocqueville noted that democracies are generally interested in living at peace with their neighbors. He wrote that “amongst civilized nations, the warlike passions will become more rare and less intense in proportion as social conditions shall be more equal.” Ideas such as this would later evolve into concepts like the democratic peace theory, i.e., since democracies seldom go to war with each other, a more democratic world will necessarily be more stable and peaceful.
However, since “war is nevertheless an occurrence to which all nations are subject,” even peaceful democratic nations “must hold themselves in readiness to repel aggression” with some form of standing military force. This force can pose problems for democratic governments.

De Tocqueville writes that in some cases ambition among officers may create a desire to go to war to seek promotion through acts of valor. And while such wars may have advantages, they can also be dangerous. Wars can endanger freedom in democracies by increasing the power of government, and protracted wars in particular are a threat to maintaining liberty. “There are two things which a democratic people will always find very difficult,” De Tocqueville writes, “to begin a war, and to end it.”

In Chapter 23, De Tocqueville notes that these tendencies can be compounded by the character of democratic armies, which are fundamentally different from those in aristocracies. In aristocratic societies, with their firm class divisions, officers are typically drawn from the nobility, who have important interests in maintaining the status quo. In democracies, officers often come from the middle or lower classes, who may have more ambition to improve their station in life. This ambition makes them more likely to support revolutionary changes that could improve their opportunities and status. As noted above, this may mean support for war as a vehicle for achieving fame, honor, and promotion, things which can be elusive in peacetime.

The remedy for these challenges, De Tocqueville says, “is not to be found in the army itself, but in the country.” That is, the citizen-soldiers who make up the largest part of the military are also those who are most habituated to freedom, and who want to maintain it. “Upon them the habits of the nation have the firmest hold,” De Tocqueville writes. Through them “it may be possible to infuse into a democratic army the love of freedom and the respect of rights” which reflect the country as a whole.
The United States of the 1830s was less threatened than some European states by these power dynamics. De Tocqueville notes that America had the benefit of being removed from European affairs, bounded by vast oceans and having (with some exceptions) generally peaceful relations with its neighbors. This meant that the United States did not require a vast standing army to secure its borders. Only a small regular force was needed, and in time of emergency the county could quickly mobilize the type of citizen militias that were most sympathetic to maintaining freedom.

Like De Tocqueville, the Founding Fathers were also concerned about the potential threat from a large standing military. In the Constitution they provided a variety of checks and balances on military power to keep control firmly in civilian hands. This included making the President the Commander in Chief of the armed forces, giving Congress control over military appropriations, and also reserving to Congress the power to declare war.
There was also the example of George Washington, who represented the ideal of the American citizen-soldier. He had left his farm at Mt. Vernon to take command of the Continental Army during the American Revolution, after which he returned to civilian life, and later to the presidency. Washington set an example of service and conduct for an American officer, who was expected to be professional, capable, and apolitical. This ethos became a guiding spirit in the American military that has persisted to the current day.

De Tocqueville’s analysis of civil-military relations in a democracy continues to offer valuable perspectives on the interplay between politics, military service, and social mobility. While the United States has been able to maintain its democratic character even with the vast growth of its military and responsibilities for global leadership, the corrosive power dynamics that De Tocqueville wrote about remain a challenge to free countries. Constant vigilance is required to ensure that the forces needed to defend freedom do not become the means to undermine and destroy it.

 

Dr. Robbins is a former special assistant in the Office of the Secretary of Defense, and in 2007 was awarded the Chairman of the Joint Chiefs of Staff Joint Meritorious Civilian Service Award.

He is also the former award-winning Senior Editorial Writer for Foreign Affairs at The Washington Times. His work has also appeared in The Wall Street Journal, National Review, and other publications. He appears regularly on national and international television and radio.

Dr. Robbins holds a Ph.D. from the Fletcher School of Law and Diplomacy and has taught at the National Defense University and Marine Corps University, among other schools. His research interests include terrorism and national security strategy, political theory and military history.

Dr. Robbins is the author of five books, including The Real Custer: From Boy General to Tragic Hero, This Time We Win: Revisiting the Tet Offensive, and the critically acclaimed Last in Their Class: Custer, Pickett and the Goats of West Point.

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Essay 93: Why Great Revolutions Will Happen Less Often (Vol. 2 Pt. 3 Ch. 21)

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Guest Essayist: Gary Wolfram

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 606 (start at chapteer 21 heading) – 617 (stop at chapter 22 heading) of this edition of Democracy in America.

As Rosenberg and Birdzell discuss in their book, How the West Grew Rich, over the course of centuries the economic structure of Western Europe gradually moved from a feudal system to what is essentially market capitalism. De Tocqueville’s observation of how economic and political systems are related leads him to the observation that a society that has made the transition to a market-based economy, where individuals are able to escape poverty and become wealthy, will be politically stable and that in the America of his time, which had made this transition, democracy will surely not be overthrown through a violent revolution.

De Tocqueville notes that “almost every revolution that has changed the shape of nations has been made to consolidate or destroy inequality.” When talking about inequality he is referring to a political and economic system where the impoverished masses do not have a mechanism to improve their economic condition without a revolution to overthrow the aristocracy.

It is interesting that the Civil War was in a sense a revolution that attempted to “consolidate inequality” of the black population. De Tocqueville notes that if there is a revolution in America it will be due to the inequality of blacks.

The American economy of De Tocqueville’s time had evolved into a market capitalist system. Because such a system is based on voluntary exchange, you cannot force anyone to buy your product or service. When any exchange happens both parties must be better off. It also requires property rights.  I need to know that when we make an exchange, the property we are exchanging belongs to the person we are making the trade with. Property rights also establish a sphere of free action for the individual where government cannot interfere. An example is the 4th amendment of the American constitution which prohibits unlawful search and seizure. 

A market system requires a government that can enforce property rights. However, the government will be limited to the protection of property rights.  The condition of the rule of law is that there must be certainty regarding what government can do and there must be a sense of justice with the law.

De Tocqueville makes the point that violent revolutions become rare when the people are able to obtain property, and that trade (or voluntary exchange) “is the natural enemy of all violent passions.” The more property is widely held and distributed the less likely there is to be a revolution, since a revolution is likely to threaten the average person’s property holdings. 

Ludwig von Mises in his 1927 book, Liberalism in the Classical Tradition, explained that capitalism is the only economic system that can produce wealth for the masses. This system that allows people to escape poverty is what De Tocqueville observed in the America of the mid-19th century.

The Fraser Foundation has an annual Index of Economic Freedom where countries are ranked according to how supportive they are of economic freedom. In the countries that are in the top 25% of the rankings, the income of people in the bottom 10% of the income distribution is eight times greater than those in the bottom 10% of the income distribution in countries in the bottom 25% of the index. Following Tocqueville’s logic, we would not expect revolutions to occur in countries such as Canada, the U.S. or Switzerland, whereas we might expect them in places like Sudan or Libya.

There is a good deal of mobility of wealth in market capitalism. An American Enterprise Institute paper found that 73% of Americans are in the top 20% of the income distribution for at least a year. Thus, if you are at the bottom of the income distribution, you will still be opposed to a violent revolution. As De Tocqueville put it in discussing that the effect of trade on individuals: “it leads them to want to manage their own affairs and teaches them how to succeed therein. Hence it makes them inclined to liberty but disinclined to revolution.” 

Democracy is a relatively inexpensive way to change governments. No government can survive if it does not have the support of the people. Democracy provides a way to change governments that does not require the enormous costs of revolution. The connection between a market economy, democracy, and a peaceful society that De Tocqueville observed still holds today.

Dr. Gary Wolfram serves as the William E. Simon Professor of Economics and Public Policy at Hillsdale College and President of Hillsdale Policy Group, a consulting firm specializing in taxation and policy analysis. He received his Ph.D. from the University of California at Berkeley in 1976. His writings have appeared in numerous publications, including National Review, Real Clear Markets, Investor’s Business Daily, and American Thinker. Dr. Wolfram has been named Hillsdale College Professor of the Year and received the Emily Daugherty award for teaching excellence.

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Essay 92: The Trade Of Seeking Official Positions In Certain Democratic Nations (Vol. 2 Pt. 3 Ch. 20)

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Guest Essayist: James Pinkerton

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 604 (start at chapter 20 heading) – 606 (stop at chapter 21 heading) of this edition of Democracy in America.

If the government is small, ambitious people, seeking economic opportunity, will tend to go where the action is: to the private sector. They will, in a phrase, follow the money. However, if the government is big, ambitious people are more likely to seek out careers in the public sector.

This point is made in the second volume of Alexis de Tocqueville’s classic work, Democracy in America. As with so many of De Tocqueville’s insights, it’s common sense, informed by first-hand observation—he spent nearly a year traveling through the U.S. in 1831-32—and armored further in erudition. As he wrote, “In the United States as soon as a man has acquired some education and pecuniary resources, he either endeavors to get rich by commerce or industry, or he buys land in the bush and turns pioneer.” The author notes a distinctly American characteristic: “All that he asks of the State is not to be disturbed in his toil, and to be secure of his earnings.” In other words, Don’t tread on me.

However, Europe was different. As De Tocqueville wrote of the ambitious European, “The first thing that occurs to him is to get some public employment.” In Europe, public employment didn’t just mean an income, it also meant power and privilege, the ability to lord it over others while perhaps wheedling a special favor out of some crowned head.

De Tocqueville, himself a classical liberal, clearly preferred the American approach of small government, too poor to do favors for the connected. He contrasted “public employments [that] are few in number, ill-paid and precarious,” to “different lines of business [that] are numerous and lucrative.” That, the Frenchman said, was a key difference between small-government America and big-government Europe.

To De Tocqueville, the freedom to get into business for oneself was the key to equality as he defined it. That is, equality of opportunity, as opposed to equality of result (sometimes today called “equity”).

Back in the 1830s, American government was small. The federal government’s share of economic output, what we now call GDP, was perhaps three percent. And the state’s regulatory footprint was small as well, to the point of non-existent. In most places, if you wanted to start farming, well, you just started farming. No permit needed.

By contrast, European governments were much larger, not just as a share of the economy, but as a share of the national mindset. Europe was, after all, the land of feudalism and centralized empire; by contrast, the U.S. was about republicanism and expansion on the western frontier—it was always even freer over the next hill.

De Tocqueville was ever loyal to France, and yet he wrote Democracy in America with an eye toward encouraging a new spirit of liberty in his homeland.

Meanwhile, today, the U.S. has a much larger government; the federal government’s share of the economy is more than seven times what it was in De Tocqueville’s era, around 23 percent of GDP (and state and local governments are much larger, too). Moreover, what’s called the “administrative state” has grown huge, too, in its ability to affect the economy, the workplace, the schools—even school bathrooms.

Has life for Americans improved amidst this government expansion? Is our Constitution stronger? These are matters for debate. But it does appear that America has become more like Europe. So now, plenty of Americans are able to make good careers for themselves as “activists” and “public-sector entrepreneurs.” That’s what Big Government buys you. (And of course, we must pause to distinguish the ambitious from those motivated by a spirit of public service; De Tocqueville wrote elsewhere about good patriots, and we all know plenty of good civic hearts today.)

To be sure, many Americans still flock to the private sector, even knowing that they must brave ever-increasing tax and regulatory burdens. Happily, our free economy is so strong that the rewards of private-sector entrepreneurship can be fantastic.

So we’re in a different place than we were in De Tocqueville’s time: We have a big public sector and a big private sector. What does this mean for today? What does it portend for the future? For answers, we might benefit from the visit of another sage foreigner to help give us insight and perspective.

Or, of course, we can look to our own traditions and history—starting with the U.S. Constitution.

James P. Pinkerton served as a domestic policy aide in the White Houses of Presidents Ronald Reagan and George H. W. Bush. He also worked in the 1980, 1984, 1988, 1992, and 2008 presidential campaigns. From 1996 to 2016, he was a contributor to the Fox News Channel.

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Essay 91: Why So Many Ambitious Men Exist In The United States But So Few Lofty Ambitions (Vol. 2 Pt. 3 Ch. 19)

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Guest Essayist: Eric Sands

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 599 (start at chapter 19 heading). – 604 (stop at chapter 20 heading) of this edition of Democracy in America.

In this section of Democracy in America, De Tocqueville elevates his analysis from just focusing on America to discussing democracy in the abstract. He begins by observing that most everyone in America aspires to be nothing more than middle class. “There are no Americans who do not show that they are devoured by the desire to rise, but one sees almost none of them who appears to nourish vast hopes or aim very high. All want constantly to acquire goods, reputation, power; few envision all these things on a grand scale.” In other words, Americans are highly ambitious people, but they do not have great ambitions. They work tirelessly to achieve little more than a comfortable self-preservation.

What causes this? De Tocqueville points out that democratic revolutions create great ambitions because during them nothing seems impossible. Ambitions will show themselves to be great so long as the revolution continues. The passions of revolutions will extend for several generations and keep ambitions elevated. But, as Lincoln pointed out in his famous Lyceum Address, the passions of revolutions fade with time. What replaces these passions is normalcy, which in democracy means ambition that is “ardent and continuous but cannot habitually aim very high…and life is ordinarily passed in eagerly coveting petty objects that one sees within one’s reach.” In short, what turns democrats away from great ambitions is the sheer amount of time and effort they put into improving their station in life. They “compel the soul to employ all its strength in doing mediocre things.” But the problem, as De Tocqueville points out, is that “one does not gradually enlarge one’s soul like one’s house.” In democracy, “ambition is therefore ardent and continuous, but it cannot habitually aim very high; and life is ordinarily passed in eagerly coveting petty objects that one sees within one’s reach.”

The other thing that keeps democrats from aspiring to greatness is the amount of time required just to “make” it in life, never mind being great. Few people in democracy come to greatness quickly since the rules make advancement slow and tedious. As men become “more alike and the principle of equality penetrates more peacefully and more deeply into institutions and mores, the rules of advancement become more inflexible and advancement slower; the difficulty of quickly reaching a certain degree of greatness increases.” People, therefore, do not aspire to great things in the future, instead living for the moment or immediate profit (bottom of pg. In the end, democrats give up aspiring to greatness at all, lacking the pride and self-confidence required to accomplish great things. Thus, for De Tocqueville, pride in the pursuit of greatness is no vice, and humility focused on the pursuit of material gain is no virtue. Democracy does not directly suppress greatness, but it places a myriad of hurdles and obstacles in a person’s way that discourage great ambition and great ideas. The laws do not stifle ambition; the people subdue it.

De Tocqueville’s greatest fear is that democracy will choke out ambition, at least great ambition, and leave behind the rule of mediocrity. De Tocqueville says, “I avow that for democratic societies I dread the audacity much less than the mediocrity of desires; what seems to me most to be feared is that in the midst of the small incessant occupations of private life, ambition will lose its spark and its greatness.” All political societies require the presence of great men and women to lead and help regimes progress. In democracy, these great people must come from the people. But how will they distinguish themselves? Given that they are likely engaged in their own self-preservation, what is to orient them towards politics?

Yet beyond this De Tocqueville identifies an even greater danger with this lack of greatness. What greatness requires to distinguish itself is pride because pride is the spur to the actions required for liberty. Moralists, De Tocqueville says, are constantly condemning pride as one of the greatest of human vices. This, De Tocqueville remarks, misses the mark on what constitutes dangers to democracy. Without pride, human beings see themselves as only worthy of enjoying “vulgar pleasures.” It is not that such a person lacks the ambition to pursue lofty undertakings, but that people cannot even envision what such undertakings are. Therefore, modernity needs to recognize that a certain measure of pride is important for the maintenance of human liberty.

Eric Sands is Associate Professor of Political Science at Berry College in Rome, GA. He teaches a wide range of courses in American government and political theory. Dr. Sands is also a professor in Ashland University’s MAHG program.

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Essay 90: Honor In The United States And In Democratic Societies (Vol. 2 Pt. 3 Ch. 18)

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Guest Essayist: Edward Lee

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 589 – 599 (stop at chapter 19 heading) of this edition of Democracy in America.

During his nine month tour of America, De Tocqueville analyzed the virtue of honor and how it strengthens a democratic society. He observed, “honor…rules the will more than belief….” It towers over the mortal human, infusing the spirit with energy and purpose. He reminds us that all people are united by their quest for honor: “The human race feels permanent and general needs that have given birth to moral laws; all men have naturally attached in all places and all times the ideas of blame and of shame to the nonobservance of them.” The pursuit for honor evolves, but it remains a potent force which beckons constantly to all people as they strive “to do good.”

Focusing his attention on honor in the antebellum South during his 1831 visit, De Tocqueville attempts to dissect honor in the relationship between slave owners and enslaved people. Tensions and pressures are spewing worth as ethnic groups interact. He tells us, “to debauch a girl of color hardly harms the reputation of an American; to marry her dishonors him.” Omitted, unfortunately, is concern for the debauched female’s predicament but clearly defined is the preservation of the southern elite’s position of personal honor. His honor must always be maintained.

Our visitor ventures into questions of “feudal honor” during the Middle Ages. Since “national power” did not exist in the Middle Ages, power and honor were intertwined. The lord, with his military strength, was the source of power and authority, possessing the unquestioned allegiance of his people. The lord was supreme, demanding “fidelity to the political chief.” To disobey or question the lord’s dictates was dishonorable. Such gestures of independence were not tolerated. Unity of purpose is required.

De Tocqueville detects remnants of this European honor code in America. He comments, “One still encounters, scattered among the opinions of all Americans, some notions taken from the old aristocratic honor of Europe.” He labels this characteristic: “American honor.” He sees its foundation rooted in commerce, industry, trade, and economic activity. It “distinguishes the American people from all others.” He explains this vitality by writing, “passion for wealth… is honored” in America because it illustrates the importance of entrepreneurship.

During his time in America, De Tocqueville asserts that the United States is “full of inexhaustible resources.” If a person falls victim to bankruptcy or unwise economic ventures, failure is only momentary because the quest for honor and success can be regained. This quest regroups and resumes even if it temporarily stumbles. The key ingredient, in De Tocqueville’s view, is that “everyone works and work leads to everything.” He notes that in America potential success is aided through mobility: “[t]hat has turned around the point of honor and directed it against idleness.” People should not hesitate as they surge forward.

De Tocqueville concludes his analysis by commenting that in aristocracies honor is stagnant because social ranks are stagnant and do not allow movement. In America, “ranks are mixed, privileges are abolished.” This quality energizes honor, making it fluid, and fuels numerous opportunities for unlimited success in the United States.

Dr. Edward Lee is a 40 year veteran of the university classroom. He has won several awards for his exemplary teaching, including a Presidential Citation in 1996 for his pioneer work with distance education. He is the author or co-author of 21 books, including 4 about America and the conflict in Vietnam. His commentary has appeared on Fox News, CNN, NBC News, and National Public Radio.

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Essay 89: How American Society Appears Both Agitated And Monotonous (Vol. 2 Pt. 3 Ch. 17)

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Guest Essayist: Kirk Higgins


Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 587 (start at chapter 17 heading) – 588 of this edition of Democracy in America.

In his masterpiece, Democracy in America, Alexis de Tocqueville interrogates the currents that shape American democratic society. One feature he investigates concerns how American society can simultaneously appear monotonous and agitated.

De Tocqueville describes the agitation as a constantly changing landscape of shifting laws, fortunes, and ideas. It is a society constantly in motion and seemingly unsettled, driven by a restless pursuit of something else, something more. This shifting is so constant that, in the long term, it becomes rather predictable and, in De Tocqueville’s words, boring.

It is freedom that leads to this predictable restlessness. And the shared engagement in this restlessness makes men alike in their habits, values, and actions. 

This differs from an aristocratic society. Nothing changes in an aristocratic society grounded as it is on accidents of birth, not of individual choice. Life is dictated by tradition, inheritance, and family rather than opportunity or choice. However, all men in it are different, pursuing individual passions, interests, and ideas that have no material impact on society.

The agitation and similarity of democratic people emerge from their pursuit of wealth. Individuals must constantly pursue material gain because, De Tocqueville argues, monied transactions are the only way to obtain cooperation in a free society. This, along with the diminishing value of birth or profession, means the pursuit of wealth is the most significant distinguishing characteristic amongst a democratic people. This pursuit causes the restless motion of American society.

At the same time, this drive to accumulate wealth to advance and achieve status means people act in particular ways to succeed. These actions drive change but also paint the monotonous picture of American society that De Tocqueville describes. The pursuit of wealth drives men toward industry. Success in the industry is found through regular habits and long, uniform actions, which men see in others and seek to emulate.

Over time, this pursuit creates a constantly changing society while simultaneously creating a monochromatic populace—in other words, a simultaneously agitated and monotonous society.

The moral philosopher Adam Smith also examined the motivations behind people’s actions. Smith was keenly interested in what drives individual actions and shapes interactions between people. His two most famous works, The Theory of Moral Sentiments (TMS) (1759) and An Inquiry into the Nature and Causes of the Wealth of Nations (WoN) (1776), focus on these actions.

One of Smith’s most famous lines from WoN states, “it is not from the benevolence of the butcher, the brewer, or the baker, that we expect our dinner, but from their regard to their own interest. We address ourselves, not to their humanity but to their self-love, and never talk to them of our own necessities but of their advantages.”

This is commonly read as a self-interested argument: that individuals’ actions are only motivated by selfish interests and greed. However, if read in the context of the Theory of Moral Sentiments, this statement can be read in the framework of sympathy. In other words, to get what we want, we naturally anticipate the needs, feelings, wants, and desires of others. So, individualism is closely tied to community.

This idea is reflected in the opening line of TMS, “How selfish soever man may be supposed, there are evidently some principles in his nature, which interest him in the fortune of others, and render their happiness necessary to him, though he derives nothing from it except the pleasure of seeing it.”

This interest in others drives our actions and shapes our worldview. It helps us identify what we see as good and noble actions and shapes our opinion of what we see as detrimental, harmful, or evil actions. We then try to emulate those things that are good while avoiding and shunning those things and people we think are bad.

If we use this understanding to examine De Tocqueville’s claims about American society, we see something interesting. De Tocqueville’s interpretation can appear to be an argument, claiming that Americans have a myopic pursuit of wealth, which creates a boring and, at worst, greedy monoculture that promotes personal gain over community benefits.

Viewed another way, De Tocqueville’s observation is a harmonizing one. The opportunity to participate in a shared pursuit of wealth, or material gain, is leveling. This shared pursuit bonds people by encouraging shared values and producing shared beliefs. These mores bond society together, creating the stability of monotony while maintaining its agitated character.

In De Tocqueville’s own words the people are, “like travelers dispersed in a great forest in which all paths end at the same point.” In this way they are, “insensibly brought nearer to one another.” He further argues that, “All peoples who take for the object of their studies and imitation, not such and such a man, but man himself, will in the end encounter each other in the same mores, like these travelers.”

 

Kirk Higgins serves as the Senior Director of content at the Bill of Rights Institute. There, he has led several major curricula and content projects, including the Institute’s comprehensive U.S. history resource, Life, Liberty, and the Pursuit of Happiness. In addition to BRI’s curriculum development, Kirk manages the Institute’s video content and scholar network.

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Essay 88: Why The National Vanity Of The Americans Is More Restless And Quarrelsome Than That Of English (Vol. 2 Pt. 3 Ch. 16)

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Guest Essayist: Heather Yates

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 585 – 587 (stop at chapter 17 heading) of this edition of Democracy in America.

Alexis De Tocqueville’s mission to North America was to study the new case of American democracy.  De Tocqueville analyzed the living standards and conditions of individuals with particular attention to their relationship to the new political state.  In volume 2, part 3, chapter 16, De Tocqueville examined how an individual sense of pride, fashioned by the absence of a heredity-based aristocracy, formulated a new collective identity. Fundamentally, De Tocqueville observed that the Americans’ intense love for country is restless because it has a tendency to be forward, public, out loud, and indefatigable, which some international observers and allies find to be exhausting. While De Tocqueville’s observations might be interpreted as a criticism toward American hubris, he also explains why it reflects the exceptional nature of the American experience. 

De Tocqueville’s analysis of a new American, yet restless, national identity contributes to the notion of American Exceptionalism. The idea asserts that the American experience is an exceptional one and that the American institutions and practices are distinctive, and in this case, are distinctive from England. What is purportedly unique about the American experience can be traced to its political and ideological origins. Very few nations have simultaneously invented themselves both politically (physical territory, borders, and institutions) and conceptually in the manner that the United States did. Furthermore, the exceptional American experience is also attached to notions of “newness” meaning the novel aspects of the lived experiences in the new America. 

When deconstructing the layers of American national identity as an exceptional experience, De Tocqueville identifies a significant reason for distinctions between the Americans and their ancestral England.  De Tocqueville identifies how the absence of an American aristocracy empowers a unique, individualistic national pride. De Tocqueville writes that people who live in democracies “love their country in the same manner that they love themselves”.  According to De Tocqueville, the significance of democracies is that they cultivate fluid conditions (unlike the conditions of heredity in England) by which ambitious and motivated people are enabled to achieve and acquire their own “advantages.”  Here, such advantages can be considered any object (or institution) which offers protection of freedoms and the private ownership of property. An exceptional experience for Americans is that they are empowered to earn their own advantages, property, and achievements through their own labor instead of through heredity.  De Tocqueville details that Americans are equally conscious of the fragile status of their achieved advantages, which makes the new American more restless about losing their achievements. Americans are keenly aware of their fluid stations and that they can lose their lives, liberty, freedoms, and properties just as quickly as they secured them. As De Tocqueville writes, “and as it can happen at any instance that these advantages may escape them, they are in constant alarm and strive to make one see that they still have them.” While the absence of heredity makes for remarkable opportunities in the new American society, it also contributes to the individualistic and boastful nature of its national vanity. De Tocqueville is familiar England’s aristocracy as France’s elites also functioned within an established system inherited privilege and protection as well and where national identity is not as boastful because, to De Tocqueville, heredity is a mechanism that perpetuates the stability of goods and privileges for the aristocracy. Without the replication of such a system in America, individuals felt mostly free to earn and boast of their statuses.  

De Tocqueville’s observations of Americans are that they are individually eager and ambitious while soliciting praises from outside observers about their American experience. De Tocqueville emphasizes that while seeking praise, Americans are also seeking validation for their political experiment.  When compared to their English counterparts, De Tocqueville observes that English pride tends to be a solitary enjoyment of advantages (perceived or real), they do not solicit praise nor are they motivated to critique other nations. Unlike Americans, the English possess a reserved, stoic disposition. However, there is an embedded critique, since de Docqueville accounts for the role that economic class and a sense of social superiority has played in the development of English national identity.  De Tocqueville reminds his readers that when England’s aristocracy conducts public affairs—all other classes imitate it.  In England, the aristocracy assume they are significant and entitled to visibility, which perpetuates their advantage. Whereas, in America, when the least advantaged gain importance, while pride may become demanding and indefatigable, it is not invalid. De Tocqueville has also observed elsewhere that the advantages and privileges earned by Americans are revered as being earned through individual and collective sacrifice that’s given rise to America’s notable and exemplary civic culture.   

Dr. Heather E. Yates is a professor of American politics at the University of Central Arkansas. She has published books and articles on regional and national politics with emphasis on the American presidency, political campaigns, and voting behavior. Her political analysis has been featured in national and regional print and broadcast media. She also speaks to community forums and events about the significance of electoral politics and civic engagement.

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Essay 87: The Serious Attitude Of Americans And Why It Often Does Not Prevent Them From Ill Considered Actions (Vol. 2 Pt. 3 Ch. 15)

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Guest Essayist: Erin Brooks-Hindman

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 582 – 584 of this edition of Democracy in America.

This section of De Tocqueville’s Democracy in America highlights a unique paradox in how democratic peoples, generally, and Americans in particular, approach their daily economic and political lives. De Tocqueville makes two critical observations about our very American frenetic energy. First, he observes that Americans spend their days in business and politics more fervently than in an aristocratic or monarchial society. However, he secondarily notes that this fervency leads to quick and constant changes that may render us more foolish in our judgments than in these other political systems. 

In the first sense, De Tocqueville argues that Americans are always busy but attentive, moving constantly from one serious task to another. Accordingly, our American approach to government and economics prioritizes productivity over frivolity and wasted time. Even today, many of our leisure activities mix satisfaction of our goals with enjoyment. In short, we combine our “side hustles” with our hobbies. De Tocqueville notes this saying: “[M]en who live in democratic countries do not prize the sorts of naïve, unruly, and coarse entertainments that the people give themselves over to in aristocracies […]; they must have something more productive and substantial in their pleasures, they want to mix satisfaction with their joy.” Democratic institutions inspire citizens to believe their involvement can improve their lives and country. Since citizen activity can impact policy and one’s financial well-being, Americans consider all their activities in this light. They choose how they spend their time and seek to maximize its productivity rather than waste it. De Tocqueville notes that they “want to mix satisfaction with their joy” because they know production comes with both good effects and pleasure. He argues here that people who live under democratic systems want to see productive, positive results from how they spend their time.

As a direct result of this first observation, De Tocqueville secondarily shows that Americans can stumble into foolish choices. On first pass, this makes little sense. How can a population that takes everything seriously so frequently go down an unwise path? For De Tocqueville, though, this is not a true paradox. He argues that both the serious and the foolish originate from the same place – our frenetic energy. Americans are constantly being pulled from one task to the next. Democracies devolve the power of governing to the whole population. Thus, everyone must be more serious. De Tocqueville observes that “one encounters an infinite number of people in all classes who are constantly preoccupied with the serious affairs of government, and those who do not think of directing the public fortune are left wholly to the cares of increasing their private fortunes. In such a people gravity […] becomes a national habit.” Politics is always serious, but in aristocracies, only one part of society must focus on that work. In America, freedom and equality among fellow citizens mean that everyone is incentivized to stay engaged in one productive activity after another. We engage in such a wide range of activities that we avoid specialization and frequently improvise solutions to problems as we go. The constant activity from one improvisation to the next causes the country to get caught up in mistakes and miscalculations as we move too fast.  

In democracies, people confront so many “grave and serious activities” competing for attention that they cannot pay sufficient attention to any one task to develop a deeper understanding of it. In short, De Tocqueville observes that Americans become generalist-improvisers: a “jack of all trades, master of none.” Thus, the combination of having only a cursory knowledge of a variety of topics but the ability to be involved in meaningful and substantive activities has the potential to lead to mistakes in both business and policy. He points out that “in democracies men are never settled; a thousand accidents make them change place constantly, and there almost always reigns something unforeseen and so to speak improvised in their lives. Thus, they are often forced to do what they have learned badly, to speak of what they scarcely understand.” Thus, various competing demands prevent Americans from developing a depth of knowledge that would lead to consistently wise decisions.  Instead, frequently forced to act as generalists with little expertise, they inevitably stumble.  

Ultimately, though, De Tocqueville holds that American flexibility in the face of all the activities that compete for their attention becomes an asset. Accordingly, the people will recover well from isolated instances of folly. De Tocqueville points out elsewhere that the same individual can take risks, fail, and then move into something new multiple times within a lifetime and society will not think less of him for his errors. The principle applies to the whole population as well. Constant activity will likely help the country move beyond any single miscalculation. Frenetic optimism remains.

 

Erin Brooks-Hindman earned her B.A. in Politics from Hillsdale College in 2008 and continued her graduate education at Regent University and Claremont Graduate University, where she earned her Ph.D. in 2022. Specializing in Western and American Political Thought, her recent research is on civilian-military relations and the need for character-based officer education. While at Holy Cross, she has taught various courses, including introductory courses in both political philosophy and American government, as well as upper division courses on the American national security infrastructure and American Political Thought.

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Essay 86: Some Reflections On American Manners (Vol. 2 Pt. 3 Ch. 14)

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Guest Essayist: Troy Kickler

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 578 (start at chapter 14 heading) – 581 of this edition of Democracy in America.

Alexis de Tocqueville was a French aristocrat and historian who endeavored to understand more concerning the United States of America’s distinct culture. The Frenchman wrote Democracy in America, rather it was published, in 1835. Remaining true to his noble identity, he traveled to America and traveled its landscape and observed its sub-cultures. To him, the experience was intellectually inspiring yet challenging.

His beginning question, more or less, was the following: Are people born refined or taught to be so? It was a conundrum for him. Some people are born so wealthy that they don’t care for others with less economic means. Those not at the “foremost” of society yet have means of wealth continually strive to move up the social ladder. Therefore, their public manners often include nothing more than envy of the higher level and contempt of the lower class.

De Tocqueville is an observer of his near past and current time. To him, manners were cultivated within the aristocracy and became hereditary. A monarchy, to be sure, can be overthrown, but De Tocqueville wonders what will replace an aristocracy’s manners. His concern reminds me of two sayings. G.K. Chesterton advises, “Don’t ever take a fence down until you know the reason it was put up.” A Bantu proverb warns, “If a man . . . throws away his good customs, he had better first make certain that he has something of value to replace them.”

Democracies have more individualistic manners. There is not an “ideal model” to follow. Manners are based on the “feelings and notions of each individual.” If an aristocracy disappears, De Tocqueville writes that “one still remembers that a precise code of politeness existed,” but a “common law of manners” no longer exists.

According to De Tocqueville, outsiders consider American manners to be the same for all Americans. Not true, the Frenchman counters. If one has ever traveled across the nation, one observes differences within an overall subscription to American ideas. In other words, one can notice peculiarities. Think of America as Niccolo Paganini’s “Variations on a Theme.” It is the same song, yet expressed in various passionate ways. 

De Tocqueville’s statement reminds me of a book, There Are Many Souths. When people say the “South,” for instance, they think of a monolithic place. Yet, it is a diverse region with various dialects and colloquialisms and even barbecue preferences.

De Tocqueville counters British criticisms of American manners by pointing out that the English of his time needed to look at themselves. In many cases, they are what they criticize. The American problems, De Tocqueville claimed, were projections of what existed in Britain.

A benefit to a democracy with American manners, writes the French aristocrat, is that people can be themselves. Actions and social customs (or lack thereof) might not be as refined, yet manners tended to be more sincere: In De Tocqueville’s words, “in democratic peoples, manners are neither so learned nor so regular; but they are often more sincere.”

When comparing an aristocracy with a democracy, De Tocqueville makes a poignant observation. Although good manners are appreciated, actions can be a façade and a cover for cruel intentions. He writes, “great external appearances can often hide very base hearts.” In contrast, an unrefined person can have the best and most sincere intentions.

In short, De Tocqueville appreciates a uniform code of manners yet hopes it is constantly infused with genuineness.

 

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

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Essay 85: “How The Equality Of Social Conditions Helps To Maintain Good Morals In America”, “How The American View The Equality Of Men And Women” & “How Quality Naturally Divides Americans Into A Multitude Of Small Private Societies” (Vol. 2 Pt. 3 Chs. 11-13)

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Guest Essayist: Former Speaker of the House John Boehner

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 567 (start at chapter 11 heading) – 578 (stop at chapter 14 heading) of this edition of Democracy in America.

As a regular guy who once had a big job, I’m grateful to have this opportunity to once again take part in Constituting America’s 90-Day Study, with this year’s focus on Alexis De Tocqueville’s Democracy in America. It was the honor of my life to serve as Speaker of the House of Representatives; a position that required me to serve simultaneously as my party’s leader and as leader of the institution itself. The direct and frequent election of our representation in the lower chamber makes it unique in that it allows for more engagement and responsiveness to the will of the electorate. It’s why we call it the People’s House, as our Founders believed it should have “an immediate dependence on, and intimate sympathy with, the people.” 

In Volume 2, Part 3 of De Tocqueville’s book, morality and equality take center stage in Chapters 11 through 13. His foresight on the gradual journey for equality as it applied to women’s rights was profound, and was likely met with skepticism by the society of his time, but his prediction was based on the laws and how our Founders described our rights. As you’ll recall, the Founders wrote that every individual possessed fundamental rights, even before these rights were ever put into writing. They were described, as stated in the Declaration of Independence, as ‘unalienable’ and their existence was a ‘self-evident’ truth. This notion affirmed this equality De Tocqueville is discussing, as well as the right to life, liberty, and the pursuit of happiness. While the societal times may not have shown us to be there yet, the truth was clear and thus, our gradual growth to reach equality would continue as long as we the people continued to support this grand experiment in democratic governance.

To do so, we must have a level of trust in our fellow citizens to take their civic duties seriously and to act in good faith for the betterment of the country–not solely for their personal benefit. And it’s here where De Tocqueville seemed to struggle with his understanding of this concept: in his view, how could man not be selfish in his endeavors to acquire more power, higher standing in society, etc? And that is one of the challenges we face. Our democracy is a living, breathing entity and our Founders had the smarts to make it so that limits would be placed on our elected leaders. Our Founding Fathers knew that the power would always reside with the citizens to make changes where necessary–both in our representation and with the foundational documents of our democracy. For example, the threshold to amend the Constitution is expectedly high, but it is a privilege and a right afforded to We the People.

And while the questions of morality may not be central to our political discourse today, it has always been a core principle of mine and so many others who enter public service. And it’s here where De Tocqueville starts to question the self-serving motives of some and how that could impact the overall effort of growing our democracy to where it could go and would eventually become. 

Throughout my life, I always believed — and still do — that if you do the right things for the right reasons, the right things will happen. And I brought this ‘Boehnerism,’ along with many others, to Congress as I worked to uphold the oath I took to serve and defend the Constitution against all enemies, foreign and domestic. Governing is not easy, which may seem like an incredible understatement. But it’s true. Governing is not about doing the impossible, but at its core, it is the art of the possible–it requires us to look for common ground where it can be found, all without compromising on our principles or conflicting with our moral compass. 

My greatest worry about our system is that we will lose the ability to distinguish between finding common ground and compromising, which has become a sign of weakness and defeat. I firmly believe you can find common ground with those who subscribe to a different party affiliation or ideology, and you can do so without abandoning your core beliefs. In fact, our democracy requires it from time to time. And our system of government would break down completely if not for people on both sides of the fence who understand that distinction and work to find those opportunities to work in bipartisan fashion.

Our work to create a more perfect union, as our Constitution instructs us to do, will continue as long as we the people stay engaged in the process, never take for granted our freedom to choose and forge our own paths in life, and remain steadfast in our pursuit of the values and ideals our Founders established for each of us. 

John Boehner, the 53rd Speaker of the House, led the US House from January 2011 to October 2015, a time during which he navigated some of the most difficult legislative challenges of the modern era and forged strong relationships with business and government leaders throughout the world. An Ohio-native and former small businessman who entered public service because of his desire to remove barriers to economic growth and private-sector job creation, Speaker Boehner is respected on both sides of the political aisle for his efforts to find common ground on major policy matters without compromising on principle, and for his belief that individuals of competing viewpoints can “disagree, without being disagreeable.” After leaving Congress, Speaker Boehner joined Squire Patton Boggs—a full-service international law firm—to serve as a senior strategic advisor to the firm’s clients in the US and abroad, focusing on global business development.

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Essay 84: “Education Of Girls In The United States” & “How The Girl Can Be Seen Beneath The Features Of The Wife” (Vol. 2 Pt. 3 Chs. 9 & 10)

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Guest Essayist: Dorothea Wolfson

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 563 (start at chapter 9 heading) – 567 (stop at chapter 11 heading) of this edition of Democracy in America.

Nearing the end of his brilliant study of American democracy, in which De Tocqueville has shared an account of the many strengths of American democracy and its national character, De Tocqueville tells his readers that if they want to know which factor most accounts for America’s success, for its “singular prosperity and growing force of this people, I would answer that it is to the superiority of its women.” De Tocqueville’s acknowledgment of women as the source of America’s strength may come as a surprise. How could women – who back in the 1830s were not considered citizens, and were not allowed to hold jobs, speak in public meetings, inherit property, or go to college, be the decisive factor explaining the flourishing of America? 

De Tocqueville’s praise of American women needs to be considered within the context of his political science. De Tocqueville thought that America was such a successful democracy chiefly because of its unique ‘mores’ which he defines as “habits of the heart.” (275) Mores are the habits and practices that constitute American culture – how Americans think, feel, and interact not only with each other but with the rest of the world.  The mores De Tocqueville observed in the US – its religiosity, innovation, strong marriages, enterprise, high levels of civic engagement, and overall freedom-loving disposition – served to stabilize  America’s democratic polity.  But where did these mores come from? De Tocqueville stressed that in the United States they are cultivated primarily by women: “There have never been free societies without mores, and…it is woman who makes these mores. Therefore, all that influences the condition of women, their habits, and their opinions has great political interest in my eyes.” 

Education of Girls

So, while women in America were not on the frontlines of politics (they would have to wait until 1920 for the 19th Amendment to give them the right to vote), they played a huge role behind the scenes in supporting American political institutions.  The historian Linda Kerber coined the phrase, “republican motherhood” to capture the political role women played in cultivating civic virtue in the early years of America.  Kerber called the family “the fourth political branch” for the important role women played in shaping citizens.   

De Tocqueville believed women’s role of shaping mores was so central to the success of American democracy that he devoted separate chapters in his book to their education and to their roles as wives.  In contrast, De Tocqueville does not devote an entire chapter to the education of boys or to their roles as husbands.

It’s important to keep in mind that in nineteenth-century America the democratic revolution was unravelling the customs and traditions that once served as the cornerstones of civilized society. De Tocqueville observes that Americans appreciate that the aristocratic safeguards governing courtship between men and women have been weakened. Parental authority is weaker too. The erosion of these former protections creates “perils” towards women in particular. Thus, Americans have decided rather than try to “cloister” the American girl, as the French do, it is better to give her freedom to see the world and an education that will strengthen her reasoning powers so that she can navigate her own freedom. This education starts early and is gradual. Before she hits adolescence, she already “thinks for herself, speaks freely, and acts alone.” The education she receives equips her with “a precocious knowledge of all things” and does not seek to hide “the corruptions of the world” from her. The American girl looks firmly upon the world and goes out into it, armed with reasoning powers and “confidence in her own strength” to protect herself “from the perils with which the institutions and mores of democracy surround her.”  

The American Wife

The striking aspect of the American girl’s education is the amount of freedom with which she is entrusted.  Her parents’ home is one of “freedom and pleasure,” De Tocqueville writes.  Yet this carefree, independent girl becomes a different creature as a wife.  The independent spirited young girl marries and becomes a submissive helpmeet, limiting herself to the chores and responsibilities of the domestic sphere. De Tocqueville argues that this is not a contradiction – that the education she had as a young girl prepares her for her role as wife in large part because she is aware of the perils of freedom and the role she must play in building and safeguarding the future.  The future of America is moving westward, and American women, because of their early education, possess an “internal force” and the “courage” to face any hardship that may arise. (see also Tocqueville’s important note, 699-701).  The sacrifices women make in an age of individualism and freedom stand out all the more for De Tocqueville. De Tocqueville reminds us that America’s greatness rests as much on, if not more, on American women as it does on their enterprising husbands.  Since the time De Tocqueville wrote, much has changed, and women are no longer limited to the domestic sphere. But this also raises the question of who is shaping the mores that De Tocqueville believed were necessary for the perpetuation of American democracy. 

 

Dr. Dorothea Wolfson is the Program Director and a senior lecturer for the Masters in Government program at Johns Hopkins University. Her research and teaching interests center on democracy and civic engagement, American political thought, and family policy. Dr. Wolfson has published articles on Alexis de Tocqueville, Thomas Jefferson, Abigail Adams, John Locke, and children’s literature. She has collaborated on a book, Our Sacred Honor, with William J. Bennett, and her essays and reviews have appeared in The Claremont Review of Books, The American Interest, and Perspectives on Political Science. Dr.

Wolfson has taught at Johns Hopkins University since 1995. She also serves as a thesis adviser.

Before joining Johns Hopkins, Dr. Wolfson was a policy analyst at Empower America. Dr. Wolfson holds a Bachelor of Arts from the University of Chicago and a PhD in government from Cornell University.

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Essay 83: “How Democratic Institutions And Customs Tend To Raise The Cost And Shorten The Eleventh Of Leases”, “Influence Of Democracy On Wages” & “Influence Of Democracy On The Family” (Vol. 2 Pt. 3 Chs. 6, 7 & 8)

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Guest Essayist: Jon D. Schaff

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 553 – start at chapter 6 heading) – 563 (stop at chapter 9 heading) of this edition of Democracy in America.

Alexis De Tocqueville came to America in the 1830s. At that point industrialism had already made significant progress in Europe. In the United States, industrialization would not really explode until after the Civil War in the 1860s. In the first two chapters considered here De Tocqueville seems to be anticipating American industrialization. De Tocqueville ponders how, as a democracy, America’s economy will develop differently than that of aristocratic Europe. 

Economically, America was distinct from Europe in two important ways, according to De Tocqueville. First, America had vast expanses of undeveloped land. Land was relatively easy to acquire. Also, America had rejected the aristocratic practice of primogeniture, the notion that all land is inherited by the eldest son. Put these two notions together, you get an America without enormous estates that pass undivided from one generation to the next. Any grand estates in America get divided amongst all children (at the least the males, in this era) and anyone seeking land can acquire it cheaply. 

America simply did not have the entrenched wealth that existed in Europe. Entry into agriculture or industry was relatively easy, De Tocqueville argues. He channels James Madison’s arguments Federalist 10 wherein Madison argues that the commercial society of America will produce a diversity of economic interests. In America there will not be the landed few against the landless many. America is the land of entrepreneurship, we might say. 

For this reason, De Tocqueville thinks wages will be high in America. With many employment opportunities available to laborers, employers have to treat employees well or the employees can simply leave for another job. In De Tocqueville’s time there was an emerging economic vision in America called “free labor”. The free labor ideology held that the best economy was one where each person could easily set to work on his own, essentially becoming a small business owner. This might be a small farm, a small shop, a small factory. Free labor thinkers opposed slavery as they saw it as an institution that favored large landowners over more modest operations. The mantra of the free labor movement was “Free soil, free labor, free speech, free men.” 

De Tocqueville does warn against the dangers of centralization of economic power. Anticipating American industrialism of the late nineteenth century, De Tocqueville worries that most laborers will simply be wage earners, i.e., they will work for someone else. This is contrary to the free labor idea that most people will work for themselves. Those who work for wages lose some of the habits of self-government. Also, as economic power consolidates, it gives employers more power to dictate wages. Workers may have to band together to press their case. In this sense, De Tocqueville foresees the rise of labor unions. 

This discussion of economics dovetails in a peculiar way with one of the most provocative chapters in all of Democracy in America, namely his chapter on the democratic family. De Tocqueville, in his discussion of economics, has suggested a fluidity in American circumstances that stands in stark contrast to aristocratic Europe. In America, life is in constant motion, what De Tocqueville sometimes calls an “inquietude” or a kind of unsettled state. Family is not exempt from such forces. 

The aristocratic family is governed by tradition and usually affiliated with a particular place. Aristocratic families are typically dominated by a father, a patriarch whose family has lived in the same house for many generations. Being first born son offers definite privileges. Familial relations are often cold and formal. Even as children reach adulthood, the father still rules over them. 

None of this is so in the democratic family. Think of the typical family in a television comedy show. This is essentially what De Tocqueville sees coming for the democratic family. Democracy is uneasy with tradition, established forms, authority that does not arise from consent. De Tocqueville describes the democratic family as being less hierarchical, less formal, more naturally affectionate. We might think of American families today. How many of us call our father and mother “sir” or “ma’am”? We usually use informal terms such as “dad” and “mom.” When American children grow older, they set out on their own. They now view themselves as equal to their parents. The idea that grown adults would still be subservient to their father strikes us as odd. 

De Tocqueville is uncertain whether the democratic family represents a gain or a loss. While he is sure that as individuals we benefit from a more loving, affectionate family, he speculates that society may be worse for this change. The “inquietude” of democracy leaves Americans adrift, unable to find steady sources of meaning. It is just this divorce from traditional sources of meaning such as religion and family that makes De Tocqueville fear that democracies are more, not less, susceptible to despotism. While we may have more affection in our lives, the breakdown of family may leave us democrats looking to the government as a substitute parent. 

 

Jon D. Schaff is Professor of Political Science at Northern State University in Aberdeen, South Dakota, where he has taught since 2001. He teaches classes in American political thought, American political institutions, as well as politics in literature and film. He is author of multiple articles and book chapters as well as two books: Abraham Lincoln and the Limits of Liberal Democracy and Age of Anxiety: Meaning, Identity, and Politics in 21st Century Literature and Film (co-authored with Anthony Wachs). He co-edited Humanitas History of America II: From Revolution to Reconstruction, 2 Vols for Classical Academic Press.

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Essay 82: How Democracy Alters The Relations Between Master And Servant (Vol. 2 Pt. 3 Ch. 5)

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Guest Essayist: Jonathan Den Hartog

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 546 – 553 (stop at chapter 6 heading) of this edition of Democracy in America.

De Tocqueville in this chapter continues his investigation of social customs and mores in America, but he uses his description to support his larger point about the contrast between aristocratic society and democratic society. His analysis here reinforces his on-going contention that democracy in America means much more than simply having large numbers of citizens voting. When it comes to employment and working for others, De Tocqueville asserts, “Democracy does not prevent these two classes [masters and servants] from existing; but it changes their spirit and modifies their relations.”

In describing the aristocratic view, De Tocqueville describes a society in which servants accept and endorse hierarchy of both authority and social standing. Because servants are permanently in a lower class, they cannot change their standing. They accept the commands of their master and often come to identify their interests with their master’s interests. They also accept a hierarchy amongst themselves. De Tocqueville observes, “Whoever occupies the last step in a hierarchy of valets is base indeed.” This reality has been captured for Americans by depictions of service in the period drama Downton Abbey. While all those in service acknowledge the superiority of the Grantham family, there exists “downstairs” among the servants a rigid hierarchy that extends from the Butler Mr. Carson all the way down to the newest footman. The youngest footman can dream of nothing more than over many years ascending within this household hierarchy.

De Tocqueville then contrasts this aristocratic, European view with the American reality. Put simply, “Equality of conditions makes new beings of servant and master and establishes new relations between them.” Rather than forming a separate or permanent class, servants saw themselves as undertaking a temporary role, in the confidence that they would shortly rise in their conditions. “At each instance,” De Tocqueville observes, “the servant can become a master and aspire to become one; the servant, therefore, is not another man than the master.” What binds the two together is the existence of a written contract, freely entered into by both sides.

De Tocqueville then has to modify his description. He acknowledges that he is talking about the labor conditions among whites in the North and the West. The existence of slavery in the South made for totally different conditions there. For De Tocqueville, however, “particularly in New England, one encounters a fairly large number of whites who consent to submit temporarily to the will of those like themselves in return for a wage. I heard it said that these servants ordinarily fulfill the duties of their state exactly and intelligently, and that without believing themselves naturally inferior to whoever commands them, they submit without trouble to obey him.” (551)

De Tocqueville’s description of New England employment echoes other testimonies. In an early American play, The Contrast by Royall Tyler, we see a New England youth named Jonathan. He is serving as a footman for a Revolutionary War veteran named Manly. When described by a European-trained valet as “a servant,” Jonathan objects strenuously. He insists, “I am Colonel Manly’s waiter.” The word choice is significant, as it justifies his status and the dignity of his employment. Jonathan then protests that he is “a true blue son of liberty,” and he could not be a servant because “no man shall master me.” He emphasizes his equal status and insists that his family’s farm was just as good as that of his employer.

De Tocqueville would immediately grasp the import of this exchange. The status of servanthood—such as a “waiter”—is temporary. It would last only as long as the contract lasted and would not extend one step beyond the contract.  It also did nothing to change the intrinsic equality of both employer and employee as humans and as citizens. Each carried within himself the same political and social weight, just as their votes would be equal at the next election.

A generation after De Tocqueville, the rising Illinois politician Abraham Lincoln pointed to a very similar conviction in the West. Addressing the Wisconsin State Agricultural Society, Lincoln praised the American approach of freely accepting to work for wages as a first step in a long career. He rejected the “mud-sill theory” that expected a permanent class of workers mired in drudgery. In contrast, Lincoln praised the free labor ideal which encouraged young men to sell their labor but maintained multiple routes by which they could rise in society.

For contemporary readers, then, De Tocqueville’s chapter on servants and masters can reaffirm a long-standing American attitude to employment. Many work for others—often quite closely. That labor, however, should be such that it doesn’t prevent them from rising economically—and perhaps eventually hiring others. Further, no matter the job, each individual bears inherent dignity as a citizen and so deserves society’s respect.   

Dr. Jonathan Den Hartog is Professor of History and the Chair of the History Department at Samford University. He is the author of Patriotism and Piety: Federalist Politics and Religious Struggle in the New American Nation and the co-editor of Disestablishment and Religious Dissent: Church-State Relations in the New American States.

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Essay 81: “How Customs Become Softer As Social Conditions Become More Equal”, “How Democracy Makes The Normal Relations Between Americans Easier And Simples”, “Why Americans Are So Difficult To Offend At Home Yet So Easily Offended In Europe” & “Consequences Of The Three Preceding Chapters” (Vol. 2 Pt. 3 Chs. 1-4)

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Guest Essayist: Frank Garmon Jr

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 535 – 545 of this edition of Democracy in America.

One of the running themes throughout Democracy in America is De Tocqueville’s contention that the equality of conditions exerts a moderating influence on American culture. Compared to the various European powers with entrenched social hierarchies, vast wealth disparities, and undemocratic political systems, Americans appeared egalitarian in their social relations, material prosperity, and politics. 

In these chapters De Tocqueville asks a series of questions: Why do customs become milder as conditions become more equal? Why are Americans excited when they encounter their fellow citizens when travelling overseas? Why are Americans so difficult to offend at home yet easily insulted abroad? 

The first chapter builds upon his earlier arguments by proposing that as conditions become more equal, tastes and preferences become milder. Whereas a huge gulf existed between elite culture and peasant culture in nineteenth-century Europe (between ballet and boxing), Americans generally preferred simple and popular entertainment. 

De Tocqueville argues that this homogenization of tastes cultivates a greater capacity for empathy in democratic countries. When the ranks of society are almost equal, he argues, everyone can quickly judge the feelings of others by imagining themselves in another’s shoes, emphasizing that “he casts a rapid glance at himself; that is enough for him … imagination immediately puts him in their place”.

Empathy is more difficult to cultivate in aristocratic nations, De Tocqueville argues. Aristocracies are very good at connecting individuals through mutual obligations, but each class has difficulty sympathizing with one another. He reasons that genuine sympathy can only arise when individuals see themselves in others. In an aristocracy, then, sympathy can only materialize between members of the same class. 

At the close of the chapter De Tocqueville contrasts the compassion Americans feel toward their fellow man with the insensitivity exhibited by slave masters. Here the absence of equality prevents the slaveholder from forming any common bond that could engender empathy. 

The next chapter considers why Americans seek out their fellow countrymen abroad, while Europeans hold their compatriots at arm’s length. 

Englishmen abroad routinely avoid socializing with one another whenever it can be prevented. De Tocqueville emphasizes that “Not being able to judge at first glance what is the social situation of those whom he encounters, he prudently avoids entering into contact with them”. The Englishmen find the entire conversation to be unnerving. Each man worries that they will misjudge the other’s status, or that their own rank will be misperceived. 

When Americans meet one another outside the United States, by contrast, they become fast friends. The absence of a class system allows Americans to associate freely. They fear no social repercussions from a chance encounter.  

In the third chapter De Tocqueville explains how difficult it is to offend an American at home, but how easily they feel slighted when travelling in Europe. To illustrate his point, De Tocqueville describes his efforts to end an unwelcome conversation:

“I contradict an American at every turn in order to make him feel that his discourses fatigue me; and at each instant I see him make new efforts to convince me; I keep an obstinate silence, and he imagines that I am reflecting deeply on the truths that he presents to me; and when finally I suddenly escape his pursuit, he supposes that a pressing affair calls me elsewhere. This man will not comprehend that he exasperates me without my telling him, and I cannot save myself from him without becoming his mortal enemy”. 

In aristocratic countries, De Tocqueville notes, etiquette is elevated to a science. One must strike a delicate balance to avoid offending the sensibilities of others or acting in a manner unbecoming of one’s social station. Too little courtesy, or too much undeserved praise, can lead to embarrassment. 

In democratic nations, by contrast, social customs are more fluid. The rules of etiquette are not universally agreed upon, and Americans care more about the intentions behind an action than the action itself. Consequently, De Tocqueville argues that it is very difficult to offend Americans at home. 

Yet in Europe the same American who would normally brush off minor slights becomes suddenly obsessed with them. The ranks of European class systems are difficult for him to perceive and fully comprehend. The American wonders where exactly he fits in this hierarchy, and how exactly he should present himself. His lack of awareness causes him to advance with a certain clumsiness, highly attuned to perceived slights. De Tocqueville notes that “he proceeds always like a man surrounded by ambushes”. 

Through each of these observations, De Tocqueville illustrates how equality shapes not only the structure of society, but also the behaviors and attitudes of individuals within it. 

Frank W. Garmon Jr. is assistant professor of American Studies at Christopher Newport University where he specializes in American political economy. His first book, A Wonderful Career in Crime: Charles Cowlam’s Masquerades in the Civil War Era and Gilded Age, was published by Louisiana State University Press in July.

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Essay 80: “What Gives Almost All Americans A Preference For Industrial Occupations” & “How An Aristocracy May Emerge From Industry” (Vol. 2 Pt. 2 Chs. 19-20)

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Guest Essayist: Melissa Matthes

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 526 (start at chapter 19 heading) – 532 of this edition of Democracy in America.

“It has been remarked several times that industrialists and men of commerce are possessed of an immoderate taste for material enjoyments, and commerce and industry have been blamed for that; I believe that here the effect has been taken for the cause.” 

In this rather remarkable chapter, What Makes Almost All Americans Incline Toward Industrial Professions, Alexis de Tocqueville offers a sociology of homo economicus. Conditions of equality he asserts make men industrious. Equality makes him “active, enlightened, free, at ease, full of desires” and thus he begins to conceive “the taste for material enjoyments.” Industry and commerce, De Tocqueville insists, are democratic man’s natural inheritance. In addition, because man’s natural inclinations make him restless, appetitive, and fearful these qualities, too, turn him toward commerce and industry as well as its corollary – wealth accumulation.

Agriculture, on the other hand, is static and more often the purview of those who already have wealth and can tolerate the slow process of accumulation it provides, “one is enriched by it only little by little and with difficulty.” For De Tocqueville, this explains, as well, why aristocratic societies, the landed gentry, so to speak, are agrarian rather than industrial.

There is a psychology as well to De Tocqueville’s homo economicus. Although there is no mention of families, or of women (not wives, sisters, or mothers) it is the relationship between fathers and sons which also animates the industrial impulse: men work because they are both competitive with their fathers and fearful for their sons, “In democratic countries a man, however opulent one supposes him, is almost always discontented with his fortune, because he finds himself less wealthy than his father and he fears that his sons will be less so than he. Most of the rich in democracies therefore dream constantly of means of acquiring wealth.” 

Commerce fills “the imagination of the crowd…Those who live amid democratic instability constantly have the image of chance before their eyes, and in the end they love all undertakings in which chance plays a role.” Because democracies make everything or anything possible (De Tocqueville calls it instability) democratic citizens are enthralled by all things in which chance is involved. Perhaps, De Tocqueville was right. It is one way to account for the American obsession with lottery tickets, with draft kings and all other forms of gambling. He elaborates, it is not just the gain that it promises, it’s the “emotions that it gives them.” Taking chances, then, is a democratic impulse. 

These paragraphs are quickly followed by a celebration of the rapid progress that Americans have made, “they form the second maritime nation in the world…the greatest industrial enterprises are executed without difficulty…Americans arrived only yesterday on the soil they inhabit, and they have already overturned the whole order of nature to their profit.” In notes on this chapter, De Tocqueville cautions that because of this focus on industry, “their minds become accustomed to substituting in everything the idea of the useful for that of the beautiful.” (pg. 978, Yale Manuscript) * And, it is this critique which begins to help explicate the rather unexpected, next chapter.

Chapter 20 How Aristocracy Could Issue from Industry seems to unravel what the previous chapter so enthusiastically commended. 

It is a warning for how democratic equality can become undone. Echoing Adam Smith’s The Wealth of Nations, De Tocqueville notes how economies of scale are a font of freedom for the worker “the general production of the work comes more easily” as well as the source of inexpensive goods. Yet, there is a cost to the worker, as Smith notes as well, “that the man in him is degraded as the worker is perfected.” Ironically, it is also like what Karl Marx will name alienation, “he no longer belongs to himself, but to the profession he has chosen.” As the worker is diminished, so the master as De Tocqueville names him, is extended and he becomes the “administrator of a vast empire.” 

The cheapness that puts these inexpensive objects within the reach of “mediocre fortunes” becomes a greater impetus in striving for success by  the master. Thus, more opulent and more enlightened men devote their wealth and their science to industry while the multitude of workers remain trapped in their dependence; it is an aristocracy that develops by “a natural effort from within the very heart of democracy.”  

This aristocracy is different than the European model, according to De Tocqueville, because it has no common spirit or object, no shared traditions or hopes. “There are then members, but no corps.” De Tocqueville notes this aristocracy founded by trade is not interested in governing the worker, only in making use of him. Further in contrast to the European model which felt obliged by mores and sometimes law to come to the aid of its servants and to relieve their miseries, “the manufacturing aristocracy of our day, after having impoverished and brutalized the men whom it uses, leaves them to be nourished by public charity in times of crisis.” 

  De Tocqueville ends the chapter with a rather prescient alarm, “for if ever permanent inequality of conditions and aristocracy are introduced anew into the world, one can predict that they will enter by this door.” This analysis dovetails with De Tocqueville’s well-known anti-materialism. It is a worry that the focus on wealth will also cause the gradual loss of traditional religious faith – another important bulwark in democracy, as De Tocqueville details elsewhere in Democracy. It is a worry also embedded in his assessment of the ideal democratic statesman as one who will show how what is just can also be useful rather than merely that the useful can be right. It is a wise recommendation in our time, as well. 

*Note: In 1954 Yale University acquired the quasi- totality of De Tocqueville’s manuscripts as well as the final draft of Democracy in America. This collection holds original manuscripts as well as copies of lost originals. Of interest to readers of the edition used for this short essay, the Yale manuscript also includes drafts of the second part of the Democracy, to which De Tocqueville gave the title “rubish” (referring to the English rubbish, meaning debris, remnants; notably misspelled by De Tocqueville throughout) A full chronicling of the manuscripts’ loss and retrieval and piecing back together can be found in the Foreword to the Democracy in America edition edited by Eduardo Nolla and translated by James T Schleifer.

 

Dr. Melissa Matthes is a full professor in the Department of Government at the United States Coast Guard Academy in New London, CT.  She teaches courses in religion and politics, ethics, and the history of political philosophy. She is the author most recently of When Sorrow Comes: The Power of Sermons from Pearl Harbor to Black Lives Matter, published by Harvard University Press in 2021. She holds a PhD from the University of California and a Masters of Divinity from Yale Divinity School. 

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Essay 79: Why Americans Consider All Honest Occupations As Honorable (Vol. 2 Pt. 2 Ch. 18)

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Guest Essayist: Jeff Scott

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 525 – 526 (stop at chapter 19 heading) of this edition of Democracy in America.

Alexis de Tocqueville made detailed observations about the American work ethic in his travels through America. De Tocqueville noted during his time studying democracy in America, that rich people, maybe not all, found that work was owed by them to the general public. This is largely because heredity wealth wasn’t prevalent during the early American era. Today, heredity wealth is more prevalent in our society and has possibly altered the attitudes toward some “honest occupations” as being always honorable or worthwhile. However, Americans generally have kept the attitude of “giving back,” especially in times of emergencies, travesties, and holidays. 

In Democracy in America, De Tocqueville brings to light how honest work is viewed in America compared to Europe. He notes the idea of profit and work being seen as separate identities in Europe, but openly connected in America. This may be obvious as to why for many readers, but as one looks to the beginnings of America, work, often farming, led to regular citizens being able to create wealth that was handed down from one generation to the next in Europe. It took Americans a few generations to create “old money.” Since many of our country’s early American founders and builders, from Stephen Girard to John D. Rockefeller to Henry Ford, among others, built their fortunes mostly from the ground up, it was a given that honest professions would be an accepted path to upward mobility in America.

Hence, “honest” occupations and work ethic have become part of the American civic duty and identity. Unlike most European powers of the time or before, the harder you worked, the more you could move up in status, respect, and quality of life. Your place or status in society was no longer preordained. This attitude gave hope to the commoner of America that he could, through persistence, taking advantage of opportunities, grit, and American individualism, rise above his lot in life. De Tocqueville, knowing or unknowing, was marking the evolution of a new era not only of human existence but of human hope. 

Near the end of the chapter, De Tocqueville finishes by stating, “In the United States professions are more or less onerous, more or less lucrative, but they are never high or low. Every honest profession is honorable.” It raises the question, is this still true today, or was the aspect of “every honest profession is honorable,” ever really true? Was De Tocqueville able to get the “honest” impressions of the citizens or was it, as sometimes happens in our time, comments made to make people look good? There is possibly truth to be found in both lines of thinking. 

From the day-to-day observations I’ve seen from people throughout the country, most people do look at honest, hard work as worthwhile and honorable. It has been ingrained into the American psyche. However, over time, when individuals or groups of people pull far ahead in particular fields financially, some fields begin to be looked down upon. When De Tocqueville toured America, the farmer was the quintessential image of the hard-working American, being that civic warrior, and gaining wealth. As the 19th century progressed, the farmer was replaced by the industrial giants of the factory, steel, and railroad industries. Farmers began to be looked down upon. Then, as we moved into the 20th century, World War I was thrust upon society. During this time, the farmer once again became essential in the American eye in terms of feeding the mass of soldiers. It was the American farmer who saved our troops by providing food that others couldn’t. 

Thus, as De Tocqueville observed, honest professions give credence to one’s life as well as self-respect and determination that are often passed down from generation to generation in the American way of life. As we near the 250th anniversary of the birth of the United States, there is no doubt hard work, honest endeavors of improvement, service to one’s community and family, and being able to follow dreams of success, are all still with us. This does come with caution, however. As technological advances continue, this often has the effect of “honest” professions being less attainable for the working person. America will continue to thrive as long as opportunity continues to present itself and citizens continue to stay hungry. The American citizen must keep the inner hope that what one does for occupation matters as much as the “honest” occupations of our forefathers. I have the greatest hope for our future because of the regular citizen who still thrives on hard, honest professions that will continue to strengthen a foundation we can all build our lives upon. 

 

Dr. Jeff Scott serves as Executive Director of Academic Operations at Troy University. Jeff has taught and led at every level of education In his current role, Jeff develops and oversees programs designed for students and teachers that promote civic education through the lens of history. Dr. Scott has presented nationally at several conferences, including the National Council for the Social Studies and AP Conference. He was the keynote speaker for the Florida Council for the Social Studies in 2024.

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Essay 78: How In Ages Of Equality And Doubt It Is Important To Move The Goal Of Human Endeavor Beyond Immediate Concerns (Vol. 2 Pt. 2 Ch. 17)

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Guest Essayist: Tony Williams

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 522 (start at chapter 17 heading) – 524 of this edition of Democracy in America.

 

In his 1796 Farewell Address resigning from the presidency after two terms, George Washington advised his fellow Americans to understand the link between religion, virtue, and self-government. Washington wrote, “Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports.” 

Washington continued to elaborate, explaining with a syllogism that, “It is substantially true that virtue or morality is a necessary spring of popular government.” He reasoned, along with most other founders, that religion was the basis of virtue and morality, and that virtue and morality were necessary foundations of republican self-government. This is because republics needed citizens and leaders who practiced patriotic self-sacrifice, moderation, self-control, and the public good over private interest. 

During the 1830s and 1840s, the Second Great Awakening was a time rife with religious revivalism and expansion of Protestant denominations focusing on a personal and emotional relationship with Christ. The Second Great Awakening had profound social effects as it promoted widespread moral and social reforms including abolitionism, temperance, prison reform, and women’s suffrage. 

This was the America that Alexis de Tocqueville visited in 1831-1832, and described in his book, Democracy in America. It should hardly surprise us that De Tocqueville offers his views on the important role of religion played in the American republic. 

De Tocqueville notes that religious faith provides the means for suppressing human inclinations for sin by exercising self-control over a “thousand little passing desires.” He argues that humans without God easily give into their “desires without delay.” Greed, gluttony, immoderation, and recklessness are the inevitable result in his estimation. 

De Tocqueville advises that a society without virtue is characterized by “the instability of the social state” as citizens easily give themselves to the passions and desires of human nature. He warns that for a self-governing people, “The danger I point out is increased.” In a monarchy, people have to be good subjects; in a republic, the people have a duty to be good citizens. A republic rooted in sin and vice would quickly become unworkable and collapse.

In a republic, the citizens must practice the civic virtues that knit and bind society together. Citizens must govern their passions and practice virtues to make self-government possible. Much like Washington in his Farewell, De Tocqueville writes that civic virtue leads to true happiness and a thriving polity.  

For De Tocqueville, leaders are just as responsible, if not more so, for practicing virtue as are the citizenry. This is because representatives in a democracy “by their example…also teach particular persons the art of conducting private affairs.” In other words, they are important exemplars of character. 

For De Tocqueville, one of the roles of government is supporting the institutions of civil society in “habituating citizens to think of the future.” He states that even if society is not very religious, government encouragement of practicing civic virtue in a republic will turn the eyes of the people toward heaven and permanent things. It would “lead the human race by a long detour back toward faith.” 

De Tocqueville concurred with the American founders that religious practice promotes virtue and that virtuous citizens are necessary to a healthy and well-functioning republic. We would be wise to remember this logic as we prepare for the celebration of the 250th anniversary of the Declaration of Independence. We can abide the principles of the Declaration when we practice moderation and work together with a common purpose and spirit for the common good as Americans. Religion and civic virtue supports this mission. 

 

Tony Williams is Senior Teaching Fellow at the Bill of Rights Institute; a Constituting America Fellow; author of Washington and Hamilton: The Alliance that Forged America, and Hamilton: An American Biography.

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Essay 77: How An Excessive Love Of Prosperity Can Harm That Very Prosperity (Vol. 2 Pt. 2 Ch. 16)

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Guest Essayist: William Reddinger

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 521 (start at chp. 16 heading) – 522 (stop at chap. 17 heading) of this edition of Democracy in America.

In the preceding chapter, De Tocqueville argued that religion serves to moderate materialism in democratic societies. Here in chapter 16, he again explored the social utility of religious beliefs, but it almost seems that he wished to give a word of caution to the reader, as if to say that while democratic cultures have a natural drift toward materialism, material goods are still desirable and necessary.

We may summarize the argument of the chapter as follows.  De Tocqueville explains that the ability to promote the goods of the body is closely connected to the health of the soul. Indeed, human beings differ from the lower animals in that we use our souls and our rational faculties to create material goods. We do not use only instinct, as with beasts.  Moreover, with the soul, we multiply these enjoyments of the body. One can provide for the needs of the body in proportion as the soul is strong; as the soul is weakened, it is less able to provide for the needs of the body.  In a healthy political community, the souls of citizens must remain strong, if only to put its force behind the necessary activity of providing for the needs of the body.

What De Tocqueville stated somewhat abstractly, we can try here to make somewhat more concrete and more succinct: if, as De Tocqueville feared, democratic citizens sometimes are consumed with the pursuit of more and more material things, it can dry up and wilt the moral aspects of our nature. But this could paradoxically erode the ability to produce the goods that we need or at least want, for production is not an activity unrelated to our moral qualities.

To understand a healthy economy, it may be necessary to look beyond aggregate data like unemployment rates, gross domestic product, or consumer spending. While government policies and aggregate data may be helpful metrics, a healthy economy and political community emerge also from the habits of people who live their daily lives in healthy cultures in which they have a sense of responsibility, a willingness to help others charitably, the discipline to use thrift and hard work when necessary, and sufficient courage to take the kinds of risks necessary to start a business and to grow it.  (De Tocqueville addressed a few of these themes in his fascinating little book Memoirs on Pauperism.)

In the chapter for essay 77, De Tocqueville returned once more to a thread running through the entire book, and it is one which he will elaborate more in the concluding chapters of Volume II: a healthy political order is one in which citizens govern themselves, not only through political actions like voting, but also in a broader way that involves the exercise of those habits of life that make it possible for a community to secure those things necessary for a good life (even if they are not the point of a good life) rather than relying for that provision upon some distant and often impersonal government.

Bill Reddinger is Associate Professor of Government at Regent University in Virginia Beach, VA, where he teaches courses in political philosophy and American politics.  He directs the Lincoln Program in America’s Founding Principles, an educational initiative that offers seminars and lectures related to America’s founding principles and history for Regent University students, for teachers, and for others in southeastern Virginia.  He is author of Political Thinkers for Our Time, forthcoming from NIU Press.

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Essay 76: How Religious Belief Sometimes Diverts The Thoughts Of Americans Toward Spiritual Pleasures (Vol. 2 Pt. 2 Ch. 15)

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Guest Essayist: Zachary German

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 517 (start at chapter 15 heading) – 521 (stop at chapter 16 heading) of this edition of Democracy in America.

While generally positive, De Tocqueville’s analysis of the relationship between religion and democracy contains both complexity and tensions. He notes that religion will be shaped by a democratic society and that it must be so shaped in order to be sustainable and suitable for a democratic age. At the same time, he maintains that a democratic society should be shaped by religion in order to thrive. In Vol. 2, Pt. 2, Ch. 15 of Democracy in America, De Tocqueville outlines one sense in which he thinks that religious belief improves both the lives of democratic individuals and democratic societies. 

Just two chapters earlier, De Tocqueville describes how intensely Americans pursue material well-being. On the one hand, they are so obsessed with material goods that one would think that they must believe that their earthly existence will never come to an end. On the other hand, they are in such haste to acquire and enjoy as many of those goods as possible that it appears as though they live constantly driven by a fear of imminent death. To illustrate this characteristic of Americans, De Tocqueville remarks, “In the United States, a man carefully builds a dwelling in which to pass his declining years, and he sells it while the roof is being laid.”    

Yet De Tocqueville is struck by a routine exception to this fixation on material well-being. As he puts it in another part of Vol. 2, Americans are “people who spend every day of the week making a fortune and Sundays praying to God”. Each Sunday, one finds them engaged in religious observances, not commercial or industrial activities. They head to church rather than to the market or their place of work. They read their Bibles rather than their business reports.

De Tocqueville has an emphatically favorable judgment of this American phenomenon. That judgment is not grounded in religious beliefs regarding salvation or divine commands. However, his assessment is also notably different from common secular arguments for leisure. Today many would stress that time off from work is conducive to mental and physical health. They would highlight that it allows individuals to rest, to engage in hobbies and recreation, or to be with their families and friends. Reasoning along these lines forms the justification, for instance, for the U.S. Supreme Court upholding Sunday closing laws against a First Amendment challenge in McGowan v. Maryland (1961). It is possible to attribute a secular benefit even to the practice of attending religious services; after all, people find a meaningful source of community, or human connection, through religious membership. 

In contrast, it is important to De Tocqueville that Americans do not merely pause commercial and industrial activity on Sundays while participating in some form of community. He especially cares that, in doing so, they reinforce a foundational belief about reality, a belief in “the immortality of the soul”. On Sundays, Americans fortify their conviction that they are immortal beings, higher than brutes and more than mere matter. This conviction elevates their souls. 

De Tocqueville makes the case that the absence of such a belief in a democratic society would lead to the degradation of human beings and to materialistic pursuits characterized by “an insane ardor”. In subsequent chapters, he draws out the economic and political drawbacks of materialism. For the good of individuals and for the good of democratic societies, De Tocqueville urges leaders to make an effort to prevent materialism from taking root. He directs them to seek means of “raising up souls and keeping them turned toward Heaven”.  

Despite the importance which he assigns to this task, De Tocqueville gives a somewhat cryptic prescription for the maintenance (or rehabilitation) of “belief in an immaterial and immortal principle”. He begins with an unequivocal restatement of his commitment to a separation between church and state, before concluding the chapter with a perplexing remark. He writes, “I believe that the only efficacious means governments can use to put the dogma of the immortality of the soul in honor is to act every day as if they themselves believed it”.

In 2024, does commerce screech to a halt on any weekend day? Does the quest for material pleasures take a breather then? Do ennobling beliefs about humanity fend off the impression “that all is nothing but matter”? De Tocqueville prompts us to ask such questions, and he presses us to reflect on what we might learn today from his case for a soul-elevating democratic society. 

Zachary K. German is an assistant professor in the School of Civic and Economic Thought and Leadership at Arizona State University. His research focuses on American political and constitutional thought, along with early modern thought, on questions of statesmanship, political culture and civic character, constitutional design, civic education, and politics and religion. He teaches courses on political thought, leadership, and constitutionalism, largely but not exclusively in the American context. He also contributes to K-12 civic education efforts, including teacher workshops and summer seminars for high-school students.

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Essay 75: How In America The Taste For Physical Pleasures Is Combined With Love Of Freedom And Concern For Public Affairs (Vol. 2 Pt. 2 Ch. 14)

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Guest Essayist: Joey Barretta

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 514 – 517 of this edition of Democracy in America.

In Democracy in America, the Frenchman Alexis de Tocqueville provides a comprehensive account of the nature of democracy based on observations made while in America. He examines the qualities of the American people that enable its free society to persist, and he describes what could lead to its decline. He argues that a movement toward democracy is inevitable in a commercial society, and this is borne out in the industrial growth that enabled the foundation of America. The development of industry enabled a greater diffusion of material goods among the mass of the people. In a democracy the people rule, and the institutions of government and manners of the people must both be ordered in a way that is conducive to a free society.

In this particular chapter, De Tocqueville describes how a free society is uniquely suited to long-term prosperity. While a monarchy ruled by a king with the elevation of the few initially enables material prosperity for a small group, De Tocqueville argues it would not endure. It is free societies which continue to prosper throughout history. He concludes that freedom and prosperity are intertwined, most particularly within democratic nations.

The character of the people in a democratic regime is rooted in equality of the individual, and it is shaped by the people joining into associations with their fellow citizens. De Tocqueville famously explains that associations promote a community that enables individual freedom under limited government. In this chapter, he speaks of associations in light of material concerns. In “centuries of equality,” there is a need for associations to enable one to acquire goods. Political freedom, he argues, enables the production of wealth, and despotism is destructive to it.

Democratic people long for certain goods, and freedom will enable them to attain the “material enjoyments for which they constantly sigh.”

However, an excessive longing for material enjoyment will disturb the spirit of liberty promoted by associations. The focus on accumulating wealth can be so extreme that it will lead an individual away from caring for the society as a whole. A person who solely focuses on wealth does not have the civic spirit necessary to see beyond himself, and it makes civic engagement a chore that distracts from his selfish pursuit. The desire for material enjoyments must be ordered by the cultivation of “habits of freedom.” De Tocqueville argues that the maintenance of self-government is the principal interest of every democratic citizen, and the attachment to wealth leads one to misjudge his primary interest to be the accumulation of wealth at the expense of freedom.

There needs to be a certain disposition in the democratic citizen, and De Tocqueville believes Americans have a unique combination of seeking individual interest while actively engaging in civic affairs. The individual needs to perceive that freedom furthered in the social and political realms is most beneficial for material enjoyment in private life. De Tocqueville warns that if the mass of the people is dedicated to “private affairs” they are prone to be ruled by a few which will enable the rise of despotism. Americans have been able to avoid this, and “in that genuinely deserve to be admired.” The character of the American people lets individuals both seek material enjoyments but also remain engaged in civic activities required for the maintenance of freedom. This does not mean that Americans have no concern for material enjoyment. Rather, they are directed by their capacity of reason instead of being blindly ruled by passion alone.

Americans, De Tocqueville explains, appear to be guided primarily by selfish motivations, but their conduct reveals something more noble. He writes, “An American occupies himself with private interests as if he were alone in the world, and a moment later, he gives himself over to the public as if he had forgotten them.”  Americans see freedom as the “greatest guarantee of their well-being.” In other words, they do what De Tocqueville says is necessary for democratic people: recognize that freedom is the key to prosperity.

Joey barretta received his B.A. in Political Science and History as an Ashbrook Scholar at Ashland University. He went on to earn an M.A. and Ph.D. from the Van Andel Graduate School of Statesmanship at Hillsdale College. His academic training is in political philosophy and American political thought, and he has published widely on the political thought of Frederick Douglass.

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Essay 74: Why Americans Are So Restless In The Midst Of Their Prosperity (Vol. 2 Pt. 2 Ch. 13)

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Guest Essayist: Wilfred M. McClay

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 511 (start at chapter 13 heading) – 514 (stop at chapter 14 heading) of this edition of Democracy in America.

Alexis de Tocqueville (1805-1859) was a Frenchman, and one of the most important European social and political thinkers of the nineteenth century. Yet his most famous work was about America, which he visited for nine months in 1831, and then analyzed in his book Democracy in America (1835-40). He saw the United States as a pioneering nation moving in the front ranks of human history. In America, one could gaze upon “the image of democracy itself, of its penchants, its character, its prejudices, its passions”—and having so gazed, could perhaps take away lessons that would allow leaders in his own country to deal more intelligently and effectively with the democratic changes coming to Europe. 

He was firmly convinced that the movement toward greater social equality—which is what he meant by the word “democracy”—represented an inescapable feature of the modern age. And he was in favor of it. There would be no going back. But he also saw some downsides to democracy and insisted on pointing them out. His chapter on “Why the Americans Show Themselves so Restive in the Midst of Their Well-Being” is a perfect illustration of his position. 

The chapter revolves around De Tocqueville’s contrast between aristocratic societies and democratic societies. For De Tocqueville, an aristocratic society was one governed by inequality, with a small, privileged class at the top of the social pyramid. It was a society in which one’s social status was assigned at birth and kept for life, a status bound up in the place of one’s family. 

In the democratic society, however, matters were quite different. There was a general “spirit” of equality; the people are sovereign, and the right to vote is widely extended; hierarchies are abolished, and any legal status or privilege extended to the well-born few is abolished; rights are universal, or tending toward universality, as is literacy and access to education; families are comparatively weak and changeable, even ephemeral; there a constant pressure toward the scattering of inherited wealth, with the breaking-up of large estates and large fortunes; and a resulting tendency toward social and economic fluidity, the fading of class distinctions, leading to universal sameness. 

It would be our natural tendency, wouldn’t it, to choose the democratic society over the aristocratic one. We like the idea of individual opportunity, of going our own way. But De Tocqueville opens this chapter with a paradox that might cause us to think twice. 

In remote parts of the Old World, he observes, there were ignorant and impoverished people who were nevertheless happy and contented. But in America, where prosperity and liberty were widely enjoyed, there was unhappiness. “It seemed to me,” he says, “that a sort of cloud habitually covered [the Americans’] features; they appeared to me grave and almost sad.”

Why the difference? He has an explanation. The residents of the Old World are locked into an unchanging social structure, so one’s standing in the world is unlikely to change. 

Families remained in the same place for centuries, every man remembered his ancestors and anticipated his descendants, and strove to do his duty to both. The individual person was so enmeshed in the fabric of society that it was impossible to imagine him or her apart from it—as implausible as swimming in the air, or breathing beneath the waves. 

In democratic societies, however, it was completely different. The principle of equality reigned, such duties and fixities were lost. Aristocracy had made of all citizens a long chain that went from the peasant up to the king; democracy breaks the chain and sets each link apart. The word for the latter condition is “individualism.” 

We greatly prize individualism, don’t we? Is it possible, though, that our individualism is a source of the restlessness that De Tocqueville describes? That’s what De Tocqueville thought. The reason the isolated peasants are more content is because they accept the negative aspects of their lives, since they can’t imagine anything better would be possible for them. But the democratic souls do not accept inequality. They are ambitious, and “dream constantly of the goods they do not have.” 

But here comes the downside: “men will never find an equality that is enough for them.” And this: “When inequality is the common law of a society, the strongest inequalities do not strike the eye; when everything is nearly on a level, the least of them wound it. That is why the desire for equality always becomes more insatiable as equality is greater.” 

Which is why, he says, the Americans are restless in the midst of their prosperity. It seems that there is a price to be paid for any social system, including ours. Much of the rest of De Tocqueville’s great book is devoted to considering how we can lessen that price, and keep the pursuit of equality from crowding out all other values, including the spirit of liberty. 

Does De Tocqueville’s analysis ring true to you? Many scholars and thinkers believe that it does, even though Democracy in America was written almost two centuries ago. 

Wilfred M. McClay is Professor of History at Hillsdale College, and the author of Land of Hope: An Invitation to the Great American Story. He served for eleven years on the board of the National Endowment for the Humanities, and is currently is a member of the U.S. Commission on the Semiquincentennial, which has been charged with planning the celebration of the nation’s 250th birthday 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, and received the Bradley Prize in 2022. He is a graduate of St. John’s College (Annapolis) and received his Ph.D. in History from the Johns Hopkins University.

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Essay 73: Why Certain Americans Display An Exalted Form Of Spirituality (Vol. 2 Pt. 2 Ch. 12)

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Guest Essayist: Kevin Vance

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 510 – 511 (stop at chapter 13 heading) of this edition of Democracy in America.

De Tocqueville frequently draws attention to the ways in which American religion has conformed itself or been conformed to the habits of thinking and acting within the democratic social state. In general, one would expect American religion to support bourgeois virtues and to inoculate the people against fanaticism that would draw them too far away from the goods of this world. At the same time, a sharp-eyed observer of American religion could not help but be struck by the proliferation of small and zealous sects that constituted a contrast with the dominant religious ethos. In this chapter, De Tocqueville tries to make sense of these paradoxical phenomena.

In the preceding chapters, De Tocqueville considers the passion for material well-being, which he takes to be a general and even dominant passion among the American people. Despite the public advantages of this passion, De Tocqueville nevertheless expresses regret that it entirely absorbs Americans and distracts them from more noble or leisurely pursuits that are praiseworthy for a human being. In Chapter 12, De Tocqueville notes that the “taste for the infinite” is an instinct grounded in the “immovable foundation” of human nature. Though it is weakened, it has not been extinguished by the advent of the democratic social state. It is therefore quite understandable that as the general American population narrows its focus on material goods, some will rebel against that circumscription of human life. “There are moments of respite,” says De Tocqueville, “when their souls seem all at once to break the material bonds that restrain them and to escape impetuously toward heaven.”

If Americans are a religious people, and if religion is the first of our political institutions, why doesn’t mainstream American religion sufficiently quench this universal thirst for the infinite? In the preceding chapters, De Tocqueville shows how American religion had lowered its gaze to temporal goods. Moreover, American religion had even made peace with the dominant taste for material enjoyment. In Chapter 11, De Tocqueville points out that the industry fostered by this taste is “combined with a sort of religious morality.” While some goods are forbidden as the objects of desire, Americans’ hearts are “delivered without reserve” to those goods that are otherwise permitted by religion and morality. American religion functioned as an imprimatur as it simultaneously restrained the commercial and acquisitive spirit of the American people. It is little wonder, then, that Americans in search for the infinite might feel compelled to seek out what De Tocqueville regards as “bizarre sects” that often teach “follies.” American religion that merely fostered and channeled desires for temporal goods would have little appeal to those gazing beyond the goods of the body.

Some early American statesmen, such as John Adams, regarded the proliferation of zealous sects as a threat to republican self-government, and for that reason tolerated state alliances with moderate religion to help avert those dangers.

De Tocqueville’s treatment of this phenomenon does not evince a similar alarm. De Tocqueville is confident of the unrelenting power of the democratic social state to nudge Americans toward the practical concerns of this world. Moreover, majority opinion within America exercises a kind of tyranny over the American mind. Within the horizons of the democratic social state, it is almost inconceivable that any small enthusiastic sect would gain sufficient proponents to unsettle the habits of mind of the American people. This is due to the propensity of the greater number to focus their energies on obtaining and preserving the goods of this world. Moreover, some liberal thinkers and statesmen were worried that religious enthusiasms would deprive the people of the necessary critical judgment that they would need to act responsibly as democratic citizens. De Tocqueville, on the other hand, recognized that in America, the people generally excused religious matters from the critical personal evaluation to which they subjected political matters. In America, religion has remained entirely separate from the political order. The population has “accepted the principal dogmas of the Christian religion without examination,” which suggests that any irrationality or lack of critical judgment in the religious sphere need not affect an American’s judgment in the political sphere.

In Part I, Ch. 5 of this volume, De Tocqueville explains that religion—even absurd ones—can provide a useful limit for theoretical and political life. The absence of religion, he worried, would leave people confused and unable to act in a reasonable way and fearful to think through the great human questions. Such a people, lacking all limits on religious speculation, would be inclined to accept political servitude. In this chapter, De Tocqueville’s treatment of what he called “bizarre” sects again raises the question of how long a purely civil religion can prove useful to the democratic social state if it cannot satisfy the spiritual instinct of the people.

Kevin Vance is Director of the Center for Constitutional Liberty at Benedictine College. He received his PhD and MA in political science from the University of Notre Dame and his BA from Claremont McKenna College. His research focuses on law and religion, constitutional law, and American political thought. His scholarship has appeared in the Journal of Church and State, the Oxford Journal of Law and Religion, and the Journal of Law and Courts.

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Essay 72: “The Taste For Material Prosperity In America” & “Particular Effects Of The Love Of Physical Pleasures In Democratic Times” (Vol. 2 Pt. 2 Chs. 10-11)

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Guest Essayist: Jon Schaff

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 506 (start at chapter 10 heading) – 509 of this edition of Democracy in America.

Starting roughly in the 17th century, Europe found itself moving from an agricultural economy to one based on trade, banks, and industry. Aristocratic society consisted of a few wealthy, aristocratic landowners and the many who worked the land. In the emerging commercial society, there were various avenues of access to a comfortable living. In short, we were starting to see the rise of the middle class. Wealth went from being based on family and landownership to something that one could gain from hard work, knowledge, and thrift. 

Many people connect the rise of the middle class to the ascent of democracy. The essential notion is that if people of a non-aristocratic background could acquire wealth, which included paying taxes, they deserved some say in how government operates. Government was not the plaything of people who happened to come from the right family. Free markets and a budding commercial class promoted various democratic principles such as the rule of law, the notion of consent, the right to property, and basic liberties.

America was no different. If anything, America’s democratic ethos was more advanced than in Europe as aristocracy never really had a hold in America. We might think of Ben Franklin’s famous essay “The Way of Wealth” and his aphoristic advice regarding how to get ahead in the world.  “A penny saved is a penny earned” and “Early to bed and early to rise makes a man healthy, wealthy, and wise” put gaining material comfort at the heart of happiness. In the early 19th century Americans developed the idea of the “self-made man,” the notion that through hard work, sound habits, and frugality a person could rise from meager circumstances to relative success. The biographies of Andrew Jackson and Abraham Lincoln illustrate this theory well.

These concepts undergird De Tocqueville’s discussion of American “taste for well-being” and “the love of material enjoyments”.  As is typical of Tocqueville’s style, he makes a distinction between aristocratic and democratic times. Throughout Democracy in America, De Tocqueville notes that aristocratic times tend to be characterized by the love of virtue, an appreciation of beauty and grandeur, an elevation of mind, and building things of enduring value. Democracy, by contrast, tends to aim for what is useful. It elevates the notion of material comfort to a key virtue, to the neglect of public affairs and noble enterprises. 

In these two chapters, De Tocqueville posits that aristocrats do not generally focus on deriving pleasure from material things. Recall that what makes an aristocrat is not the possession of great wealth. The key features of aristocracy are the possession of inherited wealth, especially land, and the fact that the aristocrat is at leisure, i.e., does not work for a living. He uses his leisure to pursue goals more elevated than mere money making. Businessmen may have great wealth, more even than some of the nobility, without being members of the aristocracy.

However, De Tocqueville notes that some aristocrats do find immoderate pleasure in worldly goods. In his other major work, The Ancien Régime and the Revolution, his meditation on the French Revolution, De Tocqueville criticizes the pre-revolutionary French aristocracy. He argues that French nobility had all the trappings of aristocracy, namely wealth and privilege, without serving a public function. They were merely decadent. The resentment of the people toward such an aristocracy is one of the causes of the Revolution, De Tocqueville claims. In these two chapters, one encounters De Tocqueville’s description of such a corrupt aristocracy. 

In these chapters De Tocqueville is a friendly critic of democracy. He believes democratic citizens are too materialistic. Because fortune is uncertain in America, regularly gained and lost, everyone thinks more about material things. The wealthy know their riches may be evanescent while the poor have sufficient examples to believe that wealth just might be within their grasp if they work hard enough and get a little lucky. The rigid class structure of aristocracy causes rich and poor alike to think less about money, as the aristocracy knows it cannot lose it and the poor know they cannot gain it. In contrast, the fluid nature of democratic society causes nearly everyone to think about money and well-being, i.e., acquiring relative comfort. 

The concern for well-being amongst democrats undermines virtue. Unlike virtue, De Tocqueville argues, well-being can be purchased. This makes well-being attractive to democratic people; anyone can make enough money to be comfortable while only some are able to be truly virtuous. Money-making is more democratic than moral excellence. Further, the love of comfort may render democratic people complacent. If they have material well-being, they may forget about defending their liberty. As long as I can afford various pleasures, why do I care if I have the right to vote or free speech? A despot may take advantage of a lack of virtue and the peoples’ lack of vigilance to subvert democracy. 

Jon D. Schaff is Professor of Political Science at Northern State University in Aberdeen, South Dakota, where he has taught since 2001. He teaches classes in American political thought, American political institutions, as well as politics in literature and film. He is author of multiple articles and book chapters as well as two books: Abraham Lincoln and the Limits of Liberal Democracy and Age of Anxiety: Meaning, Identity, and Politics in 21st Century Literature and Film (co-authored with Anthony Wachs). He co-edited Humanitas History of America II: From Revolution to Reconstruction, 2 Vols for Classical Academic Press.

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Essay 71: How Americans Apply The Doctrine Of Self-Interest Properly Understood To Religious Matters (Vol. 2 Pt. 2 Ch. 9)

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Guest Essayist: Kevin Vance

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 504 – 506 (stop at chapter 10 heading) of this edition of Democracy in America.

De Tocqueville has already explained the danger of individualism in the democratic social state as well as the likelihood that these dangers are mitigated in America by the doctrine of self-interest well understood. Why does De Tocqueville now apply the doctrine of self-interest well understood to matters of religion? He has already emphasized the importance of religion in America, and the reader can easily begin to imagine the potential utility of religion in further protecting the people from individualism. De Tocqueville’s framing of this chapter suggests that his contemporaries often regarded religion as a support for duty, which they pitted against utility or interest, so it may have been important to show how religion and self-interest are harmonized. De Tocqueville also raises the possibility that a conventional understanding of self-interest sans religion would fail to sufficiently remind those tempted to timidity or motivated only by self-preservation that death is not the worst outcome.

In the first part of the chapter, De Tocqueville reconciles the doctrine of self-interest to religion, or, rather, he shows how Christianity has long reconciled itself to the doctrine as a means to bring the mass of people into its ranks. For the adherent, according to De Tocqueville, it would satisfy self-interest well understood to persevere in belief despite doubts, as “he will judge that it is wise to risk some of the goods of this world to preserve his rights to the immense inheritance that he has been promised in the other.”

In the second part of the chapter, De Tocqueville considers how Americans’ practice of religion is actually guided by the doctrine of self-interest as they calculate that the risks of eternal punishment outweigh the “hindrances” imposed by their religion. They are not ashamed to admit as much. Although the American believer might be more inclined than a believer in an aristocratic age to tie religion to a calculated risk analysis rather than practice religion out of “love of God,” that is not where the most striking difference is to be found between Americans and the aristocratic age’s pursuit of religion. What is especially unique about American religion and the doctrine of self-interest well understood is that American preachers often situate the “interest” in this world rather than the next. According to De Tocqueville, they “constantly come back to earth and only with great trouble can they take their eyes off it.” Instead of focusing on a pure love of God, or even an eternal reward that could satisfy self-interest well understood, American preachers emphasize the temporal benefits of religion to supporting freedom and public order.

De Tocqueville had earlier noted this propensity of American preachers to speak “so often of the goods of this world” as well as the “invincible” distaste of Americans for the supernatural in their philosophic method. While friendliness to religion was a notable attribute of the American people during De Tocqueville’s visits, the religious practice that De Tocqueville encountered had largely been tamed to emphasize worldly goods either as a direct cause of the democratic social state or as a defensive measure to maintain relevance in the democratic age. De Tocqueville’s treatment of religion in this chapter again emphasizes the malleability of American religion to the “intellectual empire” of the majority in a democracy.

Given that within this chapter De Tocqueville mentions the utility of religion in helping citizens acquire virtue by offering a horizon beyond death, De Tocqueville’s decision to highlight once again the adaptability and worldliness of American religion raises at least one interesting problem. If religion is continually pulled back down to earth in America, does it eventually lose its efficacy at pointing Americans beyond mere survival, which has many temporal benefits in De Tocqueville’s account? Does it therefore, in a strange twist, lose its appeal to those Americans most interested in its benefits in this life? The religious practices which most consistently go with the grain of the democratic social state seems to be the kind that would continually leave unchallenged the prejudice of Americans to shy away from the supernatural and look only toward the practical, thus depriving it of what might actually be most useful in mitigating the negative effects of individualism and buttressing a Tocquevillian understanding of freedom.

Kevin Vance is Director of the Center for Constitutional Liberty at Benedictine College. He received his PhD and MA in political science from the University of Notre Dame and his BA from Claremont McKenna College. His research focuses on law and religion, constitutional law, and American political thought. His scholarship has appeared in the Journal of Church and State, the Oxford Journal of Law and Religion, and the Journal of Law and Courts.

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Anne Louise “Nancy” White

Anne Louise White, Aunt of Constituting America Supporter, Nancy Almasi

Constituting America’s dear friend, Nancy Almasi, has honored her beloved aunt, Anne Slater White, by making a contribution to Constituting America in her aunt’s memory. Nancy told us, “she often shared her love of American History with me.”

Anne Louise White, known fondly as Nancy, passed away on August 5, 2024, in Alexandria, VA, at the age of 91. Born on June 24, 1933, in Washington, PA, Nancy led a rich and fulfilling life marked by her dedication to community service and her entrepreneurial spirit.

Nancy graduated from Mount de Chantal Visitation Academy and went on to earn a Bachelor of Arts from Carlow College in 1955, followed by a Master of Social Work from Marywood University. Her career was characterized by a profound commitment to social work, where she began as a social worker before advancing to become the Director of the Agency on Aging. Nancy’s entrepreneurial ventures included owning and managing several businesses such as Macadoo’s, Archie’s Restaurant, and The Toy Store of Bethlehem. She also excelled as a top sales associate in China and Glass at Hecht’s Department Stores.

Beyond her professional life, Nancy was deeply involved in her community and was a regular attendee at the Church of the Little Flower in Chevy Chase, MD. Her hobbies included watching the Pittsburgh Steelers, playing golf and tennis, reading a wide range of books-from mystery and romance novels to biographies-and engaging in politics. She also enjoyed crossword puzzles and bridge.

Nancy was preceded in death by her husband, Archibald White, and her sisters, Joan Slater Arth, Sister Mary Reginia Slater, and Elisabeth Slater Albrecht. She is survived by her son, Roy White, and daughter-in-law, Kim White, both of Murrieta, CA; grandsons, Dirk White of Austin, TX, and Liam White of Murrieta, CA; and niece, Nancy Almasi of Alexandria, VA.

Services to honor Nancy’s life will include a Funeral Mass at St. Louis Catholic Church, 2907 Popkins Lane, Alexandria, Virginia on Friday, September 27th at 11AM followed by a reception in the parish’s Little Way Cafe. She will be buried on Saturday, September 28th at Immaculate Conception Catholic Cemetery, 119 West Chestnut Street, Washington, PA.

In lieu of flowers, contributions may be made to the Sisters of the Visitation Retirement Fund, c/o Georgetown Visitation Monastery, 1500 35th Street NW, Washington, DC 20007, Attn: Mary Seagal, in memory of Nancy Slater White, class of 1951. Nancy’s warmth, humor, and kindness will be deeply missed by all who knew her.

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Larry Howlett

We are sad to announce the passing of our dear friend, and first accountant, Larry Howlett. We met Larry in 2009, and Larry was instrumental in filing our initial Constituting America paperwork in 2010 with the IRS, as well as helping us draft our bylaws and articles of incorporation, file our first 990, and submit our first round of state filings. It is safe to say that without Larry, we might not have ever taken Constituting America from an idea, to a reality.

But Larry was more than an accountant to us. He was a friend who radiated Christ’s love for all. Larry referred to his business as his “accounting ministry,” and if you called Larry on any matter, you can be assured he would either begin or end your call with prayer.

Larry drew us all closer to God and was a spiritual role model for all with whom he worked.

More About Our Friend, Larry Howlett

Larry Caldwell Howlett of Bowling Green, KY died at his home on August 31, 2024. Larry was born on November 19, 1942 in Auburn, KY, to William Caldwell and Nellie Rufine (McLellan) Howlett. He attended Auburn public schools until transferring to Columbia Military Academy in Columbia, TN, where he graduated high school. After a year at the University of Kentucky, Larry transferred to Western Kentucky State College for the remainder of his college career. He was a part of the inaugural class of the college’s accounting program and graduated in 1964. After a few years of working in his family’s leather tanning business, Larry began work for the IRS, focusing on tax-exempt organizations. He retired after a thirty-year career with the IRS and founded Larry C. Howlett CPA, a firm dedicated to helping exempt organizations. He was involved in many local and national organizations because of this ministry.

Larry’s love for the Lord was exemplified in everything he did. He may not have been large in stature, but he was definitely a giant in the faith. He offered “Greetings” to all he met and was kind to all. He served in several churches as an elder or deacon, taught Sunday school, volunteered in many ministries, and was generous with his resources. His final church membership was at Eastwood Baptist Church.

Together with his bride of nearly 59 years, Larry raised two daughters. He was Papa to five grandchildren and two great-grandsons. He loved his family well and will be greatly missed by them and by so many friends.

Larry was preceded in death by his parents, two brothers, Bill and Joe Howlett, and one precious grandson, Robert Coughlin. He is survived by his wife, Edessa Howlett, daughters Tina (Jeff) Carter and Laura (Kent) Coughlin; grandchildren Will Parker (Megan) Carter, John Carter, Addison (Jake) Cooley, and Cooper Coughlin; and great-grandsons, Lincoln and Roman Carter.

Visitation with the family will be held Friday, September 6, from 5-7 p.m. and again at 10:00 a.m. Saturday, September 7, at Eastwood Baptist Church. A service will begin at 11:00, followed by burial in Auburn, KY. Anyone associated with a ministry or not-for-profit that Larry helped to organize is encouraged to wear a T-shirt, button, or anything to associate themselves with that organization.

In lieu of flowers, Larry requested that donations be made to Hope House, HOTEL Inc., Curbside, and Hospice of Southern Kentucky.

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David Thompson


David W. Thompson
Grandson of Ace Borger, Founder of Borger, Texas

David was one of Constituting America’s earliest and most enthusiastic and generous supporters. In addition to his own personal financial support of our Constitution education  programs, David organized our first event for us in Dallas, in April of 2010, our founding year. He assisted us in writing our first business plan and he enthusiastically introduced us to many in his network who went on to support our programs.

As our CEO Cathy Gillespie’s dad, Don Hay’s, best friend, David will always be “Uncle David,” to Cathy, pictured here with her in 1962.

More about our friend David Thompson
David Warren Thompson passed away peacefully in Dallas, Texas, on October 13, 2024, at the age of 89.

Born in Borger, Texas, on September 22, 1935, to Fritz and Helen Thompson, he was immediately a part of history as the grandson of Ace Borger, the founder of the town in which he resided for more than 50 years. David made and grew lifelong friendships that withstood the test of time. Nothing was more fun for him than recounting stories about the shenanigans he and his best friends shared, including dyeing a rival football team’s jerseys, stealing and burying a rival fraternity’s coveted bell, and getting away with taking an exam answer key in college…because he was knocked out while running through a tunnel while everyone else was apprehended at the other end. We will never forget his boisterous laughter, or many of the family’s wide eyes when hearing some of his stories for the first time.

If you asked David, he’d say his greatest accomplishments are his two sons Mark and Matt, and his grandson Ace, who were the joy and light of his life. His friends and family meant everything to him, and David always went out of his way to meet up with an old friend if in the same area even for a short while, and prioritized staying in communication with his best buddies and colleagues. He often mailed his sons articles he thought they would enjoy, the most important parts carefully annotated and highlighted so they wouldn’t be missed, which the boys often joked about. For friends and family reading this, know how loved and treasured you were by David.

David also loved his alma mater Texas Tech University and was an avid supporter of Red Raider athletics. His love of the university never waivered, no matter the score, and rarely was a football, basketball or baseball game missed if he could help it. While at Tech, David was a member of Phi Gamma Delta (Fiji) Fraternity and the Saddle Tramps men’s booster club, and served as Tech’s student body president. After graduation, and getting chastised by Fritz for spending his entire young adult savings on a Rolex watch, David began a long career in banking and finance, serving as vice president of Panhandle Bank & Trust in Borger, working in Savings & Loans, and finally as an investment advisor at First Dallas Securities, where he worked until his retirement.

David was always faithful to God, but forged a closer relationship with Him in recent years through his Sunday School Group at church. We take comfort knowing the big man Himself was there to greet him with a hearty “COME IN THIS HOUSE!” and a slap on the back as he always did for friends and family at his doorstep.

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Essay 70: How Americans Counteract Individualism By The Doctrine Of Self-Interest Properly Understood (Vol. 2 Pt. 2 Ch. 8)

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Guest Essayist: John D. Wilsey

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 500 (start at chapter 8 heading) – 503 of this edition of Democracy in America.

 

Virtue, Individualism, and Self Interest Rightly Understood

Much could be said about the prescience of Alexis De Tocqueville, reflected especially in his classic work, Democracy in America. De Tocqueville’s two volume work is not called the most insightful work on American political culture and institutions ever written by a foreigner for nothing. One of the key reasons why historians and political theorists have placed De Tocqueville’s Democracy in such a lofty position is that the book is more than just political science. De Tocqueville based his political insights on human nature itself.

De Tocqueville saw human nature as complex, yet as being broadly two-fold. On the one hand, persons were self-centered, prone to concentrating and abusing power, and greedy for material wealth. On the other hand, persons yearned for freedom, were disposed to direct their thoughts and actions toward virtue and the eternal world, innately religious, and communal. Persons were always looking to secure the common good. 

Thus, De Tocqueville saw a conflict in human nature between the tendency toward individualism (which fed greed, isolation, and despotism) and the longing for virtue (which fed public spirit, religious faith, and freedom). 

The founders of our republic are well-known for insisting on the indispensability of virtue for the success of a republic. Republics cannot survive if the citizenry lacks virtue, that is, moderation, courage, justice, and wisdom. When De Tocqueville came to America in 1831, he did not consider Americans a virtuous people. However, he did think they had mastered the art of channeling the vice of selfishness in a virtuous direction. He thus described Americans as having l’interêt bien entendu, or self interest rightly understood. 

De Tocqueville saw that Americans had a strong tendency toward individualism—selfishness and greed that isolated citizens from their communities resulting in the concentration of power in government. Such a concentration of power led to majorities who would then be in position to tyrannize minorities, limiting their freedom of speech and exercising a form of tyranny he called democratic despotism. Nevertheless, Americans were able to counteract that individualistic tendency by securing public goods by means of advancing their private interests. While Americans were not necessarily virtuous, they did carefully consider how they could make small sacrifices that would benefit themselves as well as the rest of their communities.

Consider an example from our own day. When we make charitable contributions, we write the combined value of our yearly contributions off on our income taxes. Thus, we as citizens are encouraged to give to charitable causes generously because we receive something of great benefit. In this way, both public and private goods are obtained. Writing off your charitable contributions each year when you prepare your taxes is an ordinary example of self-interest rightly understood.  As De Tocqueville wrote, “American moralists do not claim that one must sacrifice oneself because it is great to do it; but they say boldly that such sacrifices are as necessary to the one who imposes them on himself as the one who profits from them” 

The effect of self interest rightly understood, as De Tocqueville saw it, was that it “turns personal interest against itself” thereby mitigating the power of individualistic tendencies. American citizens were not paragons of virtue, but in the practical, ordinary behavior in public and private, they achieved a balance between public and private interests. The power of self interest rightly understood could be seen in how citizens nurtured their local communities. De Tocqueville described such nurturing as public spirit. With public spirit, citizens understood that they had a personal stake in the success or failure of their localities. If their town flourished, the individual citizens would flourish; if their town deteriorated, then citizens would also find their fortunes sinking with their town. 

Since Americans enjoyed religious freedom, religion thrived in America as in no other country De Tocqueville had ever seen. Self interest rightly understood was a product of religion. Christianity taught that love for God and love for others brought great rewards, and Americans were religious (at least in part) because they had their eye on eternity. Religion formed the basis for the mores, what De Tocqueville thought of as the moral character of the nation. Religion was essential to freedom, and self interest rightly understood was part of Americans’ understanding of the practical meaning of religion.

Americans associated together for a wide variety of causes, some national and some local. In associating together, Americans avoided isolation and selfishness, but they got together not merely in the name of the public good. Citizens associating together knew that they received benefits also, so in advancing a public cause, they found their freedoms secured against any threat from democratic despotism.

Self interest rightly understood plays a key role in a society that is based, not on hereditary privilege, but on basic human equality. As Americans, we can still find ways to balance public and private interests to protect our freedom.

John D. Wilsey is Professor of Church History and Philosophy and Chair of the Department of Church History at The Southern Baptist Theological Seminary. He is also a Senior Fellow at the Center for Religion, Culture, and Democracy, an initiative of First Liberty Institute.
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Essay 69: Connections Between Civil And Political Associations (Vol. 2 Pt. 2 Ch. 7)

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Guest Essayist: Robert John Burton

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 496 – 500 (stop at chapter 8 heading) of this edition of Democracy in America.

Imagine living in a community with the following problems: the senior living center needs $1 million for updates, Main Street needs to be revitalized, and debates need to be organized to elect a new mayor. Now imagine a community where these problems are solved, not by government, but by the voluntary association of citizens: the chamber of commerce organizes local business owners to invest in the senior living center, churches of various denominations hold a day of service to revitalize Main Street, and delegates from both political parties form a debate commission.

According to De Tocqueville, communities like this are not only good because they may be effective at addressing political and civic problems (in truth, one can imagine that such “free labor” comes in various degrees of quality). Far more important is that the citizens in such communities are, through association with their fellows, developing the skills and habits necessary for democracies to remain happy, prosperous, and free.

In considering chapter 7, it may be helpful to step back and recall one of the major questions De Tocqueville is asking and the thesis he proposes in response: Question 1: When all citizens are free and equal, how do they learn to self-govern in exercising liberty, putting aside their own good for the common good?

Thesis 1: Through governing and associating directing with their fellows, democratic citizens both a) see the effects of exercising their liberty on others and b) develop the skills and habits (or virtues) that free democratic societies require. Chapters 1-7 of the current section constituting the evidence for De Tocqueville’s thesis. In Chapters 1-4, De Tocqueville has warned his readers regarding the danger of individualism: self-absorbed citizens focus on their own good and are isolated and weak. If unchecked, individualism increases the relative strength and opportunities of would-be despots. In Chapters 4 and 5, De Tocqueville proposed voluntary associations as a remedy to the problem of individualism because associations draw citizens outside themselves and into community with others; in doing so, citizens are also empowered politically. 

Here in Chapter 7, De Tocqueville continues his evaluation of associations as an antidote to individualism and a bulwark against despotism by addressing the relationship between political associations on the one hand, and the civic associations on the other. In particular, De Tocqueville will argue that civic associations and political associations have an interdependent relationship: as citizens associate to solve local, common problems, they are (perhaps, unwittingly) developing the skills and habits for addressing great political problems in the future.

Conversely, the character of political associations is such that they are peculiarly situated to “develop” and “perfect” civic associations (496). While citizens may “fancy” themselves independent and self-sufficient in civil life, they must see that political associations are necessary for getting things done in politics. Individually, citizens are simply too weak; it takes political associations filled with many individuals to accomplish political aims. Thus, political associations both foster “[a] desire to unite” and teach “the art of doing it.” When practiced, they develop the “habit of association.”

Seen in this light, a principal good of political associations is that, because they are more immediately or obviously necessary in a democracy, they are the most natural first exposure of democratic citizens to the skills and habits of associational life: an association draws “a multitude of individuals outside themselves at the same time… [and] brings them together.” These relationships then serve as catalysts for future associations: “They meet each other once and learn to find each other always”.

Finally, underlying De Tocqueville’s discussion in Chapter 7 is an important second-order question about possibilities and limits of freedom of association: Question 2: Can the freedom to associate be permitted in some cases, such as economic endeavors, while being prohibited in others, such as political ones, without losing “all the goods” that associational life can offer?  

[Footnote: In applying this to our world in the first quarter of the 21 st Century, one cannot help but think of the People’s Republic of China, where the Communist Party has sought to do just this. Despite the Chinese Constitution guaranteeing that “Citizens… shall enjoy freedom of… association,” the Party has, in practice, encouraged some economic associations while prohibiting political ones that do not toe the party line.” According to De Tocqueville, civic associational life will not thrive in China until political associations are permitted.]

Thesis 2: Political associations and civic associations are interdependent, and limiting some associations, such as political ones, will have a detrimental chilling effect on associational life and the development of the civic habits they engender.

While the prospect of limiting the freedom of association may seem foreign, even reprehensible to us, we must recall that even in contemporary America we see association as a right with proper limits: associating for criminal purposes, such as a gang or terrorist organization, is clearly beyond the pale. In Germany today, neo-Nazi political parties are still banned. How much more may De Tocqueville, situated as he is in the aftermath of the French Revolutions of 1789 and 1830 and at the cusp of further political unrest in 1848, should consider the deleterious necessity of imposing some restrictions on freedom of association.

Yet despite his circumstances, De Tocqueville’s response is stark. While extreme circumstances may necessitate limiting some political associations, it comes at a cost: less political associations, less civic associations, and less virtues.

 

Robert J. Burton is the Tocqueville Assistant Professor of Civic Thought and Leadership within the Department of History and Political Science and director of the Civic Thought and Leadership Initiative (CTLI) within UVU’s Center for Constitutional Studies.

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Essay 68: Connection Between Associations And Newspapers (Vol. 2 Pt. 2 Ch. 6)

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Guest Essayist: John Bicknell

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 493-495 of this edition of Democracy in America.

Modern readers who turn to any number of media options other than newspapers might find De Tocqueville’s focus on print to be archaic. But his thesis remains valid today when applied to those alternative forms of news and information gathering.

“Only a newspaper can come to deposit the same thought in a thousand minds at the same moment,” he wrote in the 1830s.

He wrote at the very moment when newspapers were beginning to boom, and just before the revolution in communication and transportation that accompanied the invention of the telegraph and the spread of railroads.

De Tocqueville tied the importance of newspapers in developing and fostering associations to his work’s main focus, the centrality of civil society to American culture.

Where groups of ordinary but active citizens matter more than elites, their ability to communicate with each other – in dependable forums with regular publication and an agreed upon idiom – was essential.

For him, this was not simply a matter of politics – of being a critical voice in defending the freedoms guaranteed by the Constitution. Newspapers, De Tocqueville asserted, “maintain civilization.”

In the classic construction, newspapers have never been very good at telling people what to think, but have been quite successful in telling people what to think about. “If there were no newspapers,” he wrote, “there would almost never be common action.”

In the 1830s – and, indeed, until the birth of the Yellow Press in the latter half of the 19th century — newspapers were typically party organs.

Again, De Tocqueville was writing at an opportune time, just as the Second Party System featuring the Jacksonian Democrats and the Whigs was forming. Newspapers chose sides and reported the news from the point of view of their sponsor party. (One could argue that we have come full circle on that account, with blatantly partisan media choosing sides rather than straining to maintain objectivity.)

What differentiated the United States from the aristocratic countries of Europe was the level of participation in public affairs by the common man. “The principal citizens who live in an aristocratic country perceive each other from afar,” he wrote, “and if they want to unite their forces, they move toward one another carrying a long a multitude in their train.”

Not so in America. Common people, “all being very small and lost in the crowd,” do not all know or know of each other as the elites usually do. They have to seek each other out. The avenue for doing so was the newspaper.

Today, that purpose is often better served by social media than by newspapers or television news. But the process described by De Tocqueville almost 200 years ago remains much the same, even as the medium has changed.

“Up comes a newspaper that exposes to their view the sentiment or the idea that had been presented to each of them simultaneously but separately,” he wrote. “All are immediately directed toward that light, and those wandering spirits who had long sought each other in the shadows finally meet each other and unite.” It is perhaps a romanticized view of X, Facebook, or TikTok to think of users as wandering spirits seeking each other in the shadows before finally uniting. But in essence, that’s what’s happening, on a much grander scale, just as it did with party-affiliated newspapers in the 1830s.

And scale matters.

“In democratic nations… it is always necessary that those associating must be very numerous in order that the association may have some power” De Toccqueville wrote.

When historians write about the “revolution” in communication and transportation, they are not overstating the case. Until the 1840s, time and distance restricted the ability of Americans to travel and communicate quickly with anyone more than a few dozen miles away.

The invention of the telegraph in 1844 and the rapid expansion of railroads – track mileage soared from 1,000 miles in 1835 to 3,000 miles in 1840 to 30,000 miles by 1860 – altered the landscape in ways de Tocqueville and few of his contemporaries could imagine.

The telegraph spread news almost instantaneously. Railroads carried ever more newspapers – from 900 in 1830 to 3,000 in 1860 – into every corner of the country. Suddenly what happened in New York or Washington could be read about within days in virtually every small town east of the Mississippi.

This resulted in a better-informed populace and provided greater opportunities for like-minded citizens to communicate and organize.

But it also began the process of nationalizing the media, a trend that continues today. The concentration of information resources in Washington and New York divorced large segments of the population from the unifying spirit of mass media, creating the need for a social media that gathers De Tocqueville’s “wandering spirits” in search of each other.

John Bicknell was a journalist for 30 years, as a reporter, editor, columnist, and opinion writer in Florida and Washington, D.C. He is the author of three books – America 1844: Religious Fervor, Westward Expansion and the Presidential Election That Transformed the Nation, Lincoln’s Pathfinder: John C. Fremont and the Violent Election of 1856, and The Pathfinder and the President: John C. Fremont, Abraham Lincoln, and the Battle for Emancipation –and was a senior editor of the 2016, 2018, 2020, and 2022 editions of The Almanac of America Politics.

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Essay 67: The Use Americans Make For Public Associations In Civil Life (Vol. 2 Pt. 2 Ch. 5)

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Guest Essayist: Robert E. Wright

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 489 – 492 of this edition of Democracy in America.

This is the part where De Tocqueville famously argued that Americans of all types voluntarily associated to carry on “commercial and industrial” enterprises and also a “thousand” other types of endeavors “religious, moral, grave, futile, very general and very particular, immense and very small.” Over twenty years ago, I set out to put quantitative bones on his insight and concluded that he did not exaggerate.

A decade ago, I published in Corporation Nation detailed data regarding the formation of for-profit corporations in each of the U.S. states, territories, and District of Columbia from the formation of the nation until the outbreak of the Civil War. The “commercial and industrial” enterprises given legal life by special act of incorporation numbered over 23,000 and included banks, bridges, canals, ditch drainage companies, insurers, lumber companies, manufacturers, mining companies, railroads, telegraphs, tunnels, and turnpikes. Many thousands more chartered under general incorporation laws but could not be counted as comprehensively due to records destruction and bureaucratic barriers to access in states like New York and Michigan.

Last year, I published in Liberty Lost detailed data regarding the formation of nonprofit corporations in each of the U.S. states, territories, and District of Columbia from the formation of the nation until the outbreak of the Civil War. Those “religious, moral, grave” organizations given legal life by special act of incorporation numbered over 14,000 and included abolition societies, asylums of various types, charities, churches, fraternal, maternal, and sororal organizations, lyceums, militias, missionary societies, museums, musical institutions, schools of many types, and various social reform movements from socialist communes to temperance societies, among many other endeavors. Many thousands of additional associations chartered under general incorporation laws but, as with for-profit corporations, extant records proved too costly to access, fragmentary, and scattered to review as systematically as the special charters printed in state statute books.

Moreover, only the largest organizations obtained formal charters. Many other voluntary associations, from for-profit partnerships to nonprofit social clubs, formed by means of personal agreements, trusts, or informal articles of association without the imprimatur of any district, state, or territorial government. Many general references to them, in addition to De Tocqueville’s, point to their existence but even when every extant source, including every letter and diary entry, is machine readable, the names and purposes of many of America’s “very small” early voluntary associations will remain forever hidden from our view.

What those voluntary associations did for America, however, endured long after the organizations themselves disbanded, with results globally palpable. America came to be seen as a “free country” because it relied largely on voluntary efforts. As De Tocqueville argues in this section, Americans learned to cooperate without coercion, following the lead not of government officials, as in France, or rich aristocrats, as in Britain, but of anyone with commitment, verve, and a good idea or two about how to improve society and the people composing it.

De Tocqueville was also quite right to note that “Americans of all ages, all conditions” involved themselves in voluntary associations. Although men of European ancestry dominated the leadership of for-profit corporations, women were often shareholders and free blacks were not excluded from share ownership either. Moreover, women and free blacks often chartered their own nonprofit organizations. Some have been written about, but I discovered hundreds of others neglected by historians more interested in making politically motivated gross generalizations than in studying what America was once really like, not a perfect meritocracy but also not a place where social or commercial innovation was suffered to be stymied by class, gender, or government strictures.

De Tocqueville ends this part with the warning that civilization itself requires perfection of “the art of associating … in the same ratio as equality of conditions increases.” That prediction led me to call my book on nonprofits Liberty Lost because it seems that as Americans push for greater “equality of conditions” today, they look too much to the government for it, and not enough to voluntary association. The diminution of voluntarism portends a cultural communism in which the government mishandles social policies as poorly as it commands economies. As De Tocqueville put it, “a government can no more suffice on its own to maintain and renew the circulation of sentiments and ideas in a great people than to conduct all its industrial undertakings.”

The billions currently spent on politicking to control the government, De Tocqueville thus suggests, might better be spent directly ameliorating undesirable social conditions, not via grandiose top-down “programs” and “plans” designed to garner votes, but by means of grassroots organizations led by able volunteers with intimate knowledge of local conditions and needs.

Robert E. Wright is a lecturer in economics at Central Michigan University. He previously taught economics at the University of Virginia, New York University, and Augustana University. He is the (co)author of 25 books, including, most recently, FDR’s Long New Deal: A Public Choice Perspective (Palgrave, 2024) and Liberty Lost: The Rise and Demise of Voluntary Association in America Since Its Founding (AIER, 2023)

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Essay 66: How Americans Combat The Effects Of Individualism By Free Institutions (Vol. 2 Pt. 2 Ch. 4)

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Guest Essayist: Benjamin Slomski

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 485 (start at Chapter 4 heading – 488 of this edition of Democracy in America.

De Tocqueville continues his discussion of the effects of equality. The great vice promoted by equality is individualism, the idea that one can withdraw from society and only tend to himself. Equality, when misunderstood, can make people think that they have no need of each other. De Tocqueville is offering a friendly warning so that democracy can be made to work. In this chapter, he points to an answer to the challenges posed by the doctrine of equality. It turns out that Americans have found a very American solution to a very American problem.

The danger is that individualism, the vice bred by equality, is the lifeblood of despotism. Individualism allows despotism to thrive because isolated individuals do not care what the government does as long as they can remain isolated. Despotism asks people to abstain from public life. The natural meaning of words becomes inverted in a despotism. The good citizen keeps to himself while bad citizens want to work together for the common good. De Tocqueville is not necessarily speaking of the classic despotism of a cruel tyrant, but is foreshadowing the possibility of a new, “soft” despotism that can develop in democracies. Democratic despotism is less obvious but more dangerous as all it requires is for citizens to ignore public affairs.

De Tocqueville sees an answer to curb individualism and impede despotism in the American practice of free institutions. America’s free elections force individuals to look beyond themselves and to the concerns of their community. Once people realize that there are public affairs that can only be handled on the community level, they learn that they are not as independent as they thought. De Tocqueville describes the change in the human soul that results from free institutions: “Several of the passions that chill and divide hearts are then obliged to withdraw to the bottom of the soul and hide there. Haughtiness dissimilates; contempt does not dare come to light. Selfishness is afraid of itself.”

America’s free institutions force individuals to care about the community because they have free elections. The most ambitious individuals who aspire to public office realize they must depend upon their fellow citizens for support. The virtue of free elections leads De Tocqueville to declare that “Americans have combated the individualism to which equality gives birth with freedom, and they have defeated it.” It is not enough to have free elections on the national level. America’s founders knew that it was insufficient to have national representation but instead created a political need in every part of the nation for citizens to work together and depend on each other. De Tocqueville writes that “[t]he general affairs of a country occupy only the principal citizens.” These principal citizens, most obviously the representatives in Congress, only meet occasionally and struggle to form communal bonds. National affairs are too distant and abstract for the normal citizen to worry about. The local affairs of a particular place, however, concern the people who live there and lead them to know each other.

People are forced to care about local affairs because it directly impacts their own interests:
Only with difficulty does one draw a man out of himself to interest him in the destiny of the whole state, because he understands poorly the influence that the destiny of the state can exert on his lot. But should it be necessary to pass a road through his property, he will see at first glance that he has come across a relation between this small public affair and his greatest private affairs …
Local affairs have an unavoidable effect on one’s life and livelihood. The pursuit of one’s interest on the local level brings people together in a community: “Local freedoms, which make many citizens put value on the affection of their neighbors and those close to them, therefore constantly bring men closer to one another, despite the instincts that separate them, and force them to aid each other.” Personal interests lead individuals to pay attention to their neighbors and eventually cause them to care about their community.

De Tocqueville describes a process where self-interest leads people to get involved in their community, ultimately overcoming individualism and leading citizens to transcend their self-interest to make real sacrifices: “One is occupied with the general interest at first by necessity and then by choice; what was calculation becomes instinct; and by dint of working for the good of one’s fellow citizens, one finally picks up the habit and taste of serving them.” For De Tocqueville, “[i]t is not the elected magistrate who makes American democracy prosper; but it prospers because the magistrate is elective.” Local elections drive Americans out of their homes and into their community. The necessity of electing offices guards against despotism by causing Americans to see their place within a larger community.

Benjamin Slomski is an Assistant Professor of Political Science and Campus Pre-Law Advisor at Purdue University Fort Wayne. He earned his PhD from Baylor University and his teaching and research focus on American political thought, constitutional law, and political institutions. He previously taught at Ashland University, Tarleton State University, and Baylor University.

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Essay 65: How Individualism Is Greater At The End Of A Democratic Revolution Than Any Other Period (Vol. 2 Pt. 2 Ch. 3)

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Guest Essayist: Jack Barlow

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 484 (start at Chapter 3 heading – 485 (stop at Chapter 4 heading) of this edition of Democracy in America.

De Tocqueville turns his sights to France in the third chapter. In this discussion, he notes that Americans had “the great advantage” of “being born equal instead of becoming so.” Because of this advantage, he thinks, the U.S. was able to escape some of the childhood diseases of the democratic condition. In particular, the American institutions that help to check the results of individualism are more likely to be successful than those in Europe.

Yet this chapter is not really written for or about Americans. It gives us an important clue, however, to the political science and political psychology that De Tocqueville is describing in the book. Classical political philosophy taught that each form of government – monarchy, aristocracy, and so on – created a distinct psychology in the citizens. The classical ideal was an aristocracy composed of liberally educated, moderate gentlemen who provided the solid base of virtuous citizens. In the middle ages, the ideal was the beneficent prince. De Tocqueville (along with J.S. Mill and Ralph Waldo Emerson, among many others) thought that the changes created by “equality of conditions” demanded a new psychology. “Individualism” is a key finding of this new psychology. The democratic citizen is hard working, practical, and concerned with the well being of himself and his family, but he lacks the concern for others born of aristocracy.

In Europe, the aristocracy remains. But what to do with them? They are not truly welcome in the new society or comfortable in it. How does one move from a society where status is fixed at birth, and where classes are rigidly distinct, to a society where status is earned and classes are fluid? America never had to make the transition, so it provides a good case study of Europe’s destiny.

It came as no surprise to De Tocqueville that American literature often featured stories where people re-invent themselves. Examples would come to include Emerson’s Essays, Whitman’s poetry, or Twain’s Huckleberry Finn.

When self-invention is the social norm, everyone is invited to try their hand at it. But this game is unknown in Europe. How does one play the game without knowing the rules or when the rules are changing quickly? This is a particular problem when society changes within a generation. Those who were at the top cannot forget their lost status, and cannot help but see their new equals “as oppressors whose destiny cannot excite their sympathy.” Meanwhile, they see their former peers as no longer sharing a common bond or purpose. Those who were at the bottom of the hierarchy, meanwhile, feel no kinship with the former aristocrats. The result is that at the beginning of a democratic society “citizens show themselves the most disposed to isolate themselves.” The factors that help control individualism are not yet powerful enough to do their job.

The result of this desire to isolate is to shrink the citizens’ social inclinations. People no longer feel any connections with others, and just after the revolution society has not yet had a chance to create or support institutions that might encourage them to think of their fellows. Citizens become victims of the illusion that all that is needed is to take care of themselves and their family, and the society will look after itself. This is powerful enough to keep people apart if allowed to take hold, and so newly democratic societies must take special care to combat it.

Americans are fortunate, again, because they were “born equal.” The nature of American society, for this reason, has always accepted the need to create one’s own place in the world. Moreover, the American government, by nurturing the habits of social cooperation, keeps Americans from falling victim to the idea that they do not need anyone else. In particular, the moral method of Americans – self-interest rightly understood – reinforces the idea of social bonds as necessary in society.

De Tocqueville does not offer any guidance to Europe on how to merge democratic social conditions with democratic government. He simply says that Americans have done it, and that the diseases of democratic social conditions are most likely to show themselves at the beginning.

Democratic citizens are prone to certain virtues, but also subject to certain vices. Americans can be self-reliant, skeptical, cooperative, and religious. But they can also be indifferent to others, superstitious, competitive, and dogmatic. Democracy threatens to separate individuals from each other in a way that makes them forget that they depend on each other. The ease with which they can reinvent themselves allows them to think that the invention was completely their own.

De Tocqueville will go on to show how America’s free institutions help to combat individualism. In these two short chapters, he has identified the issue that will most powerfully threaten the democracy that Americans have been born to.

Jack Barlow is Charles A. Dana Professor of Politics, Emeritus, at Juniata College, where he has been on the faculty since 1991. He teaches courses on public law and political theory, and has written on Cicero and American political thought, most recently on Gouverneur Morris. In 2012, he published a collection of Morris’s writings, To Secure the Blessings of Liberty, with Liberty Press.

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Essay 64: Individualism In Democratic Countries (Vol. 2 Pt. 2 Ch. 2)

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Guest Essayist: Jack Barlow

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 482 (start at Chapter 2 heading) – 484 (stop at Chapter 3 heading) of this edition of Democracy in America.

Individualism is an idea that was not known in the English speaking world until Democracy in America, and De Tocqueville’s first translator is credited with the first use of the word in the English language. The new word is a part of the new politics ushered in by the spread of democracy, and is one ground of De Tocqueville’s claim that America demonstrates the need for a new science of politics. The society created by the first generations of Americans resulted in this entirely new social condition, and De Tocqueville sets out to document its nature and its progress.  

The first thing he makes clear is that individualism is not selfishness, even though it looks like selfishness and can lead to selfishness. Selfishness is not confined to democratic society, in the way that individualism is, but is a vice that affects humans in general. A selfish person does not concern himself with society and its standards, but measures all social relations by his own desires.  This can happen anywhere. Individualism comes from the structure of democracy.  Aristocratic societies lead people to consider the needs and desires of those around them, but rarely think about humankind. Democracy leads people to care about mankind, but lose a sense of obligation to the particular people nearest them.  

Aristocratic society offers a natural way of combating selfishness, by visibly connecting everyone with his ancestors and descendants. Democracy “breaks the chain” of connection between people and generations and “sets each link apart.”  Individualism is the condition of people who recognize their duties to mankind but allow their connections to individuals to deteriorate.  

In aristocratic society, people recognize their duties because they are born to them. Status is inherited rather than chosen, and one’s place in the social hierarchy is fixed.  A democratic society puts all social relations in flux – status must be negotiated anew with each person or in each setting. But this negotiation becomes a mere necessity, and people soon tire of the need for constant bargaining.  

This leads to separation – each citizen wants to move “to one side with his family and friends.” Individualism means making one’s own club with a few like-minded people, and then controlling the membership so no one needs to bargain and no one feels uncomfortable. Without a care for the past or future, everyone can think of themselves as responsible to themselves alone. They need not care about the needs or interests of anyone who might be affected by their activities. Each person imagines that they are responsible for themselves, and that so long as each one looks out for themselves, society will go on without them. 

This is a nursery of bad habits, De Tocqueville believes, encouraged by the social and political conditions of democracy. Fortunately, as he emphasizes elsewhere, the American system has a cure for individualism. The first element is decentralization — people in local communities are required to work with their neighbors to define and solve common problems. 

The second element is religion, which qualifies Americans’ natural skepticism. It is restrained by the need to accept certain moral truths simply on trust.  This sets limits to the range of possible beliefs in American society and thus brings people closer to a common way of thinking.  

The third factor limiting the damage caused by individualism is the use of associations. From the time that Benjamin Franklin advocated the first public library and first volunteer fire company, Americans have recognized that people – without government – can work together to make their community better. Thus there are dozens of such civic associations in every community, from service clubs such as the Lions or Rotary to special purpose societies such as volunteer fire companies. The presence of these organizations means that even in their social life, Americans’ thoughts are being led outside of themselves. They are almost accidentally led to think about public issues.  

The final element is what De Tocqueville calls Americans’ philosophical method, and will later call “self-interest rightly understood.”  It leads Americans to recognize that common interests and needs affect them personally. Thus they are required to work with others to accomplish things that benefit everyone – the origin of the association. This prevents individualism from becoming isolating.  Americans might understand that they are attached to mankind, but self-interest leads them to work with the people in their own community.  

Americans have found ways of breaking the isolation and selfishness brought by individualism, but De Tocqueville seems to doubt that the correction can be permanent.  He ends the chapter on a note of doubt, which he will reinforce in the next chapter.  In his observation, Americans have – for the moment – managed the trick of making equality work in a dynamic society.  Since this book is aimed at Europeans, however, he turns to the question of what happens to bring about democratic social conditions.  

 

Jack Barlow is Charles A. Dana Professor of Politics, Emeritus, at Juniata College, where he has been on the faculty since 1991. He teaches courses on public law and political theory, and has written on Cicero and American political thought, most recently on Gouverneur Morris. In 2012, he published a collection of Morris’s writings, To Secure the Blessings of Liberty, with Liberty Press.

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Essay 63: Why Democratic Nations Display A More Passionate And Lasting Love For Equality Than For Freedom (Vol. 2 Pt. 2 Ch. 1)

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Guest Essayist: Jonathan Yudelman

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 479 – 482 (stop at Chapter 2 heading) of this edition of Democracy in America.

“Why Democratic Peoples Show a More Ardent and more Lasting Love for Equality than for Freedom” is a short, vital chapter with a long title. It exposes the basic thought behind many of De Tocqueville’s various fears for the future of democracy. Democratic citizens have a great passion for both freedom and equality, De Tocqueville argues. But their love for equality threatens always to become exclusive and excessive, eclipsing and destroying freedom.

In making this argument, De Tocqueville implies that over the long-run democratic order is threatened far less by its failures to live up to democratic ideals, than by an excessive or one-sided attachment to one of those ideals. This was surely an unwelcome lesson for the French and American democrats of De Tocqueville’s day, and it’s scarcely likely to be more easily accepted today. Human beings generally have an understandable predisposition to resist the notion that their ideals could be a source of danger. If one fails in realizing one’s ideal, one can simply do better next time. But if one’s ideal is to blame, one must take on the more difficult and daunting work of changing direction.

Perfect equality together with perfect freedom “is the ideal toward which democratic peoples tend.” Perfect freedom and perfect equality, however, is logically possible only under the very unlikely circumstance that “all citizens concur in the government and each has an equal right to concur in it.” De Tocqueville means that the democratic ideal of perfect freedom and equality is contradicted by democratic experience; in reality, dispute characterizes democracy, a voting majority decides, and the rest must follow whether they like it or not. The only way of achieving true equality and perfect freedom would be the fundamental sameness of everyone. If, for instance, everyone voted the same way, then everyone would be politically equal and everyone would likewise be free to live just as they like.

Since in reality the combination of perfect freedom and perfect equality fails through the fact of political differences, these two ideals remain distinct and undermine each other. An increase of freedom endangers equality, while imposed equality cancels freedom. A dual love of both freedom and equality might well be the secret formula to democratic success. But De Tocqueville feared that this balancing act is precarious and that democracy itself rigs the contest. Equality is democracy’s “principle passion” and “mother idea.” “Do not ask what unique charm men in democratic ages find in living as equals,” De Tocqueville muses, “equality forms the distinctive characteristic of the period they live in.” The problem is that when forced to choose, democratic peoples are strongly tempted to choose equality over freedom and become, unintentionally, the authors of their own unfreedom and servitude.

De Tocqueville gives additional reasons rooted in human nature why love of equality has the advantage over love of freedom. Equality is easier to grasp and maintain than freedom. Too much freedom leads to obvious problems, such as disorder and license. Whereas the problems produced by too much equality, such as poor leadership or lack of innovation, are more obscure and distant. At the same time, freedom requires time and exertion before it leads to good things, whereas equality appears to provide good things immediately and without effort.

In the best case, a healthy democracy institutes measures to hold in check the democratic preference for equality over freedom. But the very opposite– an unrestrained and excessive love of equality – can occur in times of change and unrest when “the old social hierarchy… is finally destroyed after a last internecine struggle.” In other words, the most extreme and dangerous form of the love of equality is not aroused by the sight of inequality, but rather by vast social change and uncertainty in general.

Then men rush at equality as at a conquest… The passion for equality penetrates all parts of the human heart; there it spreads and fills it entirely. Do not say to men that in giving themselves over so blindly to an exclusive passion, they compromise their dearest interests; they are deaf. Do not show them that freedom escapes from their hands while they are looking elsewhere; they are blind, or rather they perceive only one good in the whole universe worth longing for.

Democratic citizens love freedom, but for equality “they have an ardent, insatiable, eternal, invincible passion; they want equality in freedom, and, if they cannot get it, they still want it in slavery.”

To survive and thrive, a democracy must find means of teaching people to love equality in freedom while detesting equality in slavery. To observe and know which is which, there can be no better guide than De Tocqueville himself.

Jonathan Yudelman is Assistant Professor of Political Theory in Intellectual Foundations at UATX. He holds a Ph.D. in Political Science from Boston College and from 2020-2024 held postdoctoral positions at Princeton, Harvard, Baylor, and Arizona State University. His current research focuses on early modern political theory, the idea of progress, sources of political authority, and the intersection of politics and religion.

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Essay 62: Parliamentary Eloquence In The United States (Vol. 2 Pt. 1 Ch. 21)

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Guest Essayist: Eric Wise

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 472 (start at Chap. 21 heading) – 476 of this edition of Democracy in America.

Modes of political behavior run along the grooves of the larger habits of the social organism. Call it culture, if you will. De Tocqueville, in his chapter on political eloquence in the United States, compares the European aristocratic mode to the  American democratic mode. Before we examine De Tocqueville’s discussion, two digressions.

Eloquence conventionally means “fluent or persuasive speaking” and is used today to indicate objective oratory talent. If now we say “The Congressman spoke eloquently” we tend to mean finely. But the origin of the word is the Latin “e” for out [as in “exit”] and “loqui” to speak. The French word is “éloquence”, and the English word is borrowed from this mother language. In French, “éloquence” can also mean raw loquacity and volubility. I take De Tocqueville’s meaning to be mainly the method of speaking out rather than the finer quality of it.

In the 1986 hit comedy “Back to School” the protagonist, Thornton Melon, fumbling for words to ask his professor — who at least sounds European — out on a date, says “Call me sometime when you have no class.” This joke is funny precisely because America, in its prohibition of titles of nobility, is, in more ways than one, a classless society. 

Few things show this more clearly than a common American method of fraud, which is to assume the air of European class structure to gain some advantage. A fine illustration of this comes from Mark Twain’s Huckleberry Finn. 

After one fraud introduces himself to Jim as the Duke of Bilgewater, his companion ups the ante: “Bilgewater, I am the late Dauphin!” Hilarity ensues as the Duck and the Dolphin carry out various fraudulent schemes as Jim and Huck make their lives in America great again by floating their way to Cairo and freedom, the essence of America that until then has eluded them both, Jim as a slave and Huck as a minor in the custody of a violent drunkard.

Returning to our main discussion, De Tocqueville observes that in the European parliaments a member of an assembly draws his station from the aristocratic structure. This creates a habit of subordination which quietly informs a politician how to behave. Particularly, it causes him to subordinate to party claims rather than to the direct interests of those he represents and have elected him. He cares only a little about the loss of his seat because his sense of himself and his worth is bound up in his station which exists independent of his elected political life. For the most part he says little of interest, and has little interest in saying much.

The American politician De Tocqueville describes has an entirely different view of himself. The American representative depends upon those who elected him for his status. He is self made by virtue of his election to office and is unmade by the loss of his office. As a consequence, party is secondary to the American politician, and his outspokenness is directed towards impressing his constituents and towards fighting for his constituents’ narrow, often openly selfish, interests.

The curiosity of the American politician about his constituents is perhaps only exceeded by his constituents’ curiosity about him. According to De Tocqueville “The population of a district charges a citizen with taking part in the government of the state because it has conceived a very vast idea of his merit. Since men appear greater in proportion as they are surrounded by smaller objects, one may believe that the opinion held of the agent will be higher as talents are rarer among those he represents.” Ouch.

In short, De Tocqueville’s opinion of most American constituents is little higher than Mark Twain’s view of the townspeople along the river who pay to see Jim painted blue and exhibited as a “sick Arab” or to see the thoroughly fraudulent play, The Royal Nonsuch, produced by Bilgewater and the late Dauphin. 

It’s not flattering. American electors, De Tocqueville says, expect that their representative will be an orator, and that he will speak not just on behalf of the country but zealously on behalf of their interests. This is his eloquence and the essence of his outspokenness.

“He will speak often if he can, and that in case he is forced to refrain, he will strive at any rate to compress into his rare discourses an examination of all the great affairs of state joined to an exposition of all the little grievances they themselves have to complain of,” says De Tocqueville. Emphasis is my own.

The words of the Frenchman wound but it is hard to escape notice that such behavior is the epitome of today’s more talented members of the House of Representatives. 

But all that De Tocqueville says is not insulting. He closes by noting the inferiority of the deliberations of aristocratic nations, which focus on “particular times” and “the rights of a particular class.” Debates in the democratic assemblies of America somehow through all the aforementioned defects are more interesting than those of Europe.

“I see nothing more admirable or more powerful than a great orator discussing great affairs within a democratic assembly. As there is never a class that has charged its representatives with asserting its interests, it is always to the whole nation in the name of the whole nation that one speaks. That enlarges thought and elevates language.”

From De Tocqueville’s low estimation of American outspokenness comes high praise indeed.

As the French say, C’est bon!

J. Eric Wise is a partner in the law firm of Alston & Bird.

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Essay 61: Characteristics Peculiar To Historians In Democratic Ages (Vol. 2 Pt. 1 Ch. 20)

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Guest Essayist: Trevor Shelley

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 469 (start at Chp. 20 heading – 472 (stop at Chp. 21 heading) of this edition of Democracy in America.

Vol. II Part 1 Chapter 20: On Some Tendencies Particular to Historians in Democratic Centuries
The second volume of Democracy in America is divided into four parts, the first of which is devoted to the “Influence of Democracy on Intellectual Movement in the United States.” De Tocqueville is here interested in understanding the ways democracy shapes and forms the minds, and so the mental activities, of democratic peoples.

In chapter 20 he takes up the topics of historians, who are often intellectuals, and the writing of history (or historiography), an important exercise of the intellect, which influences how people perceive themselves and their times. There is no single or definitive account of the past; nor is the best method of historiography a settled matter. The way historians approach the facts of the past is itself affected by factors beyond the individual historian, including the social state and period in which they write. One of the most intellectually influential activities of the human mind is itself subject to influences outside the intellect. Thus, in this chapter De Tocqueville discusses the kinds of causes in history and the different practices in writing history, while he likewise provides guidance to historians about intellectual errors of grave social and psychological consequence. The chapter is therefore both descriptive and evaluative of the tendencies of historians in aristocratic and in democratic ages.

Aristocratic historians tend to focus on small or particular causes at the expense of great or general ones. They attribute tremendous importance to individuals, or to “a very few principal actors,” who steer the course of history. They are enamored of great deeds and individual actions, around which their narratives turn. This gives them, De Tocqueville writes, “an exaggerated idea of the influence that a man can exert and naturally disposes them to believe that one must always go back to the particular action of an individual to explain the movements of the crowd.” Aristocratic historiography, therefore, says little about the lives and opinions of the many. Focusing almost exclusively on leaders, warriors, and other grand actors, it ignores the rest of society and other social facts; consequently, the broader “sequence of events eludes” these historians.

De Tocqueville argues by contrast that democratic historians neglect, or even deny, the influence of individuals as they focus instead on things like “the nature of races, the physical constitution of the country, or the spirit of the civilization.” By obscuring particular persons and facts, democratic historians draw sweeping conclusions and “make a system” or “a methodical order” out of general causes. Democratic historiography is therefore more self-conscious about method and system-building; it tends to become less beautiful and more abstract. De Tocqueville’s real concern, however, is, “When any trace of the action of individuals on nations is lost, it often happens that one sees the world moving without discovering its motor.” This tempts people to believe there are large, inevitable, and irresistible forces at work in history, against which the human will is powerless.

While the tendencies of both types are prone to exaggerations and pitfalls, the assumption of democratic historians that all are subject “either to an inflexible providence or to a sort of blind fatality” is, for De Tocqueville, a dangerous view; an idea that “does not save human freedom.” For, the “doctrine of fatality” adopted by democratic historians does not remain confined to schools of history, or to the world of historians, but eventually “penetrates the entire mass of citizens” and shapes “the public mind.” The fatalism of historians leads individuals to doubt free will itself. In opposition to this doctrine, De Tocqueville writes, “it is a question of elevating souls and not completing their prostration.” People are ennobled by a sense of the soul’s capacity for judgment and action, and historiography ought to reflect—or better yet, encourage—this fact, so that citizens cultivate an appreciation for freedom, which is both a prerequisite for, and an effect of, self-government.

Readers will wonder whether De Tocqueville is himself more of an aristocratic or democratic historian. Near the chapter’s midpoint he writes, “I think that there is no period in which it is not necessary to attribute one part of the events of this world to very general facts and another to very particular influences. These two causes are always met with; only their relationship differs.” While Democracy in America makes so much of the general (or “mother”) cause of “equality of conditions,” De Tocqueville’s comparative approach helps him avoid succumbing to the spirit of either age, or to the tendencies toward excess of either historiographical approach. The very fact that he speaks of “tendencies” indicates that the minds of historians (as with all individuals) are always free in important respects. Strong doubt to the contrary results from a corrupting that demands spirited resistance.

The chapter here under discussion is valuable for thinking about history and historiography, but also for evaluating De Tocqueville’s own project, as well as the writings of others in our democratic age—to measure and assess the ways different works may contribute either to the elevation or the prostration of souls.

 

Trevor Shelley is Assistant Teaching Professor and Associate Director of Graduate Studies at the School of Civic and Economic Thought and Leadership, at Arizona State University. He is author of Liberalism and Globalization: Montesquieu, Tocqueville, and Manent (Notre Dame, 2020), co-editor of Citizenship and Civic Leadership in America (Lexington, 2022) and of Renewing America’s Civic Compact (Lexington, 2023), and author of various book chapters and articles on political theory.

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Essay 60: “A Few Sources Of Poetry In Democratic Nations”, “Why American Writers And Speakers Are Often Bombastic” & “A Few Remarks On The Theater Of Democratic Nations” (Vol. 2 Pt. 1 Chs. 17-19)

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Guest Essayist: Matt Van Hook

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 458 – 469 (stop at Chp. 20 heading) of this edition of Democracy in America.

Democracy in America, Vol II, Part II, Chapter I – “Why Democratic Peoples Show a More Ardent and more Lasting Love for Equality than for Freedom”
By the time De Tocqueville’s readers arrive at his chapter on the sources of poetry in democratic nations, he has already passed his preliminary judgment that “Up to the present, America has had only a very few remarkable writers; it has not had great historians and does not count one poet.” The few American writers known to Europeans, such as Washington Irving and James Fenimore Cooper, were read because they stoked fascination for those trying to understand America and its revolution. The “poems of democracy” might hold similar explanatory power and purpose, but they fall short of De Tocqueville’s definition of true poetry as “the search for and depiction of the ideal.” In America he searches for the poetic instead of true poetry.

Poetry aimed at the ideal “will not have for its goal to represent the true, but to adorn it, and to offer a superior image to the mind.” In democratic social states, however, the true and ideal are wrapped up together in “material enjoyments” that spark only a certain kind of limited imagination—Gatsby’s fabulous and conspicuous wealth, the savvy monopolists’ conquering of a system from railroads to software, the investigative journalists’ takedown of these sorts. They represent only the “ideal” of real people doing practical things well without the assistance of aristocratic position, divine intervention, or magic. Democratic social states pull the poets’ imaginations down from the clouds and confine them to “the visible and real world.” So it should not surprise De Tocqueville’s readers then or now that, like the relentless sun over the great American desert, equality has dried up the old sources of poetry. New sources of poetry must emerge from a world entirely new, and De Tocqueville describes this occurring in two phases.

When estates that span centuries no longer survive a single generational split, and names and titles are scarcely known even as historical artifacts, the democratic poets first turned toward “inanimate nature” to fill the void. The Mississippi River and Appalachian Mountains replaced the lost objects of aristocratic imagination. This temporary turn, however, was only the brief transition to the true democratic turn inward. De Tocqueville is “convinced that in the long term democracy turns the imagination away from all that is external to man to fix it only on man.” This inward turn toward the human race has great potential for the poetic, but only if it can be made to think of humanity’s shape and future. Can such a turn be expected from Americans living in a social state of equality? As De Tocqueville explains, “One can conceive of nothing so small, so dull, so filled with miserable interests, in a word, so antipoetic, as the life of a man in the United States.” Enter Emily Dickinson stage left. One can almost imagine a ten-year-old Dickinson picking up the newly released second volume of Democracy in America, reading this chapter, and determining to fulfill the author’s expectations for distinctively American poems. These examinations of small souls are not poetry proper but there is still something poetic to be found in them.

While De Tocqueville seems to predict the arrival of Dickinson, Whitman, Frost and other democratic poets willing to mine the mundane for transcendent ideas, he fears a more extreme future. He expects that the bombastic language, already so prevalent in American writing, will saturate poetry as well, and “the works of democratic poets will often offer immense and incoherent images, overloaded depictions, and bizarre composites in imaginations that depart from reality rather than adorn the ideal.” He finds this already taking place in the theaters where spectacle rules, though admittedly still bounded in his time by a remnant of Puritan cultural restraints and township laws. De Tocqueville’s theater chapter provides a fitting bookend to his discussion of poetry because his readers can imagine the democratic poetry of America combining spectacle, passions, and ideas with the smallness of a single democratic soul longing for achievable human greatness. When searching for the democratic poetry of the present, one need only look to the spoken word poetry, music of the blues, and other distinctly American sources that come together on stage in Lin Manuel Miranda’s Hamilton!

Matthew Van Hook received his doctoral degree in political science from the University of Notre Dame with a focus on political theory, constitutional studies and American political thought. He also holds a master’s degree in security studies from the Naval Postgraduate School in Monterey, California. Prior to joining the Torrey Honors College faculty, Van Hook served on active duty as an Air Force pilot and political science professor at his alma mater, the US Air Force Academy. His research and published work ranges from the statesmanship of Abraham Lincoln to politics and law in the novels of Harper Lee.

Matthew Van Hook received his doctoral degree in political science from the University of Notre Dame with a focus on political theory, constitutional studies and American political thought. He also holds a master’s degree in security studies from the Naval Postgraduate School in Monterey, California. Prior to joining the Torrey Honors College faculty, Van Hook served on active duty as an Air Force pilot and political science professor at his alma mater, the US Air Force Academy. His research and published work ranges from the statesmanship of Abraham Lincoln to politics and law in the novels of Harper Lee.

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Essay 59: “Why The Study Of Greek And Latin Literature Is Particularly Useful In Democratic Communities” & “How American Democracy Has Modified The English Language” (Vol. 2 Pt. 1 Chs. 15-16)

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Guest Essayist: Zachary German

 

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 450 (start at Chap, 15 heading) – 458 (stop at Chapter 17 heading) of this edition of Democracy in America.

What kind of education should people receive in a democratic society like the United States? Tocqueville has a characteristically nuanced answer to this question. One part of that answer reflects his understanding that Americans, as democratic citizens, are educated—or formed—by various sources beyond formal schooling. A second element derives from his willingness to tailor his prescriptions to the circumstances and character of a democratic people. A third piece exemplifies his commitment to pushing back against the regrettable tendencies of democratic life and thereby channeling it in salutary directions.

We might be initially surprised that, in Vol. 2, Pt. 1, Ch. 15 of Democracy in America, Tocqueville makes no mention of civics—education for citizenship—in his brief commentary on education in a democracy. That surprise will dissipate, though, if we remind ourselves that Tocqueville observes an array of sources of civic formation at work in the United States in the 1830s. Local political institutions, he says, “are to freedom what primary schools are to science,” habituating citizens to self-government; the institution of the jury is akin to “a school, free of charge and always open,” wherein jurors are the students; and political associations amount to “great schools, free of charge” for “all citizens” to learn about associational life. Religion fosters a sense of moral limits on democratic majorities, and Americans grow accustomed to a peaceful and orderly way of life. through their families In short, Tocqueville contends that all of these aspects of Americans’ lives contribute to an education for self-government.

With civic education supplied in this manner, Tocqueville indicates that education in a democratic society ought to aim predominantly at what he describes as a “scientific, commercial, and industrial” education. He would not be taken aback by our contemporary preoccupation with STEM fields, business majors, and vocational programs.

If democratic individuals received only an education in fine arts, he warns us that we “would have very polite but very dangerous citizens; for every day the social and political state would give them needs that they would never learn to satisfy by education.” Liberally educated, economically insecure, discontent students are unhappy individuals and destabilizing forces in a democracy. It seems that Tocqueville might echo the question that so many parents ask their college-aged children: “What are
you going to do with that degree?”

However, even in a democratic age, Tocqueville is not willing to abandon a different and arguably nobler kind of study. He tells his readers at the outset of Democracy in America that the equality of conditions “modifies everything it does not produce.” To the dismay of some, those modifications include linguistic alterations of the English language. Yet, while Tocqueville yields significant ground to the force of equality to reshape a society, he also strives to avoid some of its unnecessarily negative potentialities. Cultivated in aristocratic soil, classical literature, he argues, possesses admirable qualities that democratic literature lacks: “Thus there exists no literature better suited for study in democratic centuries.”  Only a few individuals need to or should engage in this study; hence, only a few institutions need to facilitate it. Tocqueville explains that “a few excellent universities would be worth more than a multitude of bad colleges where superfluous studies that are done badly prevent necessary studies from being done well.”

Tocqueville’s analysis encourages us to consider students as democratic citizens with civic roles to fulfill, as individuals with economic needs and aspirations, and as human beings, more generally, with the capacity for excellence. With nearly two hundred years having passed since he visited the United States, our approach to education today should likely exhibit a greater emphasis on preparation for citizenship, given that the informal sources of civic formation that Tocqueville highlighted may be insufficient in the contemporary United States. We should also take seriously the evidence that a liberal arts education, well understood, equips students to be productive in our twenty-first century economy in ways beyond what a narrow technical degree or training provides; studying classical literature—and great books more generally—has more applications than what we may immediately recognize. Finally, following Tocqueville’s lead, we should not lose sight of how education might remedy undesirable tendencies of democratic culture and promote human excellence in its multifarious splendor.

 

Zachary K. German is an assistant professor in the School of Civic and Economic Thought and Leadership at Arizona State University. His research focuses on American political and constitutional thought, along with early modern thought, on questions of statesmanship, political culture and civic character, constitutional design, civic education, and politics and religion. He teaches courses on political thought, leadership, and constitutionalism, largely but not exclusively in the American context. He also contributes to K-12 civic education efforts, including teacher workshops and summer seminars for high-school students. 

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Essay 58: “How Literature Appears In Democratic Times” & “The Literature Industry” (Vol. 2 Pt. 1 Chs. 13-14)

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Guest Essayist: Jack Fitzhenry

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 445 – 450 (stop at chapter 15 heading) of this edition of Democracy in America.

Literature hews to standards outside of the democratic logic. A canonical work does not attain that status by majority consent. Claims of merit do not require a reader’s consent to be authoritative. And the pursuit of sublimity, literature’s proper object, reveals that men have always been created unequal in their intellectual endowments.

Literary excellence is not inherently political, and its claims need not raise a direct challenge to democracy. Yet in a society that exalts equality and promotes self-expression for its own sake, literature stands uneasily at the margins—tolerated, perhaps ignored.

As part of his seminal survey of America, Alexis de Tocqueville lingers for a few chapters on the reciprocal influences running between democracy and literature. By the time he reaches literature, De Tocqueville has toured through adjacent subjects such as Americans’ pursuit of arts and sciences. He has been critical, but the professed friend of democracy takes pains to convince readers that the “irresistible” democratic revolution does not trail cultural poverty in its wake.

Yet honesty compels De Tocqueville to acknowledge the tensions between American democracy and literary achievement—tensions that are only sometimes fruitful. De Tocqueville observes that America is a civilized nation where “people are least occupied with literature.” Americans of that era often mistake literature for a trade. Thus, they pursue it, if at all, in the same commercial and practical spirit animating all their undertakings. Commerce and politics exert on literature more influence than literature does on either. American book vendors are glutted with rudimentary treatises and pamphlets on topical political concerns.

American verve for commerce extends material prosperity, and the newly prosperous develop a certain inclination towards literature. But the sources of that prosperity undermine the nascent interest by making it insensible to subtler intellectual joys. American readers buy works that “one can enjoy at that instant,” and they crave subjects that are “new and unexpected.” They wish, in short, to be entertained.

The country’s great men, devoted to politics, make literature their diversion, not their vocation. Still, on the edges of the nation’s dark frontier, Americans tend small flames of literary devotion. When De Tocqueville muses how he first read Shakespeare’s Henry V in an American “log house,” the play’s presence in that setting is more revealing than accidental. More than tragedies, romances, or comedies, Shakespeare’s tale of martial triumph, of men rallied to great acts against long odds, captivates the American reader whose energies are bent on securing his precarious existence.

In De Tocqueville’s time, not only cabin-dwellers, but America’s cultivated set satisfy their literary appetites with English fare. Their forefathers reviled English writers like Samuel Johnson for Tory-ism, but De Tocqueville observes that Americans still rely on English authors to supply their literary wants, they mimic English literary fashions, and they defer to English judgment even of American writers. The reason is not just a common tongue—England remains “aristocratic,” resisting the democratic winds blowing from across the Atlantic and across the English Channel.

Aristocracy, because of its inequality, produces certain literary greatness. De Tocqueville warns that aristocracies’ tendency towards isolation could deprive them of power both literary and political. But aristocracies relieve the few of harrying commercial cares, enabling the acquisition of that “profound” knowledge of “literary arts” that eludes most among the “agitated multitude” of the world’s new democracies.

De Tocqueville, though, retains hope for a truly American literature. He explains that as societies move between conditions, there comes a period, maybe brief but fecund, when democratic virility and aristocratic sensibility “reign in accord over the human mind.”

Have De Tocqueville’s observations on American’s relation to literature fared well? America, though rarely lacking oligarchs, has never been aristocratic. But across two-and-a-half centuries, America has produced her own great writers. Whitman, Melville, Eliot, Hawthorne, Faulkner, and Hemingway are read, translated, and admired the world over. Several were Nobel Laureates.

And yet today there is cause for pessimism, much of it traceable to the same tendencies De Tocqueville identified in early 19th century America.

The fixation on equality has overcome the academy with demands for representation based on authorial characteristics having nothing to do with the quality of their work. Literature faculties retreat from standards faster than their students depart for other disciplines. American love of novelty and commerce brought us large-language model “artificial intelligence” to write for us about books we have not read. Democratic desire for narratives that agitate the emotions produces a digital universe of content broad in array but shallow in depth.

Americans understand the ills that stem from democratic excesses. In the Constitution, they tempered democratic politics with republican forms. Because the cultivation of literature relies on influences “alien or even contrary to equality,” a similar recognition and restraint are required. For Americans who still aspire to a literary life, the answer may be that ancient maxim: to be in the world, not of it.

 

Jack Fitzhenry is a Legal Fellow in the Edwin Meese III Center for Legal and Judicial Studies.
He previously served as a law clerk for the Hon. Madeline H. Haikala on the United States District Court for the Northern District of Alabama and for the Hon. Patrick E. Higginbotham on the United States Court of Appeals for the Fifth Circuit. Between clerkships, he litigated a variety of commercial disputes as an associate with Quinn Emanuel Urquhart & Sullivan LLP. Fitzhenry received his law degree from the University of Michigan Law School and his bachelor’s degree in English Literature from Williams College.

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Essay 57: “In What Spirit The Americans Cultivate The Arts” & “Why The Americans Erect Both Insignificant Monuments And Others Which Are Very Grand” (Vol. 2 Pt. 1 Chs. 11-12)

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Guest Essayist: David L. Schaefer

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 439 (Chp. 11 and below) – 444 of this edition of Democracy in America.

A friend once remarked to me that he disliked visiting our nation’s capital because it had come to remind him of imperial Rome. He had in mind the plethora of massive office buildings most constructed to house the large Federal bureaucracies that developed owing to the expansion of the government’s domestic responsibilities beginning in the 1960’s. Through the comparison with the Roman Empire, he was suggesting the incompatibility between massive government and the spirit of genuine republicanism, or self-rule.

This, precisely, is De Tocqueville’s point in his chapter on “Why the Americans at the Same Time Raise Such Little and Such Great Monuments.” Despite having observed in the previous chapter that in democratic times “the monuments of the arts tend to become more numerous and less great,” he immediately adds the exception to that rule. In democracies the size of public monuments tends towards the gigantic, reflecting the fact that while “individuals are very weak …. The state, which represents all” of them and “holds all in its hand, is very strong.”

As evidence De Tocqueville cites Americans’ having laid out “the precincts of an immense city” to house their national capital, even though in De Tocqueville’s time it held only a tiny population. With remarkable foresight, Americans had “uprooted trees for ten leagues around” so as not to obstruct the future expansion of the capital’s population to as many as a million. And not only had they “raised a magnificent palace” to house Congress, they had “given it the pompous name of Capitol” – imitating the Roman title, despite America’s falling far short of the Roman Empire in size and power in 1830. De Tocqueville adds that America’s state governments also engage in “prodigious” architectural undertakings that “would astonish … the great nations of Europe.”

Hence De Tocqueville concludes that while democracy “brings men to make a multitude of minute works,” as noted in the preceding chapter, “it also brings them to raise a few very great monuments,” albeit leaving “nothing” in between. But he denies that a nation’s capacity to build a few grand monuments tells us anything about the people’s “greatness, enlightenment, and real prosperity.” He cites, for instance, the Spanish conquistadores having “found Mexico City full of magnificent temples and vast palaces,” which did not prevent Cortes (Core-tez) “from conquering” the Mexican empire “with six hundred infantry and sixteen horses.” (Of course, Cortes’s success owed something to his superior weaponry, but De Tocqueville’s point remains: the fact that his small army was aided by thousands of indigenous people rebelling against the oppressive rule of the Aztecs can be taken to signify a certain rottenness at the empire’s core.)

De Tocqueville’s point about the disparity between the size of Americans’ public buildings and that of their “narrow” private dwellings reflects his deeper concern: the need to fortify people’s sense of their individual capacities, in opposition to the tendency of a bureaucratized “nanny state” to reduce them to a condition of servility (the central theme of Part IV of Volume II), in which all their needs are cared for by “experts” with little real accountability to the ostensibly sovereign people. Against that threat, De Tocqueville has endorsed such devices as decentralized administration, which leaves the governance of people’s purely local concerns in their own hands; a free but decentralized press, which encourages the circulation of diverse opinions based on empirical experience rather than abstract ideology; the “science” of voluntary association, brought to a pinnacle by Americans; and religions that teach people that they possess immortal, individual souls – in opposition to the endeavor of pantheism to destroy any sense of individuality.

As we look back on De Tocqueville’s concerns from the perspective of almost two centuries since he made his observations, we cannot avoid being struck both by the sagacity of his fears, and the good sense of his recommendations. The population of the national capital has multiplied vastly beyond even what seemed to De Tocqueville to be Americans’ exaggerated expectations – and with it national and state bureaucracies more extensive than what even he may have anticipated. Yet thanks to our federal system, opportunities for Americans to have a say in their governance remain more extensive than they are in France (where dissenters from national policy regularly resort to crippling strikes and obstructionist tactics to have their say). On the other hand the decline of regular religious observance, often supplanted by an extremist “green” worship of nonhuman nature, is eerily reminiscent of pantheism.

It remains to be seen whether Americans will retain a sufficient spirit of individual enterprise and downright stubbornness (“Don’t Tread on Me!”) to resist the dominance of those who claim effectively unlimited power to act on behalf of the people’s “will,” as signified by those grandiose buildings. As a start, De Tocqueville might favor the Trump administration’s endeavor to have new public buildings constructed in the inspiring classical style.

David Lewis Schaefer is professor emeritus of political science at the College of the Holy Cross. He has written and edited numerous works on political philosophy in general, as well as on American political thought. His most notable works include The Political Philosophy of Montaigne (second edition 2019) and Illiberal Justice: John Rawls vs. the American Political Tradition (2007).

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Essay 56: Why Americans Are More Attracted To Practical Rather Than Theoretical Aspects Of The Sciences (Vol. 2 Pt. 1 Ch. 10)

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Guest Essayist: Antonio Sosa

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 433 (Chp.10 heading & below – 439 (2 lines & 2 complete paragraphs at top) of this edition of Democracy in America.

In this chapter, De Tocqueville gives an account of the problem of science in democratic times. Science, he says, may be divided into three parts: the first and most fundamental is the purely theoretical part, which “contains the most abstract notions, those whose application is not known or is very distant.” The second part contains “general truths” that are derived from pure theory but which “lead by a direct, short path to practice.” The third and least fundamental part contains “the processes of application and the means of execution.”

America, which De Tocqueville takes for his model of democracy left to its natural instincts, shows that democracy strongly favors practice over theory. There is no leisured nobility or propertyless peasantry in a democracy. In a democracy, nearly everyone works for a living and nearly everyone can lose what wealth they have. Everyone is therefore striving for material wellbeing. Science is therefore prized not for its power to reveal the most fundamental truths of nature but for its power to conquer nature. Not knowledge for its own sake but for the sake of relieving man’s estate, not the satisfaction of the mind but the comfort of the body, is the goal of science in democratic times. De Tocqueville singles out the steamboat as a representative example of what human intelligence aspires to achieve in democratic times. In our own time, we may say this aspiration looks to the next generation of computers, rocket ships, and medical therapies. These projects doubtless require a monumental effort of theoretical intelligence. De Tocqueville would not deny this. But he would stress that only such theory as is required to achieve the next leap in technology will be regarded as an object of high intellectual concern in democratic times. There is ample room for theory in democratic times, but it is the type of theory that corresponds to the middle part of science. It is not pure theory. It is theory in the service of application, rather than theory for the sake of contemplation.

The preceding view stands in sharp contrast to the aristocratic view of science. The defining product of the aristocratic view of knowledge is not technology but the knower himself, the theoretical man that Pascal so beautifully epitomizes in the brief portrait De Tocqueville gives of him in this chapter. De Tocqueville cannot conceive of Pascal as having been driven by “some great profit” or “glory alone,” given the extraordinary effort of will and intellect he mustered in order “to discover the most hidden secrets of the Creator.” The Platonic resonance of this description is worth remarking upon. For just as De Tocqueville earlier gave a rank order of the three kinds of knowledge, he here implicitly gives a rank order of the three kinds of desire. The order corresponds with that given in Plato’s Republic. The human soul is described near the end of the dialogue as being composed of a gain-loving part, an honor-loving part, and a wisdom-loving part. These parts form an order, with love of wisdom occupying the highest place. This order enables Plato’s Socrates to argue that the human beings in which the highest desire predominates are the highest human types. The coming into being of the best regime depends on such types coming to absolute power. It is of course not De Tocqueville’s style to speculate about utopias in an attempt to show the nature of political things. But he does here show an awareness of the classical view of the rank order of desires and men. And he seems to affirm that view through his strong praise of Pascal. The problem of science in democratic times may thus be formulated as follows: democracy will not provide an intellectual atmosphere in which men like Pascal are likely to arise and set the tone of intellectual life. This entails a diminution of the intellectual horizon of democratic man, a diminution of man’s awareness of what man is and what his perfection requires. Though a modern thinker who welcomes the broad material prosperity democratic times will bring, De Tocqueville is well aware that things essential to man’s humanity, the “rare and fruitful” passions of a Pascal, are unlikely to be “born and developed as easily in the midst of democratic societies as within aristocracies.”

De Tocqueville is not one to spell out definitive solutions to the problems he articulates. But he does point to at least three dimensions of the problem that give democratic man reason for hoping that the Pascalian peaks of intellectual endeavor will not be totally obscured by the overcast sky of a democratic climate.

To begin with, democracy enables many more human beings to partake in scientific enterprises of all sorts. Even if most human beings are concerned with application, there is a unity of knowledge that connects the most concrete technical application with the most abstract theories. It is highly unlikely, De Tocqueville claims, that with so many people engaging in scientific activity, and making such a variety of technological discoveries, that some great theoretical discoveries will not be made from time to time. Indeed, a certain regard for theory is necessary to the success of application and especially of innovation. The desire for better and more labor-saving technology may therefore be expected to nourish a certain degree of concern for theory.

Secondly, and arguably more crucial than any other factor, is the power of human nature, which endures unchanged regardless of changes in the political and social order. Some individuals have always been and always will be born with high intellectual vocations. This type “will strive to penetrate the most profound mysteries of nature, whatever the spirit of his country and his times should be” [emphasis added]. However much democracy may make practice reign over theory, nature will make theory reign over practice within certain select souls. Let us not forget that in the immediately preceding chapter, De Tocqueville writes the following with reference to the natural inequality of men: “the legislature, it is true, no longer grants privileges, but nature gives them.”

Finally, De Tocqueville gives a cautionary account of the civilizational risk posed by the loss of pure theory by way a brief account of the decadence of 16th Century China. The Europeans who landed there found an industrial and technologically developed country, “but science itself no longer existed” there, and a “singular kind of immobility” characterized “the minds of its people.” They knew how to use the scientific teachings their fathers had left them but did not understand the reasoning underlying those teachings. They could therefore not improve upon them. They “could not change anything” and so “had to renounce improvement.” This state of affairs was wholly compatible with the peace and reasonable degree of material prosperity that the Europeans found there. And yet De Tocqueville finishes this description, and closes the chapter, by comparing it to a state of barbarism. He suggests that science in democratic times, with its vast power to conquer nature in the service of human comfort, may lull democratic peoples into a false sense of security, leading them to believe that “the barbarians are still far from us.” For a society that has stifled what he earlier in the chapter calls “the transcendent lights of the human mind” is one in which the barbarians are already inside. By showing democratic man how the neglect of theory can lead to an inability to innovate, i.e., to make further technological progress, De Tocqueville cleverly uses democratic man’s natural passion for practice to foster his concern with theory.

Antonio Sosa is associate director and lecturer at the School of Civic Leadership. In this capacity, he oversees the development of fellowships, conferences, and courses that invite students to reflect on the principles of a liberal society. Prior to joining School of Civic Leadership, Antonio was an adjunct professor at the University of Dallas, where he taught classes on classical political philosophy, the American Founding, modern European history, and the history of liberal arts education. He is primarily interested in the political thought of De Tocqueville, Ortega y Gasset, and Leo Strauss.

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Essay 55: How The Example Of The Americans Does Not Prove That A Democratic People Would Have Neither The Aptitude Nor The Taste For The Sciences, Literature, And The Arts (Vol. 2 Pt. 1 Ch. 9)

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Guest Essayist: Frank Reilly

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 428 (Start at chapter 9 heading) – 433 (Stop at chapter 10 heading) (Stop at “Importance of what Precedes”) of this edition of Democracy in America.

In Volume 2, Chapter 9 of Democracy in America, Alexis de Tocqueville challenges the beliefs of some European cynics of democracy that America’s equal political system suppresses or destroys interest in, and indeed the development of, sciences, literature, and arts.

De Tocqueville opens with the presumption “that among the civilized people of our day there are few in whom the advanced sciences have made less progress than in the United States, and who have furnished fewer great artists, illustrious poets, and celebrated writers.” The presumption, based on his observations in 1840, warrants additional scrutiny.

The presumption glosses over the then-contemporary and significant contributions of Americans such as Benjamin Franklin and Samuel Morse to science; Edgar Allan Poe, James Fenimore  Cooper, and Washington Irving to literature; and Morse, Gilbert Stuart, Charles Wilson Peale, and John Trumbull to art.

Second, the presumption ignores the fact that the population of the U.S. was then only about seventeen million people, about 10 percent of Western Europe’s population, and less than 2 percent of the world’s population.

Finally, the United States was then a young nation. 1840 was only 64 years after the Declaration of Independence, and the Constitution, which formed the basis of the democratic federal government, was just 51 years old. Europe had centuries over which to develop its arts and sciences, which, as De Tocqueville notes, build upon each advance.

Regardless of De Tocqueville’s presumption’s accuracy, his analysis of the factors contributing to America’s limited presence in the arts, sciences, and literature are rational. Further, history supports his prediction that this limitation would be short-lived.

De Tocqueville’s basic argument was that democratic ideals were not at fault. Instead, he notes that America’s unique place in the world in 1840 was the reason for its intellectual deficiencies. He set forth several explanations of the uniqueness.

His first observation was that America’s puritanical roots were not conducive to intellectual endeavors. He also believed America’s expanse and individual opportunities to build new fortunes diverted attention away from arts and sciences. Lastly, he noted that Americans were already enlightened and had and could avail themselves of Europe’s “celebrated scholars, skillful artists, and great writers” without the need to cultivate their own intellectual class.

De Tocqueville next explained why he believed equality alone could not explain America’s lack of enlightened undertakings. He rationalized that despots might want to make all persons equal but deprive them of enlightenment which would leave “them ignorant … to keep them more easily as slaves.” He also noted that forced equality proposed by socialist theories of a central power which distributes goods “to all persons according to merit,” would be dangerous and devoid of enlightenment. These socialist ideals underly the governments of China, Cuba, North Korea, and the former Soviet Union.

De Tocqueville writes that when people “Who live in the heart of a democratic society are enlightened, they discover without difficulty that nothing limits or fixes them and forces them to content themselves with their present fortune.” The free people then seek to increase their fortunes, but natural inequality due to differing enlightened intelligence and diligence better rewards, some over others. After society has met its material needs, De Tocqueville suggests that the people will, in varying degrees, engage in “the works and pleasures of the intellect.” Over time, “[t]he number of those who cultivate the sciences, letters, and arts becomes immense.” While these works may be imperfect and individual efforts may be small, the sheer volume of the works will amalgamate into a great result.

After more than 180 years have passed since De Tocqueville’s writing, the freedom and enlightenment he discussed has resulted in a vast number of Americans engaged in “the works and pleasures of the intellect.” In turn, this engagement has yielded enormous gains in arts, literature, and sciences. The number of Nobel Prize awards in its six categories: physics, chemistry, physiology or medicine, literature, peace, and economic sciences, is a simple metric that validates De Tocqueville’s postulation. The United States has received about 411 Nobel Prizes since the awards began in 1901, and the United Kingdom comes in a distant second with 137. Further, De Tocqueville’s belief that despotic or socialist societies are not conducive to the arts and sciences is substantiated by the fact that China, even with a population about 4 times that of the United States, falls way behind with only 8 Nobel laureates.

The freedom of equal opportunity that the United States offers is an incubator for advances in the arts, literature, and the sciences, and as Alexis de Tocqueville would say, Americans have both the aptitude and the taste for the sciences, literature, and the arts.

Frank M. Reilly is a partner in the Texas law firm of Potts & Reilly, LLP, a Texas judge, and teaches law related political science courses for Texas Tech University.

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Essay 54: How Equality Suggests To Americans The Idea Of The Indefinite Perfectibility Of Man (Vol. 2 Pt. 1 Ch. 8)

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Guest Essayist: Eric Schmidt

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 426 (Starting at chapter 8 heading) – 428 (Stop at chapter 9 heading) of this edition of Democracy in America.

Volume Two of Democracy in America is divided into four parts: how democracy shapes the intellectual movement, sentiments, mores, and ideas of Americans. Chapter Eight is of unique importance to the whole of Volume Two because it offers an account of what seems to be American democracy’s most hopeful intellectual movement, a belief in “indefinite perfectibility” or progress.

De Tocqueville tells us that the notion of indefinite progress is a product of the equalization of conditions, which is central to democracy’s “irresistible revolution.” Equality, displayed by the leveling of social hierarchy and the rise of economic or material equality, suggests new intellectual currents to democrats, which De Tocqueville contrasts with those of the previous regime. For aristocratic nations with definite stratifications, man could progress definitively toward a limited ideal. The clarity with which aristocratic nations could view the limits of politics prevented them from “judg[ing] [perfectibility] to be indefinite.” The idea of indefinite perfectibility belongs to democratic peoples who are “mixed tumultuously” by equalizing conditions so that “the image of an ideal and always fugitive perfection is presented to the human mind.” In the tumult, man sees repeated success and failure in all his efforts to progress—never can he be satisfied that anyone has the absolute truth. The democrat is thus someone who “tends ceaselessly toward the immense greatness that he glimpses confusedly at the end of the long course that humanity must still traverse.” The democratic revolution overturns aristocratic practice and establishes new modes and orders that befit this restless pursuit of perfection.

Accordingly, the aristocrat builds for greatness and endurance, hoping to extend their definite grasp of a limited perfection as far into the future as possible. The democrat, on the other hand, is enamored with what is new. De Tocqueville makes much of an encounter with an American sailor who, when asked why Americans build ships that do not last, states simply that progress is so rapid that “the most beautiful ship would soon become almost useless if its existence were prolonged beyond a few years.” In the words of this sailor De Tocqueville, “perceive[s] the general and systematic idea according to which a great people conducts all things.” De Tocqueville concludes that “aristocratic nations tend to contract the limits of human perfectibility too much” while democratic nations “extend them beyond measure.” Here, De Tocqueville attempts to make sense of the aristocratic past and discern the course of the democratic future. How will a people so moved by progress come to regard enduring values? Where will they find limits to their quest for newness?

Further confounding Americans’ relationship with progress are their other intellectual movements. Chapter Eight is a counterpoint to the previous chapter on pantheism. Pantheism, the idea that all, creator and creation, is a single whole, forecloses the possibility that man can extend himself beyond nature—pantheism admits no possibility of human progress because man is not distinct from the rest of creation. However, in Chapter Eight, De Tocqueville argues that though democracy tends toward pantheism, equality suggests just as strongly a notion of indefinite perfection, which diametrically opposes the fatalism of pantheism with an unbounded capacity for man to improve his estate. Pantheism embellishes the democrat’s tendency to generalize by reducing all to sameness, and progress demands that the democrat be exempted from those generalizations so that he might progress beyond what is. Progress is indispensable to Americans because it balances the pantheistic intellectual movement, which would otherwise be deeply enervating. This apparent opposition points beyond Chapter Eight to more profound questions about how the idea of progress affects American life and culture.

Because Americans are so wed to this notion of progress, much of the rest of Volume Two should be read with regard to this view. Our view of progress has important implications for human liberty and historical self-understanding. If we must progress, to what do we progress? Is there a historical endpoint towards which indefinite perfectibility directs us? Might American liberty be endangered if such a historical endpoint appeared to exist? De Tocqueville writes in his conclusion that “[providence] traces, it is true, a fatal circle around each man that he cannot leave; but within its vast limits man is powerful and free; so too with peoples.” He seems to suggest that a historical endpoint is destructive of the inner freedom of the human soul, which is essential to human greatness. If we must encourage progress to resist other intellectual movements endemic to democracy, such as pantheism, then the task for American statesmen is to reconcile indefinite perfectibility with individual freedom, protecting the latter from theories and historical accounts that would motivate attempts to constrict it.

Dr. Eric Schmidt is an Associate Professor of Political Science at Kentucky Wesleyan College, specializing in political philosophy and American political institutions. He holds a Ph.D. in Political Science and a Master’s in Philosophy from Louisiana State University. His current research focuses on the intersection of political philosophy, civics, and the digital transformation. As head of the Political Science and Legal Studies programs at KWC, Dr. Schmidt enjoys serving as an advisor to students interested in law and public service careers. He resides in Owensboro with his wife and daughters.

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Essay 53: “How Religion In The United States Makes Full Use Of Democratic Tendencies”, “The Progress Of Catholicism In The United States” & “What Causes The Minds Of Democratic Nations To Include Toward Pantheism” (Vol. 2 Pt. 1 Chs. 5-7)

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Guest Essayist: Jacob Wolf

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 417 – 426 of this edition of Democracy in America.

On The Benefits of Religion to Democracy

Upon visiting the United States, De Tocqueville was enamored of the fact that lovers of liberty and democracy were not enemies of religion, but rather its sincere friends. This was not the case in France, where religion was so bound up with the aristocracy and the monarchy that the French revolutionaries sought to topple the church along with disfavored hereditary institutions. In America, religion and liberty—faith and democracy—found themselves on the same team.

This is important because De Tocqueville believes that religious beliefs are profoundly determinative of human action. Such beliefs influence nearly everything about a person’s conduct: “There is almost no human action … that does not arise from a very general idea that men have conceived of God, of his relations with the human race, of the nature of their souls, and of their duties toward those like them.” For De Tocqueville, politics is downstream from theology.

Americans’ religiosity is boon to their political life, according to De Tocqueville, because religion counterbalances some of the innate problems of democracies. For example, De Tocqueville says that Americans are Cartesian skeptics, prone to doubt all that is not the product of their individual reason. Yet, one cannot be a thoroughgoing skeptic because one cannot consistently doubt everything without achieving large-scale “disorder and impotence,” so there must be a bedrock of ideas resistant to the corrosive acid of skepticism.

By providing individuals with good, ready-made answers to primordial and perennial questions, religion can neutralize doubt’s corrosive effects and provide this bedrock. Absent these fundamental convictions, one would find a society composed of “enervated souls”—individuals paralyzed by “doubt,” “limitless independence,” and “perpetual agitation.” For, if all is thought to be in flux, then nothing is stable and individuals lose their sense of human agency; however, in a world of fixed first principles, individuals have the stability necessary to be responsible moral agents capable of citizenship and self-government.

Not only does democracy precipitate doubt, it can also generate in individuals a tendency to isolate themselves from their fellow citizens (“individualism”) and promote a love of material well-being (“materialism”). Here too religion has a role to play: “There is no religion that does not place man’s desire beyond and above earthly goods and that does not naturally raise his soul toward regions much superior to those of the senses…. Religious peoples are therefore naturally strong in precisely the spot where democratic people are weak.” In other words, religion turns one’s eyes upward and outward—towards eternal verities and the well-being of the community.

But, De Tocqueville warns, religion should be careful to content itself with furnishing metaphysical beliefs and moral principles and not venture into “political maxims, civil and criminal laws, and scientific theories.” For this reason, De Tocqueville approves of the American institutional separation between church and state (even if he thinks it impossible to separate religion and politics). In this situation, religion can preserve its moral authority without engaging in partisanship.

Because De Tocqueville approves of American religion, he has some tips for preserving its influence in America:

First, religion should be careful not to needlessly multiply the “external forms” of religion—i.e. the rituals, ceremonies, and aesthetic elements of faith. For a democracy, the moral and dogmatic core of religion is more important than its particular presentation or its secondary doctrines. Catholicism, Tocqueville thinks, might take hold in democracies if it focuses on the central moral aspects of religion and downplays the formal elements. Second, while religion must rein in “materialism,” it should not seek to destroy it. The love of well-being is an “indelible feature” of democracies; one can temper it, but never “subdue it entirely.” If religion should ever seek to eradicate acquisitiveness, one should not be surprised to find individuals ridding themselves of religion rather than their material goods. Third, because democracy so depends upon common opinion, religion should only infrequently inveigh against it. Of course, religion must be able to call people to account; however, if religion presents itself as the enemy of public opinion or the exclusive province of the few, it will forfeit its broad public authority.

In all these things, one sees a fine line: religion must combat the defects of democratic society, but not too intensely. Religion must preserve the best of democracy, subtly rebuke its excesses, and somehow maintain public approval. Such is the delicate balance in which every church, pastor, and congregation in America still find themselves.

De Tocqueville famously predicted that American Protestants would inevitably gravitate towards opposite poles: Catholicism or Unitarianism. Here, De Tocqueville was wrong. However, his error in prediction actually proved his deeper analysis to be true, for Protestantism—especially Evangelical Protestantism—exploded in the years after De Tocqueville’s visit to the United States precisely because it could affirm democracy and yet combat its excesses.

In the final analysis, a religion is good for democracy if it can elevate the human spirit, incline individuals to fulfill their moral and civic duty, and forestall materialism. De Tocqueville is fairly confident that most Christian denominations fulfill these goals; however, one “religion” conspicuously does not: pantheism. Because pantheism conflates creator and creation, it can offer no transcendence, only immanence. There is nothing in pantheism to elevate the human spirit to a higher level, and therefore De Tocqueville urges all good people “to unite and do combat against it.”

 

Jacob Wolf is Assistant Professor of Politics and a Founding Faculty member of the University of Austin (UATX). He was previously the 2020-2021 Barry Fellow of the James Madison Program at Princeton University. He received his PhD in Political Science from Boston College. His scholarly and popular writings have appeared in The Political Science Reviewer, Perspectives on Political Science, Interpretation, Public Discourse, VoegelinView, and Modern Age Online.

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Essay 52: “Why The Americans Show More Aptitude And Taste For General Ideas Than Their Forefathers The English” & “Why The Americans Have Never Been Enthusiastic As The French For General Ideas In Political Matters” (Vol. 2 Pt. 1 Chs. 3-4)

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Guest Essayist: Michael Greve

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 411 – 416 of this edition of Democracy in America.

Any society, De Tocqueville explains in Part I of the Second Volume of Democracy in America, must be “brought and held together” by some shared ideas. This implies that people must accept a great many ideas on the authority of others. Intellectual authority there must be; the questions concern its source, its extent, and what one might call its tenor or tone.

The answers, De Tocqueville writes, will depend on political conditions. Members of aristocratic societies—England’s “ancient constitution,” pre-revolutionary France—will be drawn to the opinions and prejudices of their own class or estate. Not so in democratic societies, whose members suppose that no one is very different from, let alone better than, anyone else. Folks will want to make up their own minds. But they cannot do so all the time, and on everything, for sheer lack of time. There is something liberating about thinking for oneself, but also something dangerous. “As citizens become more equal and alike, the penchant of each to believe blindly a certain man or class diminishes.” Correspondingly, “the disposition to believe the mass is augmented.” Public opinion—what the mass of citizens believes and propounds without much thought—will rule. What begins as man’s liberation from “self-inflicted immaturity” (Kant, not De Tocqueville) may prove a “new face of servitude.”

The important Chapter 3 of De Tocqueville’s characteristically paradoxical, ambivalent inquiry begins on a startling sentence: “God does not ponder the human race in general.” He perceives, “at a single glance,” all members of humanity in all their similarities and differences. Mortals, in contrast, must order a messy world with the aid of “general ideas.” That general condition is a weakness in one way because unlike God, we must resort to generalizations; it is a strength in another way, because we can do so. However, people’s propensity to think and converse in generalities will depend on varying social conditions. Americans, De Tocqueville avers, have more “aptitude and taste for general ideas than their English fathers.” But they are far less “passionate” about those ideas than the French when it comes to “political matters.”

The notion that the “aptitude and taste” for general ideas should differ so greatly even among enlightened nations is sufficiently heterodox to “astonish” even De Tocqueville himself. He traces it to aristocratic or democratic conditions. Under aristocracy, what we now call “class consciousness” will block people’s sight of “the general bond that brings all together in the vast bosom of the human race.” By way of dramatic example, even the most “profound geniuses” of antiquity could see nothing wrong with slavery.

Aristocratic societies share the scorn for abstractions; democratic societies do not. Just as equality of conditions will prompt “each to seek the truth by himself,” so it will “imperceptibly make the human mind tend to general ideas.” Other factors also produce among democratic peoples a taste and passion for general ideas. Some such ideas are the “slow, detailed, conscientious work of intelligence.” Others, though, are the products of intellectual laziness or distraction; and in democratic societies, those ideas will tend to prevail. People’s lives are “so agitated, so active that little time remains to them for thinking.” Thus, while aristocratic societies shortchange general ideas, “democratic peoples are always ready to abuse these sorts of ideas and indiscreetly to become inflamed over them.”

How inflamed? The passion for incendiary ideas, De Tocqueville writes, is much more pronounced among the French than in America because it will prevail “only in matters that are not habitual and necessary objects” of one’s thoughts. Businessmen, for example, readily accept facile ideas on politics, philosophy, or the arts—but not on commercial concerns. Likewise, people will be thoughtful and moderate about politics to the extent that they are actively engaged in it. Thus, unlike France’s notoriously centralized system, America’s “democratic institutions, which force each citizen to occupy himself practically with government, moderate the excessive taste for general theories.”

De Tocqueville’s analysis and his reassuring conclusion may leave many contemporary Americans somewhat uneasy. De Tocqueville warned of a great, homogenous mass of people gravitating mindlessly to a single, stifling “public opinion.” In contrast, our public debate is deeply fragmented; and, just as in De Tocqueville’s aristocracy, large numbers of people propound “their” truths and -isms in accordance with their identity as members of one group or another. Many citizens would surely welcome a bit more cohesion and common sense.

One wonders, moreover, whether Americans drift toward general ideas of the wrong, lazy kind because they are just too busy with their quotidian concerns—or whether the disturbingly numerous venues that amplify ideological abstractions (TikTok, say, or certain college campuses) are practically built for people with way too much time on their hands. And is it really (still) true that our democratic institutions force us to engage with politics at a practical level—or has the nationalization of our politics triumphed over a localized, parochial but practical politics that would teach engaged citizens a healthy distrust of grand schemes and ideological cant? Could these things be related, such that an excess of leisure, coupled with a lack of meaningful opportunities to engage with the humdrum tasks of making public affairs work, pulls otherwise sensible people into enthusiasms and half-baked “general ideas”?

Michael Greve is the author of The Upside-Down Constitution (Harvard UP, 2012), as well as several other books and numerous law review articles, editorials, book reviews, and blog posts. He is a frequent speaker for professional and scholarly organizations and has made many appearances on radio and television. Before joining the law school faculty, Professor Greve served as John G. Searle Scholar at the American Enterprise Institute (AEI), where he specialized in constitutional law, courts, and business regulation. Prior to joining AEI, Greve was founder and director of the Center for Individual Rights, a public interest law firm specializing in constitutional litigation.

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Essay 51: “The Americans’ Philosophic Method” & “The Principal Source Of Beliefs Among Democratic Nations” (Vol. 2 Pt. 1 Chs. 1 & 2)

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Guest Essayist: Michael Johnson

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 403-410 of this edition of Democracy in America.

Democracy in America: What We Learned from a French Aristocrat Long Ago

“I think there is no country in the civilized world where they are less occupied with philosophy than the United States.”

Alexis de Tocqueville, Volume II Chapter 1, Democracy in America

Alexis de Tocqueville, the son of French aristocracy, journeyed to America at the ripe old age of 25 originally to assess its prison system that was considered a new progressive approach to criminal justice. His real interest, however, was in America itself, the birth of the new Republic, how it was faring and what distinguished it from the events in European nations.

A man of frail voice, fragile body but clearly of expansive mind and taste for adventure traveled to America with Gustave de Beaumont, described as his best friend, who he met at the Court of Law at Versailles. That’s where he also met his future wife, Mary Motley. The French political scientist, sociologist and historian and his friend Beaumont stayed in America for six months on their first visit in 1834 and four months on their second a year later.

“He was shocked by what he saw,” Pete Peterson of Pepperdine University, recently told a Constituting America audience. Peterson also says he found freedom, equality of conditions, people starting from nothing, gaining wealth and back again, opportunities to improve their station in life. De Tocqueville, he said, was impressed by American individualism but also by the sense of good that comes from collective enterprise. Americans were joining together to build roads and schools, join civic organizations, establish churches and aid one another, without the intrusion of government.

What came of the journey was a two-volume tome entitled Democracy in America published in 1835 and 1840. The first volume is mostly about the land itself, the people, how they lived and collaborated in the governance of their larger cities and small towns. The second volume is more a study of the cultures and philosophies underpinning the new Republic and the unique character of the people and their application of democratic rule, using Europe as the base of comparison.

It was an important literary achievement in the 19th Century. More than another century later, it is considered a masterful, panoramic view of the new nation, its culture, social order and its people. The new nation’s boundaries then stretched East to West from the Atlantic to the Mississippi River and North to South from Maine to Florida.

The adventure took the traveling duo as far west as Saginaw, Michigan along crude and rugged, at times impassible roads, untamed wilderness and bad weather, sometimes requiring Indian guides. American settlers were still carving a new life out of the wilderness. They were taken by the dichotomy of Eastern cities and Western wilderness. They had similar observations first exploring the Northern states and later crisscrossing the rural South, where they were disturbed by slavery.

De Tocqueville’s observations of political life are especially poignant. The colonists who planted the seeds of democracy had rare and expansive opportunities to experiment with forms of government and social order without the baggage of old-world Europe’s deeply embedded monarchial rule, caste systems, dogmatic religious orthodoxy, and staid and constrictive family traditions. The Founding Fathers borrowed a good deal from Europe’s period of enlightenment in the 17th and 18th centuries, and, as De Tocqueville observed, brought the the new ideas of Voltaire, John Locke, John Stuart Mill and other philosophers to the drawing table as they formed their own philosophy for establishing the new nation.

Yet De Tocqueville said what he discovered to his surprise 60 years after the founding was little pre-occupation with philosophy. Let him explain:

“The Americans have no philosophic school of their own and they worry very little about all those that divide Europe; they hardly know their names. It is easy to see, nevertheless, that almost all the inhabitants of the United States direct their minds on the same manner and conduct them by the same rules; that is to say, they possess a certain philosophic method, whose rules they have never taken the trouble to define… [they] take traditions only as information, and current facts only as a useful study for doing otherwise and better; to seek the reason for things by themselves and in themselves alone, to strive for a result without letting themselves be chained to the means…these are the principal features that characterize what I shall call the philosophic method of the Americans.”

What De Tocqueville found in America was a system of governance founded on the principles enunciated in the Declaration of Independence and the virtues of individualism, egalitarianism, secularism, Lassez-Faire, and populism. He saw those precepts manifested in limited, representative government, civil liberties, the protection of individual rights, general ownership of property, and what he called “self-interest rightly understood.”

Self-interest is not selfishness, according to De Tocqueville. His references indicate that individuals exercising reason can determine what is in their best interests when dictated by virtue and that rightly understood, self-interest encompasses the good one can do for another and the binding good that comes from social interaction, charity, fellowship and mutual security.

Virtues, he cautioned, can be turned into vices if abused and misapplied. In America he believed there is that risk if, for example, majority rule becomes the tyranny of the majority or if citizens through the dereliction of their civic inclination toward interdependence become too dependent on government for their needs.

So much of what De Tocqueville saw in America is still America today yet so much is different.

That may be a simplistic observation, but it has profound meaning. It speaks to the genius of the Founding Fathers who created a government and inspired a way of life that did not just endure, but became a catalyst for change around the world. It was an experiment that has never stopped being experimental, always changing, always unleashing more of the promise of people who have the freedom to pursue their self-interest, rightly understood.

Johnson is a former journalist, member of the White House staff under President Gerald Ford, Chief of Staff to House Republican Leader Bob Michel. He has been active in a number of non-profit organizations and served as a media consultant, lobbyist and co-author of two books: Fixing Congress and Surviving Inside Congress. He is married to Thalia Assuras, has five children and four grandchildren.

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Essay 50: Author’s Note To Volume 2

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Guest Essayist: Tony Williams

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 379 (Start at heading “On Republican Institutions”) – 384 (Stop at heading “Some Considerations…”) of this edition of Democracy in America.

French aristocrat and government official, Alexis de Tocqueville visited the United States for a nine-month period during 1831-1832. He traveled with his companion, Gustave Beaumont, to study penal reform. 

The United States during the 1830s and 1840s was experiencing a democratic revolution with the rise of universal male suffrage for white men in most states. Moreover, De Tocqueville visited toward the end of the presidency of Andrew Jackson. Jackson symbolized the rise of the “common man” and democracy, though the democratic currents were caused by more than just who occupied the White House. 

The democratic ethos was spreading throughout America in countless ways. The republican institutions guaranteed greater political participation than anywhere in the world at the time. They engaged in self-governance primarily in small towns and communities as farmers and artisans. The Second Great Awakening was characterized by intense religious ferment and led to the rise of new Christian denominations, the democratization of religion, and strong streaks of religious individualism and emotional religiosity. Americans were enjoying the prosperity of a growing market economy, equal opportunity, and social mobility. They were also geographically mobile, moving further westward in search of land, new opportunities, and often, a new start. 

Thus, it is perhaps not surprising that when De Tocqueville wrote his two volumes of his masterpiece, Democracy in America, published in 1835 and 1840 respectively, he focused on both American institutions and the American character. 

In his “Note” to Volume II in Democracy in America, De Tocqueville describes the purpose of the first volume in a nutshell. “The Americans have a democratic social state that has naturally suggested to them certain laws and political mores.” As a result, he studied American institutions, popular sovereignty, and the geography of the United States in shaping the political practices and beliefs of Americans. 

In the “Note,” De Tocqueville further explains his purpose in Book II by giving readers a small taste of its themes. He states that democracy has “given birth to a multitude of sentiments and opinions” among Americans that differ from the aristocratic societies of Europe. In the second volume, he will be examining those democratic sentiments and opinions that exist in America especially in forming voluntary associations. 

De Tocqueville states that, “I thought that many would take it upon themselves to announce the new goods that equality promises to me, but that few would dare to point out from afar the perils with which it threatens them. It is there principally at those perils that I have directed my regard.” 

Therefore, De Tocqueville will make observations on the ideas and effects of the principle of equality to which Americans are drawn and the equality of condition that Americans experienced to a much greater degree than Europeans. However, as he notes above, he is interested in the promise and the perils of equality. 

The dark side of that egalitarianism is a passion for equality, especially an equality of outcomes that endangers liberty. In other words, Americans may too willingly surrender their freedoms for equality. We can observe many examples in the modern world from how progressive taxation threatens freedom of property, the regulatory state can endanger liberty, and DEI aims of equality of outcomes or equity over equal opportunity. 

De Tocqueville grappled with the complexities of American democracy and the American character in a thoughtful and lasting manner that is still relevant today. Perhaps he and his masterpiece can be a guide to examining ourselves and the relationship of liberty and equality in America.  

Tony Williams is Senior Teaching Fellow at the Bill of Rights Institute; a Constituting America Fellow; author of Washington and Hamilton: The Alliance that Forged America, and Hamilton: An American Biography.

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Essay 49: Volume 1 Conclusion

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Guest Essayist: Troy Kickler

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 379 (Start at heading “On Republican Institutions”) – 384 (Stop at heading “Some Considerations…”) of this edition of Democracy in America.

Democracy in America, Conclusion 1

A political scientist, historian, and politician, Alexis de Tocqueville (1805-1859) traveled the United States in 1831. He and fellow traveler Gustave de Beaumont spent nine months traversing the expanse of the 1830s United States. They wanted to learn more concerning the young nation. Their observations were published in two volumes titled Democracy in America. The first volume was published in 1835 and the second in 1840.

Even though De Tocqueville identified America as a “republican government,” he remained impressed by the nation’s democratic features; that is, America had more equal, social conditions than its European counterparts. Although more than a few modern-day Americans might disagree, De Tocqueville remarked that all had a “similar condition” and held onto common “customs and opinions to which that social condition has given birth.”

The Frenchman begins his Conclusion to Volume 1 by reminding readers not to let the particulars distract from the whole. In other words, some people cannot see the forest because of the trees.

For starters, he considers the United States a “magnificent inheritance,” and he regrets that his native country did not establish a significant stronghold in North America.

In his first volume, De Tocqueville was somewhat prophetic. Almost a decade and half before the Mexican-American War (1846-1848), he predicted conflict between the two countries. There was a lot of what De Tocqueville described as “uninhabited land” in the west. He anticipated the “Anglo-Americans” to take “possession of the soil and establish such institutions” that newcomers and legal owners would eventually find the land “quietly settled.” Americans were what De Tocqueville called “swift pioneers.” In particular, he discussed the American settlement of Texas. He erroneously thought that all Mexicans would be removed from Texas. The Tejano existence, for one, did not occur to him.

He also predicted disagreements between America and Russia, even before the Cold War and current events. In 1831, the two nations, to him, were sleeping giants who had remained off of Europe’s radar. A lengthy quote is illustrative. Remember, this viewpoint was expressed in the 1830s.

There are two great peoples on the earth today . . . the Russians and the Anglo-Americans. Both of them have grown larger in obscurity; and while men’s regards were occupied elsewhere, they have suddenly taken their place in the first rank of nations, and the world has learned of their birth and of their greatness almost at the same time.

De Tocqueville believed most other nations’ growth had stopped—not so, for the United States and Russia. According to the Frenchman, the nations achieved greatness by different means. The Americans struggled against nature’s obstacles while the Russians confronted men. In De Tocqueville’s estimation, the American conquest was via the plowshare while the Russians conquered by the sword.

Although De Tocqueville foretold that both nations would eventually “sway the destinies of half the globe,” America and Russia had different means to greatness. The Atlantic Ocean divided England from the United States. With a French perspective, De Tocqueville refers to “Anglo-Americans,” yet he did so in a positive way. De Tocqueville is redundant during the last few pages of his Conclusion, though, but in essence, he writes:

The [Anglo-American] relies on personal interest and allows the force and reason of individuals to act, without directing them. The second in a way concentrates all the power of society in one man. The one has freedom for his principle means of action, the other servitude.

Remember, De Tocqueville observed American culture in 1831. His report (the first volume) was published in 1835.

The Atlantic Ocean divided England from the United States. De Tocqueville believed (and hoped) Anglo-Americans would identify with those across the ocean as more similar than different. In sum, despite prior differences between the two nations, resulting in prior actual and diplomatic wars, he forecasted that industrialization and technology and transportation improvements would unite rather than divide the two countries.

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

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Essay 48: A Few Reflections On The Reasons For The Commercial Greatness Of The United States Influenced by their Commerce (Vol. 1 Pt. 2 Ch. 10, Subch. 5)

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Guest Essayist: Andrea Criswell

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 379 (Start at heading “On Republican Institutions”) – 384 (Stop at heading “Some Considerations…”) of this edition of Democracy in America.

A Few Reflections On The Reasons For The Commercial Greatness Of The United States Influenced by their Commerce

“Hope deferred makes the heart sick” states the Psalmist, “but a longing fulfilled is a tree of life”. This sound wisdom states the human need for opportunity, advancement and productivity. All humanity yearns forward, organic in nature. Immobility is a death sentence to the human race. Alexis de Tocqueville, in Democracy in America, described American commerce related to its organic nature as one that is always moving forward. Commerce in America, as a factor of American exceptionalism, demonstrated unique qualities birthed out of the very nature of those called Americans. He found that geographic advantages, intellectual superiority and moral people were the three great winds blowing on the exceptional nature of Americans and commerce.

Undeniably, the American continent has geographic advantages unseen in the world. “There is no people in the world that can offer to commerce deeper, vaster and safer ports than the Americans.” Risking danger, American ships “neglected precautions” and pushed their sailors further without creature comforts at the prospect of commercial gain. This was one dynamic De Tocqueville recognized as an “American trait” in the colonies before and after Independence. Living in a temperate zone, American colonies doubled in population in nearly twenty-two years. Population growth mirrors hope. The American Dream was realized and taken advantage of by common people. For the American, navigable rivers, a climate for agricultural diversity, and fertile soil allowed for expansion. The limitless opportunities afforded by nature were embodied in the hearts and minds of the American. For the one willing to learn, to risk, and to work hard, the North American continent had endless possibilities.

European industry, in De Tocqueville’s time, far advanced American output, but was lacking what the individual American held in intellectual superiority. He witnessed that the American’s production capacity was more general, but the sphere of his intellect was more extensive. The American was not held to prejudices in profession nor by lag in progress, but was motivated by his sheer will to survive in the world that he built. This created, “an irresistible impulse on the national character.” Therefore, the mentality of private industry, of self motivation, was seen in every task of the American. No ceiling existed for the Americans. He further elaborated, “I think that nations, like men, almost always indicate the principal features of their destiny in their youth. When I see the spirit in which the Anglo-Americans carry on commerce, the opportunities that they find to do it, the success that they obtain in it, I cannot prevent myself from believing that one day they will become the first maritime power on the globe.” What De Tocqueville was recognizing was American grit. As the new colonists gave way to cultivators of the land, the “taste of well being and the spirit of enterprise” became a key characteristic of those called Americans. The independent, problem solving nature of the American, rivaled any he had seen. He called it intellectual superiority because it represented a person who could do many things. De Tocqueville honored it as intelligence, but understood that its fuel was morality.

Moral steadfastness. This grit found in the American people was a reflection of the transformation required by the opportunity in front of them. Never before had a people been given an opportunity quite like the American people and they embodied the time. They had already created political doctrines that other nations were borrowing. They “exerted a great moral influence over all the peoples of the New World.” This tilled the soil for enlightened thinking, or personal advancement among individuals. All people, created equal, while not in full practice, were stirring in the hearts and minds of Americans. This enlightenment was reflected in commerce, allowing Americans to participate in not only the wealth of their own land, but also that of Europe and beyond. Morality, in this light, referred to a person, who was willing to give all they had for the hope of success. “Skin in the game” combined with hard work in America was a harvest for all.

Commerce, forward motion, a successful organic movement, described America to a “t”. When the perfect soil, climate and worker collide, commerce is a natural progression. The soil and climate offered in America, both literally and figuratively, could only be taken advantage of by the one whose moral compass directed him towards hard work. Commerce would be birthed out of this mentality. Take what is available and sacrificially give all you have for the possibility of more. The hope of the American was void of victimization, but rather full of effort and an undying grit to succeed. What Europe did “piercing the darkness of the Middle Ages with its own efforts,” America did in the river valleys, plains, deserts and mountains of the North American continent, and all peoples, both north and south of its boundaries, were influenced by their commerce.

 

Andrea Criswell is a wife, mother, and homeschool teacher in the northwest Houston area. Graduating from both Texas Tech University and Asbury Theological Seminary, she teaches Christian Worldview classes. Her passion is helping high school students become responsible young adults who critically think and learn how to solve problems.

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Essay 47– “On Republican Institutions In The United States: What Are Their Chances of Longevity?” (Vol. 1 Pt. 2 Ch. 10, Subch. 4)

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Guest Essayist: Joerg Knipprath

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 379 (Start at heading “On Republican Institutions”) – 384 (Stop at heading “Some Considerations…”) of this edition of Democracy in America.

What Is The Difference Between the U.S. Republic and Others? 

There is an intriguing passage in this essay about the difference between the American understanding of republican government and the European approach. De Tocqueville describes contrasting assumptions about the nature of rights and political accountability and affirms the connection between republican government and permanent and transcendental norms. Americans of his time defined a republic as based on majority control. This is the classic “republican principle” of the vote and rule by the majority. Of course, the delicate question is “majority of whom”? This is where republics over the millennia have differed, often profoundly.

That majority control is typically not exercised directly, as might occur in a townhall meeting, but through designated bodies of representatives.
“What one understands by republic in the United States is the slow and tranquil action of society on itself. It is a regular state really founded on the enlightened will of the people. It is a conciliating government, in which resolutions ripen for a long time, are discussed slowly and executed only when mature.”
James Madison, among many other supporters of the Constitution, had offered a similar description of American republican government during the ratification debates in the late 1780s.

Presumably addressing his remarks to the intellectual and political heirs of Rousseau and of various radicals of the French Revolution, De Tocqueville acidly describes the European version of republicanism. “But we in Europe have made strange discoveries. A republic, according to some among us, is not the reign of the majority, as has been believed until now, it is the reign of those who are strongly for the majority ….”

Note the difference. American republicanism manifests itself in gradual change, based on the people’s felt needs. The process starts organically with the reality of life’s conditions experienced by many people at the time and is realized and refined through a deliberate and consensus-seeking political structure. It is broad-based, practical, and incremental, befitting the American character as DeTocqueville appraised it in various essays.

European, here meaning French, republicanism is that of a gnostic elite or a collection of individuals which arrogates to itself the legitimacy to represent and speak for the people. “It is not the people who direct these sorts of governments, but those who know the greatest good of the people …” That political elite rules and decrees in the name of the people but is driven by ideology to remake society. It is a top-down government. As has been said mockingly, in such a system, if reality conflicts with ideological orthodoxy, it is reality which is in error.

American republicanism starts with the rights and dignity of the individual, as professed in the Declaration of Independence. Even a political majority must stay within certain limits. “What one calls a republic in the United Statuses is the tranquil reign of the majority. The majority, after it has had the time to recognize itself and to certify its existence, is the common source of powers. But the majority itself is not all-powerful. Above it in the moral world are humanity, justice, and reason; in the political world, acquired rights.” Such limits are expressed in the federal Bill of Rights and its counterparts in state constitutions. More significantly, these limits are part of a cultural patrimony that was passed through generations, having been forged in the genesis of the various colonies and refined by the experience of life in a new world far from Europe. Self-government within the British constitution, the transition to independence, and the post-Revolutionary War constitutional turmoil produced vigorous and intellectual disputations about the nature and role of government and the protection of individual rights.

While they disagreed about some important particulars of economic and political policies, American republicans, whether New England Puritan, Southern Agrarian, or National, shared a belief in certain, to them self-evident, points about what makes republics successful. As De Tocqueville accurately details “Republicans in the United States prize mores, respect beliefs, recognize rights. They profess the opinion that a people ought to be moral, religious, and moderate to the degree it is free.” Not only sermons of well-known preachers, but speeches of political leaders and letters and other writings even of ordinary citizens, attested to those convictions.

Not so European republicans. De Tocqueville derides their sophistries, such as the people’s “general will” represented in an all-powerful legislative body controlled by a small coterie of demagogues, as a “happy distinction that permits one to act in the name of nations without consulting them and to claim their recognition while riding roughshod over them. [For, elitist European republicans, a] republican government is, furthermore, the only one in which one must recognize the right to do everything, and which can scorn what men have reported up to the present, from the highest laws of morality to the vulgar rules of common sense.”

The term republic has long defied easy definition, and De Tocqueville provides no simple resolution. However, the contrast between the essence of American republicanism and his description of the First French Republic and its ideological heirs rings true. Those heirs include the former USSR, in which acronym the “R” signified it as a union of “republics.” Communist China styles itself a “People’s Republic.” When even a cultish regime as totalitarian as that in North Korea can assume the designation of “republic,” one has traveled far from the American founding generation’s understanding of the term. At least some Americans sense unease at the direction American culture and politics have taken over the past decades and wonder whether their republic is moving towards the elitist European conception. It is, in the end, not the self-applied label which makes a republic, but a culture of morality, religion, and political moderation, along with a nurtured spirit of liberty among the people.

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.

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Essay 46: A Few Remarks On The Present Day State And The Probable Future Of The Three Races Which Live In The Territory Of The United States (Vol. 1 Pt. 2 Ch. 10, Subch. 3)

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Guest Essayist: Christopher Burkett

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 348 (heading and 2 lines) – 379 (top paragraph) of this edition of Democracy in America.

American Union Will Last? What Dangers Threaten It?

Near the end of Volume One of Democracy in America, De Tocqueville discusses the possible dangers that might, in the future, lead to the dissolution of the American federal Union. If the amount of time De Tocqueville takes to discuss this topic is an indication of its importance, he must have taken this issue very seriously, as it is one of the longest chapters in the book. In fact, it had been an issue of utmost concern to President George Washington in his “Farewell Address” (1796), and of a young Abraham Lincoln in his 1838 address titled “The Perpetuation of Our Political Institutions,” delivered shortly after the first volume of Democracy in America was published.

De Tocqueville begins by observing that, in the long run, the survival of the Union depends heavily on how long the delicate federal balance of powers and responsibilities between nation and states can be maintained. If that balance tips too far toward the national government, the states might become irrelevant; if it tips too far toward favoring state sovereignty over the national authority, the states might disassociate and thus break up the Union. This problem seems unavoidable because of the very nature of the federal Union, which sought to combine thirteen mostly sovereign and independent states into one nation under a national government.

The framers of the Constitution, De Tocqueville notes, “had not been charged with constituting the government of a unitary people, but with regulating the association of several peoples.” In other words, the founders faced the challenge of creating a single nation comprised not of a unitary people but of confederated peoples distinguished by several distinct characteristics. The problem is this: “Unitary peoples are therefore naturally brought toward centralization” (or strengthening the importance of the nation), and confederations toward dismemberment.” Or, to put it differently, a unitary people feels a kind of “patriotism” toward the nation, whereas confederated peoples tend to feel more “patriotism” toward their particular state, region, or section of the Union.

What makes the peoples in the American Union so different and, therefore, inclined to identify more as members of their state or section, rather than as Americans in the larger sense? Tocqueville points out many of the same differences that were emphasized by the Antifederalist Brutus in his essays opposing ratification of the Constitution in 1787-88. De Tocqueville notes the number of diverse commercial interests among the states and sections of the Union, especially between the Northern and Southern states, but also between the original Eastern states and the newer states of the West. De Tocqueville, however, seems to place more stress on different ideas, opinions, and passions among the states and sections – especially those that shape the mores, in fact the very character of the peoples inhabiting those sections.

To illustrate this potentially disruptive difference of character, De Tocqueville writes on how the institution of slavery “has modified the character of the inhabitants of the South and given them different habits.” Raised to be both self-reliant but needing the voluntary cooperation of his fellow citizens, the “American of the North” is more “patient, reflective, tolerant, slow to act, and persevering in his designs.” He is “more active, more reasonable, more enlightened, and more skillful.” The American of the South, having been raised with the benefit of slaves serving his material needs, “loves greatness, luxury, glory, noise, pleasures, above all idleness,” and is “more spontaneous, more spiritual, more open, more generous, more intellectual, and more brilliant.” The man of the North has the characteristics of the middle class, whereas the man of the South “has the tastes, prejudices, weaknesses, and greatness of all aristocracies.” De Tocqueville’s point is that these powerful differences in character tend to divide rather than unite citizens as one American people. “Slavery therefore,” De Tocqueville writes, “does not attack the American confederation directly by its interests, but indirectly by its mores.”

The localization of slavery in the South does, however, potentially threaten the survival of the Union in a political sense. With westward expansion, the centers of influence shift from the original states of the East (both North and South) to the new states of the West. With the addition of new states – and therefore new representatives in Congress – the delicate balance of political power between free and slave states is jeopardized. The people of the South especially see how this affects the institution of slavery in their states in the future. The South, De Tocqueville observes, “knows that federal power is escaping it, that each year sees the number of its representatives in Congress diminish and those of the North and West grow – the South, populated by ardent and irascible men, is irritated and restive.” In this De Tocqueville sees the tendency of the Southern states to tend more and more toward asserting the importance of states’ rights or sovereignty, as evidenced by the nullification crisis in South Carolina in 1832. Thus De Tocqueville predicts that if the Union is dissolved, it will likely be by one of two means: either by the abrupt secession of states from the Union, or by a gradual reversal over time toward complete state independence.

Christopher Burkett is Associate Professor of Political Science at Ashland University and Academic Director of the Ashbrook Scholar Program and Academies. He is editor of Ashbrook’s 50 Core American Documents, and has written on the American Founding, Progressivism, and American Foreign Policy. He holds a B.A. from Ashland University, and received his M.A. and Ph.D. from the University of Dallas.

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Essay 45: De Tocqueville– “A Few Remarks On The Present Day State And The Probable Future Of The Three Races Which Live In The Territory Of The United States” (Vol. 1 Pt. 2 Ch. 10, Subch. 2)

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Guest Essayist: Horace Cooper

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 326 – 348 (almost the entire page down to the next heading) of this edition of Democracy in America.

De Tocqueville’s View On Race Relations In The United States

Alexis de Tocqueville uses his keen insights and talents for observation to focus on the question of slavery and blacks in the newly created United States of America.

Near the end of his essay on this topic he once again demonstrates the prescience and perception that he has revealed throughout the book “Democracy in America”. In this essay, he predicts slavery’s demise.

He explains at the end of the essay, “… whatever the efforts of Americans of the south to preserve slavery, they will not succeed at it forever….in the midst of the democratic freedom and enlightenment of our age [slavery] is not an institution that can endure.”

Indeed, slavery ended in the US. It proved incompatible with the remarkable ideas of our founders including the foundational principle that “All Men are Created Equal.” The end came about as the result of the most consequential war that this nation had ever experienced. Greater and more deadly for Americans than World War I and World War II. Certainly, greater than the losses of the Revolutionary War. The Civil War cost more American lives than any war the US has ever been involved in.

Ultimately, freedom and abolition came at a very high price. 160 years later we’d all be well served to remember that cost. After WWI and WWII America made peace with her enemies. Particularly after the evils committed by Japan, Germany and Italy our nation’s reconciliation abilities are quite pronounced. Today Japan is a leading trading partner. Germany and Italy are too. In fact, many Americans proudly proclaim their desire for German and Italian automobiles as a sign of their financial success in life.

After armed conflict in Afghanistan and Iraq, America poured 100s of billions of dollars to help rebuild.

But ironically, today there is a growing movement to foment discord over a military conflict that occurred more than a century and a half ago – the Civil War. This wrongheaded approach isn’t just antithetical to who we are as Americans, but it hinders our efforts to progress as a nation.

Reconciliation is who we are. It is part of the American identity. And in fact, the American identity is the focus of De Tocqueville’s Democracy in America.

Notably, De Tocqueville doesn’t take on the persona of an abolitionist in this essay. He attempts to do what he had done in the other essays. Observe and report.

When he wrote this essay, De Tocqueville sought to explain the curious phenomenon of the existence of a “free” North and a “slave” South. One of De Tocqueville’s most trenchant observations is that the race of slaves in the 18th and 19th century created one of the biggest challenges to ending it.

He explains that as a concept slavery imposed on any and all races would be easier to abolish precisely because it so directly attacks the notion of the humanity of man – all of them. A slave could be your brother or sister. But having slavery focused on blacks however, while it still denigrates the notion of the equality of man, it doesn’t do so in the same broad manner. He further observes that as a consequence of singling out the slave by race the notion that there is something unique about whites being free and blacks being slaves is easier to maintain. He says by only using blacks for slaves in America, “they made a wound in humanity less large, but infinitely more difficult to heal.” De Tocqueville adds, “the remembrance of slavery dishonors the race and race perpetuates the remembrance of slavery.”

But to De Tocqueville the harm of slavery in America was obvious to even the casual observer. He argued that it explains the culture of industry in the north and the culture of indolence in the South.

Showing just how remarkable the differences in lifestyles are for the North and the South, De Tocqueville describes the dissimilarity of life on both sides of the Ohio river. He explains that the Ohio River – named by native Americans – translates to “Beautiful.”

And indeed, it was.

The climate on both sides of the river he reports was “temperate” and the soil on each side offered “inexhaustible treasures” and yet on one side was Kentucky a “slave” state and the other Ohio a “free” state.

The two sides of the river reveal to De Tocqueville a significant difference in economic and productive activity. Ohio was more prosperous and active. Kentucky was less populated, less developed and more causal about economic activity. This difference provided a practical reason to oppose slavery.

For De Tocqueville, this prosperity and productivity difference is endemic to the existence or lack thereof of slavery. He even suggests that the scope of government activity can be explained by the presence of slavery. For instance, in Ohio, he notes that the state government established a canal between Lake Erie and the Ohio River allowing commerce all the way from Europe to New Orleans.

By contrast, he explains that residents of Kentucky have “neither zeal nor enlightenment” and consequently state activity reflects a more lackadaisical response.

Thus, in De Tocqueville’s theorizing, the existence of slavery is the primary reason why those who lived in the South languished in economic stagnation and those who lived in the North prospered.

On the Ohio state side of the river free men had to exercise agility and use willpower to provide for themselves and their family. And since they could keep the benefits of their efforts, they were more inclined to do so. On the Kentucky side it was the responsibility of slaves to provide for their owners and the owners family. The slaves worked but not with the zeal that comes from personally benefiting from their labors.

He concludes that separate and apart from the morality and dignity of all humans being free, his practical observation was that free men would be more prosperous overall and society would be better served by that prosperity.

But mere practical benefits De Tocqueville feared would not be sufficient to cause the South to end its reliance on slave labor. Cultural mores might be too hard to overcome. He feared that the physical appearance of blacks would mean that integration into the broader society would be a real challenge even if the South considered ending slavery.

In the end, America did live up to its founding principles and ended slavery. This wouldn’t be a shock to De Tocqueville.

De Tocqueville often spoke of America being a melting pot – a place where intermarriage and nonsegregated living became commonplace – but he was apprehensive as to whether that could work to resolve the issue of race relations caused by the existence of race-based slavery.

Indeed, there are those today who are “racialists” who use the physical appearance of people to divide Americans – some for financial gain and others for political gain.

Notwithstanding these efforts, here in the 21st century De Tocqueville might be quite impressed with the ability of Americans of all races to live together in harmony.

Today in a country by size the 3rd largest on the planet, nearly 20% of all US marriages are interracial. The US is among the more diverse nations on the planet. According to the US Census Bureau, Asians were the fastest growing ethnic group last year. And as of 2017 some 15% of all children born were mixed-race. On the whole America has demonstrated quite the ability to thrive together despite the existence of large ethnic groups.

In conclusion, De Tocqueville recognized the ills of slavery and how it contradicted the values of our founders. He saw both practical and philosophical rationales for it to end. He takes care to note that his traveling companion Gustave de Beaumont (Goose-tav DE Boo-mon) was preparing a book on the status of blacks in the US which De Tocqueville heartily recommended.

America was created by the adoption of an amazing concept – the equality of all men and self-government by its citizens. So fascinated was De Tocqueville he traveled to America to study it. Even while seeing the evils of slavery, De Tocqueville could see so much of the wonder of this magnificent plan of a republic governed not by rulers but by citizens. His hopefulness ultimately has been borne out.

We have a remarkable and enduring republic. But, as Benjamin Franklin warns – only if we keep it.

Horace Cooper is a senior fellow at the National Center for Public Policy Research and chairman of Project 21 – the black leadership network

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Essay 44: De Tocqueville: “A Few Remarks On The Present Day State And The Probable Future Of The Three Races Which Live In The Territory Of The United States” (Vol. 1 Pt. 2 Ch. 10, Subch. 1)

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Guest Essayist: Robert Pence

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 302 (bottom half) – 325 of this edition of Democracy in America.

Democracy in America recounts Alexis de Tocqueville’s reflections on his extensive travels in America. In the chapter under discussion (Volume 1, Part Two, Chapter 10), he considers the present and probable futures of the three races [the white man, the Negro and the Indian] that inhabit the territory of the United States. De Tocqueville found the three races to be naturally distinct and inimical to each other. Fortune had gathered them together and mixed them without the ability to intermingle, to the end that each pursued its own destiny. My focus is De Tocqueville’s answer to the question, vis a vis the Indian, “What is to be the future of the Indians?” He saw it as bleak. Very bleak. To the point of extinction.

Before the arrival of the white man in North America, the Indians lived tranquilly in the woods. “The Europeans, after having dispersed the Indian tribes far into the wilderness, condemned them to a wandering and vagabond life full of inexpressible miseries” (305). The author laments that many of the Indian tribes that formerly inhabited New England no longer exist. As Indian nations were forced further into the interior of the continent, large populations of colonists grew in their place. Such dispersal obscured their traditions, interrupted their memories, changed their habits, and increased their needs beyond measure. They became “more disordered and less civilized than they already were” (305). When the Indians lived alone in the woods, they hunted or made what they needed. Such self-sufficiency could not last: hunting alone could no longer satisfy their needs. The more remote tribes living beyond the Mississippi could still hunt the buffalo herds whose migrations could be followed. Famine forced migration. Before them is war. Misery is everywhere.

In 1831, De Tocqueville found himself on the Mississippi River. He saw a large number of Choctaws arrive; they had left their country and sought to cross the Mississippi where they thought they would find the refuge that the American government promised them. Alas, the government very rarely kept them. Half-convinced and half-compelled, the Indians had to move again, and again, to inhabit new wildernesses, where the whites would hardly leave them in peace for ten years (312). Thus, North American Indians had only two options for salvation: war or civilization (312-3). In the South, the “Cherokees and the Creeks, have found themselves almost surrounded by Europeans who, disembarking on the shores of the ocean, descending the Ohio, and traversing the Mississippi, arrived all around them at the same time. They were not chased from place to place, as were the Northern tribes, but, little by little, they were pressed together within narrowing limits” (315). When the Indians succeeded at farming, their white neighbors offered them prices that seemed high to them, but they took the money and moved on.

“President Washington had said…We are more enlightened and more powerful than the Indian nations; it is to our honor to treat them with goodness and even with generosity.’ This noble and virtuous policy has not been followed. “The tyranny of the government is ordinarily added to the greed of the colonists” (320). For sure, many states failed to recognize Indian tribes as independent peoples. [A series of Supreme Court cases in the 1830’s confirms such conduct.]

Unable to protect the Indians, the Federal government transported them to other places and maintained them there; in territory that had already been guaranteed to them. Today [i.e., the 1830’s], the American government does not take their lands away from them, but it allows them to be invaded. In a few years, doubtless, the expanding white population will again be on their heels; then they will again meet the same ills without the same remedies. Thus, the states, by their tyranny, force the savages to flee; the Union, by its promises and with the aid of its resources, makes flight easy. These are different measures tending to the same end.

De Tocqueville opined that the Indians’ right to their lands was never ceded, nor forfeited. The author questions whether the tribes’ troubles began when they were hostile to the United States, and sided with Great Britain during the struggle for independence. [My note: in the Declaration of Independence, the last charge made against the English King recounts “the long train of abuses and usurpations” against the colonists. “He has excited domestic insurrections amongst us, and has endeavored to bring on the inhabitants of our frontiers, the merciless Indian savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes, and conditions.”]

Pushed westward by the white man’s quest for more land and his increasingly frequent breaches of treaty after treaty, the Indians lost their culture, language, and security, their very way of life. De Tocqueville foresaw the inevitable: “the Indian race of North America is condemned to perish” (312).

 

Robert Pence - WikipediaRobert Pence is a Washington D.C. native who attended Maryland University as an undergrad, American University for J.D. and two M.A. degrees, and Yale University from which he received a M.Phil. degree in Italian Language and Literature. President Donald Trump appointed Bob to serve as the American ambassador to Finland; he served in Helsinki from May, 2018 until January, 2021. He served for years on various educational, artistic and philanthropic boards including The Kennedy Center, the Wolftrap Foundation, the World Affairs Council and American University. The is currently a member of boards of George Mason University (VA) and The Gary Sinise Foundation.

He is particularly proud to serve on Gary Sinise’s board where he joins with other equally committed citizens in support of the men and women of the Armed Forces of the United States, police, and first responders.

Mr. Pence’s wife Suzy serves on the National Advisory Board of Constituting America.  The  Pences are generous contributors to Constituting America, and their support has helped make our Online De Tocqueville Study possible. We thank you, Mr. Pence! 

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Essay: 43 The Main Causes Which Tend To Maintain A Democratic Republic In The United States (Vol. 1 Pt. 2 Ch. 9, Subch. 10)

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Guest Essayist: Will Morrisey

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 298 (bottom half of page) – 302 (top half of page) of this edition of Democracy in America.

 

WHAT AMERICAN DEMOCRACY MEANS FOR EUROPE

Founding a democratic republican regime is one thing. The American founders had done that. Maintaining it is another, as Benjamin Franklin famously remarked upon emerging from the final session of the Constitutional Convention in Philadelphia, and as a sober young American attorney named Abraham Lincoln saw and considered in his “Address to the Young Men’s Lyceum” in Springfield, Illinois in 1838, some two generations later.

Writing a couple of years before Lincoln, Alexis de Tocqueville understood that his fellow Europeans hesitated to found democratic republics because they did not see how such regimes could sustain themselves in Europe, where geopolitical, constitutional, and civil-social circumstances differed substantially from those prevailing in North America. By then, Americans faced no formidable enemies, needed to fight no major wars, and consequently afforded no opportunities for a native Napoleon to hunger for military glory and move against republicanism. The American capital was no Paris, no Rome; a centralized government can fall prey to mobs, with ‘the democracy’ threatening the government, whether monarchic, as in 1789 and again in 1848, or republican, as the Romans had seen in the military coup of Julius Caesar. And North America is much bigger than Europe; on a large continent, “nature itself works for the people,” giving them an outlet for their restless ambitions. Dissatisfied with your lot in life? If you’re an American, go West, young man; set yourself up as a farmer, not as a revolutionary.

Europeans enjoyed none of these advantages. Politically, they enabled the American Founders to constitute their national government as a federation, not a centralized state. Their strong township institutions, established long before the founding, had taught the people “the art of being free,” habits of mind and heart consistent with self-government. Americans had anchored their civil and criminal courts in the counties, close to the people, who could be confident that they would be judged by their peers.

Most importantly, American hearts were animated by the principles of a “democratic and republican” religion. As De Tocqueville had earlier maintained, the first movement toward equality of condition was in Christianity itself, its teaching of human equality before God. At the same time, American minds were enlightened by an education that was eminently practical, with the ‘Three Rs’ enabling citizens to read their Bibles for moral guidance, to read their newspapers for political information and for expressing their own opinions, and to calculate sums correctly in business.

In all, “American legislators had come, not without success, to oppose the idea of rights to sentiments of envy; to the continuous movements of the political world, the immobility of religious morality; the experience of the people, to its political ignorance, and its habit of business, to the enthusiasm of its desires.” It was true that Americans confronted one potentially ruinous dilemma absent from Europe: race-based slavery, the theme of the final section of De Tocqueville’s first volume—one distinct from the problem of the overall civil-social equality, the democracy, in America. Europeans, however, faced the reverse problem: no slavery, but no obvious solution to the questions raised by democracy.

On that front, Europeans enjoyed none of the advantages Americans enjoyed. Democracy was advancing in their societies with the weakening of the aristocracies. But democracy, social and civic equality, need not issue in republicanism, in the protection of natural and civil rights. Napoleon had demonstrated this, only a quarter-century before De Tocqueville ventured to the United States. “The organization and establishment of democracy among Christians is the great political problem of our time.” Indeed, “the question I have raised interests not only the United States, but the entire world; not one nation, but all men.”

Why? Under the civil-social condition of modernity, democracy, with no aristocrats standing between the people and the centralized state, one could not only see a monarchy along the lines of France under Louis XIV, but a new absolutism, a new despotism “with features unknown to our fathers.” The old absolutist monarchies retained a still-formidable aristocratic class. Firstborn sons inherited the estate, ruling but also protecting the peasants who worked their land, as their ancestors had done for centuries. Second-bord sons entered the clerical aristocracy, the Roman Catholic Church exerting influence on peasants, monarchs, and their fellow aristocrats alike Under the old regime, wealthy merchants in cities and townships also commanded their own sources of revenue and manpower independent of monarchs and aristocrats. Even under the rule of the Bourbons, then, there was “a love of freedom in souls” among honor-loving aristocrats and aristocrats and commerce-loving merchant. The peasants and urban workers ruled by these elites nonetheless understood that they, too, could one day see the face of God, that they too partook of the dignity of human being.

But in the European civil-social democracy of De Tocqueville’s century, the Enlightenment philosophes and their intellectual heirs had undermined faith in God; “nothing any longer sustains man above himself.” And democratic men find themselves in a leveled society in which all classes mix together, and “the individual disappears more and more into the crowd,” readily “lost in the midst of the common obscurity,” and therefore no longer held responsible for his actions.

 “When each citizen, being equally powerless, equally poor, equally isolated, can only oppose his individual weakness to the organized force of the government,” a regime of despotism would take on the harshness of late Roman imperialism, “those frightful centuries of Roman tyranny, when mores were corrupt, memories effaced, habits destroyed, opinions wavering, and freedom, chased out of the laws, no longer knew where to take refuge to find an asylum; when nothing any longer stood guarantee for citizens and citizens no longer stood guarantee for themselves,” where “one would see men make sport of human nature.”

In the event, many Europeans would come under tyrannies even worse than De Tocqueville foresaw, regimes in which making sport of human nature meant hunting it down in death camps and world wars, resulting in tens of millions dead, regimes where the modern state, armed with technologies permitting surveillance of its subjects, ended civil and political liberty for those who survived the onslaught, spurring the invention of a new word, ‘totalitarianism.’

“Is this not worth thinking about? If men had to arrive, in effect, at the point where it would be necessary to make them all free or all slaves, all equal in rights or all deprived of rights; if those who governed societies were reduced to this alternative of gradually raising the crowd up to themselves or of letting all citizens fall below the level of humanity, would this not be enough to overcome many doubts, to reassure consciences well, and to prepare each to make great sacrifice readily?” For “if one does not in time succeed in founding the peaceful empire of the greatest number among us,” democratic republics instead of democratic despotisms, “we shall arrive sooner or later at the unlimited power of one alone.”

Against atheist ideologies, therefore, De Tocqueville called upon Europeans to renew their respect for Christianity. Against overweening military and political ambition, he commended a spirit of peaceful commerce, of the ‘bourgeois’ life detested by aristocrats and socialists alike. Against the “sentiments of envy” he opposed the idea of individual and civil rights. Against governmental centralization, federalism and the practical experience local self-government provides to citizens. Against the threat of foreign wars, a strong executive, a constitutional monarch empowered to defend the realm. And against the alienation of his fellow aristocrats, De Tocqueville urged a policy not futile dreaming of reinstituting command but of guiding democracy, moderating its passions by teaching it how better to govern—as De Tocqueville himself did, in writing Democracy in America.

 

Will Morrisey is the author of ten books, including studies of the political thought of the American founders, the American Progressives, Herman Melville’s Moby-Dick, and Shakespeare’s comedies. He has been an editor of Interpretation: A Journal of Political Philosophy for 45 years. He retired from the Politics Department at Hillsdale College in 2015. His articles and reviews may be found on “Will Morrisey Reviews.”

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Essay 42: The Main Causes Which Tend To Maintain A Democratic Republic In The United States (Vol. 1 Pt. 2 Ch. 9, Subch. 9)

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Guest Essayist: Danny de Gracia

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 296-298 (Stop at “Importance of what Precedes”) of this edition of Democracy in America.

The Way We Were (And Could Be Again)

“The Americans have no neighbors and consequently no great wars, financial crisis, ravages, or conquest to fear; they need neither large taxes, nor a numerous army, nor great generals; they have almost nothing to dread from a scourge more terrible for republics than all those things put together – military glory.”
-Alexis de Tocqueville

The late Ronald Reagan after losing his party’s nomination for president in 1976, spoke of a time capsule that he had the opportunity to write a letter for that would be later opened for the American Tricentennial 100 years later in 2076.

“And suddenly it dawned on me, those who would read this letter a hundred years from now … will know whether we met our challenge,” Reagan explained. “Whether they will have the freedom that we have known up until now will depend on what we do here.”

Reagan then went on to say:

“Will they look back with appreciation, and say, ‘Thank God for those people in 1976 who headed off that loss of freedom? Who kept us now a hundred years later, free? Who kept our world from nuclear destruction? And if we fail, they probably won’t get to read the letter at all, because it spoke of individual freedom and they won’t be allowed to talk of that or read of it. This is our challenge and this is why we were here in this hall tonight. Better than we’ve ever done before, we’ve got to quit talking to each other and about each other and go out and communicate to the world that we may be fewer in numbers than we’ve ever been but we carry the message they’re waiting for. We must go forth from here united, determined, and what a great general said a few years ago is true: There is no substitute for victory, Mr. President.”

History both repeats and rhymes, and the challenge and battle that Reagan had spoke of for the soul and future of America is the same struggle that every American has been fighting since The Shot Heard Round The World on April 19, 1775 and maybe even earlier.

In the early decades of the United States of America, this country was a marvel to philosophers, historians, and political observers the world over, one of them being Alexis de Tocqueville. The Old World had its share of political revolutions and political experiments, and the search for a system of government that balanced the individual’s pursuit of happiness against society’s need for cohesion and order had been tried and failed numerous times over.

More often than not, the rulers of the Old World brought about political reform through palace intrigue, bloody revolutions, and military takeovers, often offering platitudes of liberty and freedom and justice to distressed citizens but ultimately never granting a system that allowed people the space to be human inside a government restrained enough to not be oppressive but still maintain the basic functions of a sovereign state without becoming a failed state. “Meet the new boss, same as the old boss” was the way that rulers and systems of government had come and gone for millennia up to the founding of the United States of America. Certainly, the Ancient Greeks had their experiment in democracy, but that was a system that was at best superficial and did not empower people to pursue and enjoy individual freedom in the way we today think of the revolutionary American statement that “all men are created equal.”

In fact, the lessons of the Peace of Westphalia treaty were still very much on the minds of European leaders at the time of the American Revolution. That treaty established the understanding that the lowest common denominator in the world system is not the individual, but the state itself, and that rulers have the right to be sovereign inside their national borders – a concept which, interestingly, lives on in the text of today’s United Nations charter.

This idea that the king is the state and the state is the king and everything and everyone under the king belongs to the king who is, like the ancient Pharaoh of Egypt, the morning and the evening star was upheld by the Peace of Westphalia. Many of the ancients, though they resented it, likely felt and understood this was a necessary evil.

The Bible gives us the story of Moses spending time collecting the Ten Commandments on a mountaintop, while his brother Aaron is left behind with the presumably millions of Israelites who had been rescued from Egypt’s bondage by divine deliverance. The people organized the equivalent of a democracy in the absence of Moses, pressured Aaron to build a golden calf as their national icon, and began to revel and cast off all restraint – that is, until Moses came back with the power of God to put them in their place.

This idea that if people are allowed to have their way, they’ll use it to do evil and wreak chaos on a national and even international scale has persisted throughout human history. The purpose of the king, who is either there because a “god” chose him or because he is the bloodiest, wisest, or richest person able to assemble and control the resources needed to maintain a state, is essentially under this line of thought to keep the citizens in line and to keep the neighboring countries in line as well.

When we read De Tocqueville’s “Democracy in America,” we can therefore see the European alarm and fascination that America, at least at the time, was a political unicorn. Here De Tocqueville finds Americans govern themselves, and don’t require a police state to keep them in line. Here the heads of state, local leaders, and public servants are anodyne, mostly agreeable individuals, who dare not step out of line, lest they face the wrath of the public. In short: Americans have a functioning democracy because they can handle it.

“To submit the provinces to the capital is therefore to put the destiny of the whole empire not only in the hands of a portion of the people, which is unjust, but also in the hands of the people acting by itself, which is very dangerous,” De Tocqueville wrote. “I already said before that I saw in the origin of the Americans, in what I called their point of departure, the first and the most efficacious of all the causes to which the current prosperity of the United States can be attributed. Americans had the chance of their birth working for them: their fathers had long since brought equality of conditions and of intelligence onto the soil they inhabited, from which the democratic republic would one day issue as from its natural source. This is still not all; with a republican social state, they willed to their descendants the most appropriate habits, ideas, and mores to make a republic flourish.”

One will likely read De Tocqueville in 2024 and, seeing the condition of the United States, easily say, “Ouch, he missed it, we missed it, and what a height we’ve fallen from.” The very things that allowed America to be a successful democracy at the time of Tocqueville’s writing of “Democracy in America” are the very things that are absent in today’s country.

Increasing urbanization by design means that people today are packed together in tight, uncomfortable, competitive built environments. This is the opposite of the pastoral, agrarian, mostly relaxed America that De Tocqueville wrote of with agreeable citizens and family structures that were personal, instructive, and a form of self-government.

Want to feel democracy has failed? Work in Downtown Honolulu, Hawaii and just try to leave your office for a 45-minute lunch break. Trust me, if you don’t get a traffic ticket for a simple mistake, get run over by a distracted driver, collide with a pedestrian disobeying the crosswalk signal, or get stuck in a traffic jam due to some wild accident for two hours, then you must have the very blessing of God Himself operating in your life. This is a daily experience which embitters citizens and makes individuals reliant on big government to fix, regulate, or control the increasingly out of control world around them. Here in Hawaii, we have no shortage of public “planners” yet the local chaos here is out of control.

Does democracy as a system of government work? Technically yes, technically no. It “works” if a majority of those voting are enlightened, altruistic, and at peace with themselves and others. It doesn’t work when they’re not. And that is why America, in 2024, is the exact opposite of what De Tocqueville described in “Democracy in America.”

Today? We’re fighting world wars no one wants to admit are world wars. Our young people are tearing apart college campuses and have a political divide that is night and day from their parents view of the world. Our government is bigger than it’s ever been before, but it can’t maintain order. We’re taxing people way beyond what drove the Founders to rebel, but every politician and bureaucrat says they need more money and can’t even cut the grass or keep the roads paved because there’s “no money for that.” And depending on which of the two major parties one subscribes or aligns with, one may see two totally different directions and purposes for the future of America.

Oh, if only we could go back to De Tocqueville’s time, when times were simpler. We can, in fact. Despite all of the disruption, decline, and major changes in history, America’s experiment is still at its core a system of inputs and outputs that when operated properly will work the way it was intended, for limited government, and maximum individual freedom.

De Tocqueville’s America at the time of his observation emphasized a connection to one’s family and to one’s community. When we are able to know each other and keep each other accountable, we can solve things by cooperation or by negotiation amongst ourselves. That is the beginnings of self-governance.

I often ask myself how many people would be out protesting in the streets or being vicious and disagreeable over abstract political ideas if they had someone back home who loved them and helped them and kept them grounded with supportive words and kind loyalty.

De Tocqueville also encountered an America that did not see or rely on national government as the source of their solutions. Today, we want a quote from the president and the speaker of the house and the senate majority leader on every little thing that happens in the world and what their plan is. When Americans took initiative and took action on the things they had within their personal sphere of reach, politicians were largely obsolete. Today, we take minimal responsibility for things and seek to be as un-accountable for our actions and others as possible. De Tocqueville’s America was proactive and ready to take charge. They had peace because they had initiative.

And most importantly, De Tocqueville saw an America that had traditions that clearly established lines between moral rights and wrongs. “In the United States, religion not only regulates mores, but extends its empire over intelligence,” he observed. Today, we have been encouraged to be narcissistic, avoidant, and mercenary in our actions. The concept of “your truth,” “your vibes,” or “your tribe” that has been promoted in recent years suggests a man or a woman can be an island who does whatever is right in their own eyes at any given time with no accountability to anything or anyone except their own gratification.

Multiplied to a population level, this kind of thinking is disastrous and results in exactly the kind of society we have that is at war with itself. There is a war against moral clarity in America today that brings out the worst, rather than the best, that democracy can offer.

“It is likely,” Benjamin Franklin said at the 1787 constitutional convention, “to be well-administered for a course of years, and can only end in despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic government.”

Take that not as a prophecy that cannot be avoided, but as a warning that must be heeded.

America is at a dangerous precipice in 2024. We are headed away from the enlightenment that De Tocqueville and others marveled at, and are going backwards in time to the traditions of upheaval, reactionary despotism, and ultimately, total decline. But we can turn back. It will take changing our communities, changing our cities, and most importantly, changing ourselves.

Danny de Gracia is a political scientist and internationally published author who lives in Hawaii. He is currently working on his second master’s degree in health policy at the University of Hawaii at Manoa.

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Essay 41: The Main Causes Which Tend To Maintain A Democratic Republic In The United States (Vol. 1 Pt. 2 Ch. 9, Subch. 8)

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Guest Essayist: Richard Epstein

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 292 (Stop at “That the Laws”) – 295 of this edition of Democracy in America.

Causes Tending to Undermine a Democratic Republic

Commentary on de Tocqueville:
Vol. One, Part Two, Chapter Nine

It is widely acknowledged that Democracy in America, written in 1835 and 1840, is the greatest book on that topic—a period of America long gone and never to return. De Tocqueville offers an optimistic chapter describing the forces working to preserve a democratic republic. Conjoining those two words obscures the traditional philosophical opposition between republics and democracies. In so doing, De Tocqueville offers several explanations that, while accurate for his time, are as dead as a dodo bird in ours.

His first explanation is that “The Americans have no neighbors and consequently no great wars,” except, of course, with themselves (the Civil War of 1861-1865 was at the time the bloodiest and most sophisticated war fought anywhere in the world). We still have quiet borders with our northern and southern neighbors (putting aside the problem of illegal immigration). But today, new technologies that span oceans call for military interactions with countless nations, both friend and foe—China, Germany, Iran, Iraq, Israel, Japan, North Korea, Russia, Spain, Taiwan, Ukraine, the United Kingdom, and many others. Our current military budget, foreign policy, defense capabilities, intelligence sources, and foreign aid programs never crossed De Tocqueville’s mind. But to read him as a blind isolationist would draw exactly the wrong inference. Today, he would know that the question is not only whether to interact with these formidable world powers but also how to do so. Do we sign bilateral or multilateral treaties? Can we continue to follow a constitutional system that requires, except in emergencies, the Congress to declare war before the President as commander-in-chief can intervene in Kosovo or Libya? These all present tough issues. And if De Tocqueville was right to attack General Andrew Jackson when he ascended to the presidency, should we say the same about Dwight Eisenhower? Don’t blame De Tocqueville for not seeing the future. Don’t rely on him as if he did.

Second, De Tocqueville spoke of the advantages of having a small national capital, which prevents a disproportionate concentration of power at the center that would regrettably displace the “great assemblies” in small towns and reduce the key role of citizen participation in direct democracy. He even notes with evident uneasiness that cities like Philadelphia (then populated by 161,000 inhabitants) and New York (then 202,000) could be the source not only of disagreement but potentially of race riots.

Those days are gone forever. When De Tocqueville wrote, the population in the United States was under 15 million people, just before the new waves of immigration reached our shores. Today, the population of the United States is over 336 million people. New York City is close to 8 million, and Philadelphia has about 1.5 million. Those long-term population increases do not allow traditional institutions to scale up without some fundamental changes in their character. The town model cannot work, so some variation on the square/cube law takes over—any viable state must cube the size of its infrastructure in order to double the size of its operations. Town meetings are for school boards, not climate control or interstate transportation.

Yet more than size is at stake. For the first, roughly speaking, 125-150 years under the 1787 Constitution, the philosophy of government at the federal level changed radically. The classical liberal model that speaks of the control of force, fraud and monopoly was no longer at the fore. Now, a much broader conception of government power uses administrative expertise to implement complex regulatory schemes that are supposed to reflect informed democratic preferences. Woodrow Wilson’s administration ushered in the federal income tax, the Federal Reserve Board and the Federal Trade Commission, the expansion of antitrust laws, the direct election of Senators, and women’s suffrage. Together, these composed the first stage of expanding state power, followed by Franklin Roosevelt’s New Deal and Lyndon Johnson’s Great Society. These activities undercut the restrictions on state power imposed by the principles of separation of powers and checks and balances. The New Deal saw the rise of the alphabet agencies—the Agricultural Adjustment Administration, the National Labor Relations Board, the Civil Aeronautics Authority, the Interstate Commerce Commission, and many more. The Great Society added civil rights, health care, and environmental protection, bringing more power to Washington, which today may be somewhat curbed by the Roberts Court’s controversial attack on judicial deference to the expansive actions of the administrative state.

De Tocqueville may not have approved of all these changes had he foreseen them. But, if alive today, he would recognize that there is no turning back to the simpler world of 1835. And as the final irony, like De Tocqueville, we have no open spaces in which to move and hide. So our challenge in this brave new world is to maintain levels of freedom and prosperity that De Tocqueville could not have imagined—or understood.

Richard A. Epstein is the inaugural Laurence A. Tisch Professor of Law at NYU School of Law, where he serves as a Director of the Classical Liberal Institute, which he helped found in 2013. He has served as the Peter and Kirstin Bedford Senior Fellow at the Hoover Institution since 2000. Epstein is also the James Parker Hall Distinguished Service Professor of Law Emeritus and a senior lecturer at the University of Chicago.

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Essay 40: The Main Causes Which Tend To Maintain A Democratic Republic In The United States (Vol. 1 Pt. 2 Ch. 9, Subch. 7)

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Guest Essayist: Tony Williams

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 288 (Start at “How the Enlightenment”) – 292 (Stop at “That the Laws”) of this edition of Democracy in America.

De Tocqueville on American Education and Self-Government

In 1838, a young Abraham Lincoln addressed a young men’s lyceum debating society in Springfield, Illinois, on the topic of “The Perpetuation of Our Political Institutions.” Lincoln stated that mob rule and demagoguery were great threats to American self-government. He asserted that the way to preserve American political institutions was to restore reason and reverence for the laws as a “political religion” over the shifting and dangerous passions of human nature.

Publishing his masterpiece, Democracy in America, at the same time Lincoln spoke, De Tocqueville offered his own reflections on “the influence exerted by the enlightenment and the habits of the Americans on the maintenance of their political institutions.” In both cases—education and political habits—were formed primarily through experience rather than theory. The American people, he observed, were eminently a very practical people.

De Tocqueville thought that American education did not produce great literature or scientific inventions. Instead, Americans adapted the technology, “marvelously to the needs of the country.” They also sought education to learn “the doctrines and the proofs of [their] religion.” Finally, they gained familiarity with “the principal features of the constitution that governs” their country.

The main measure of American education might be found, in De Tocqueville’s view, in the thousand newspapers he says crisscrosses the republic. Americans demonstrated a commitment to the “utility of Enlightenment” rather than a desire to reproduce the Encyclopedie project of the French Enlightenment to classify all the world’s knowledge, for example.

Americans bring this practical education and knowledge even in the vast stretches of the western frontier. De Tocqueville stated that the American plunges “into the wilderness of the New World with his Bible, a hatchet, and newspapers.” Thus, they bring their version of enlightenment with them as they civilize what they considered a wilderness.

But, more than that, education cultivates the habits and mores of a self-governing people. De Tocqueville writes, “the instruction of the people serves powerfully to maintain a democratic republic.” Those virtues of citizenship, however, are acquired not through reading great political tracts but by the constant practice of self-governance.

De Tocqueville is astounded that Americans have an extremely strong sense of their rights. The American knows “what his rights are and what means he will use to exercise them.” The same could hardly have been said of peasants farming in Italy or serfs in imperial Russia.

Americans also acquire an understanding of the laws from reading newspapers and participating in the work of self-government. With a written Constitution and published laws, Americans were in a unique position of knowing the laws they lived under. De Tocqueville writes, “He has made himself familiar with the mechanisms of the laws.”

Lastly, and perhaps most importantly, Americans engaged in self-governance. Universal male suffrage meant that all white men could vote, which was truly exceptional in the first half of the nineteenth century. They voted in free elections, served on juries, held political office, served in local government jobs in their communities, and attended democratic town meetings.

“It is from participating in legislation that the American learns to know the laws, from governing that he instructs himself in the forms of government. The great work of society is accomplished daily before his eyes and so to speak in his hands.”

De Tocqueville noted that Americans carried “the habits of public life into private life.” That was perhaps one of the keys to the health of American democracy. They had democratic habits and virtues that animated a robust civil society of self-governing citizens who could manage their own affairs without the intrusive hand of government. And, self-government was rooted upon education forming the character of the American people.

Today, Americans generally have a strong instinctual sense of their constitutional rights. While they may not always get the exact particulars correct, they cherish the right to speak their minds because they have free speech under the First Amendment. They also have a strong reaction against a police officer searching the trunks of their cars without probable cause or entering their homes without a warrant. They would want to speak with a lawyer if arrested and held at a police station. In this way at least, the American spirit of liberty and self-government is alive and well.

De Tocqueville noted this phenomenon almost two centuries ago in Democracy in America. He wrote an American “will teach you what his rights are and what means he will use to exercise them.”

Tony Williams is Senior Teaching Fellow at the Bill of Rights Institute; a Constituting America Fellow; author of Washington and Hamilton: The Alliance that Forged America, and Hamilton: An American Biography.

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Essay 39: The Main Causes Which Tend To Maintain A Democratic Republic In The United States (Vol. 1 Pt. 2 Ch. 9, Subch. 6)

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Guest Essayist: Ben Peterson

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 282 (Start at “On the Principal Causes”) – 288 (Stop at “How the Enlightenment”) of this edition of Democracy in America.

De Tocqueville on Religion in Society

For De Tocqueville, habits and mores, determined especially by religion, are the primary contributors to the Americans’ successful maintenance of their democratic republic. Against champions of liberty who opposed Christianity and reactionaries who opposed liberty and defended religion, De Tocqueville described and favored an American republicanism that had combined “the spirit of religion and the spirit of freedom.” The dominance of Christian morality—a salutary tyranny of the majority—promotes domestic tranquility and furnishes limits on political power. De Tocqueville makes an arresting claim: “Religion, which, among Americans, never mixes directly the government of society, should therefore be considered as the first of their political institutions; for if it does not give them the taste for freedom, it singularly facilitates their use of it.”

While noting that religion “never mixes” with government, De Tocqueville nevertheless notes that it holds widespread influence in society, hinting at the larger force of his argument. De Tocqueville’s claim is twofold: first, Christianity exercises an enormous degree of political influence in America, despite formal separation of church and state, through its hold over the mores. Second, the degree of influence Christianity wields actually depends on disestablishment, assigning religion to its proper sphere of dominion over hearts and minds.

In De Tocqueville’s analysis, mortal man is irrepressibly homo religiosus, irrepressibly yearning for immortality. Religion thus possesses a natural advantage in the sphere of the mind and mores, pertaining to the permanent interests of human beings in the next world:

As long as religion finds its force in the sentiments, instincts, and passions that one sees reproduced in the same manner in all periods of history, it defies the effort of time, or at least it can only be destroyed by another religion. But when religion wishes to be supported by the interests of this world, it becomes almost as fragile as all the powers on earth.”

All civil powers, in contrast, are ephemeral. Direct alliance with civil political power jeopardizes religion’s natural advantage. The enemies of an allied regime become enemies of the religion: “So by uniting with different political powers, religion can only contract an onerous alliance. It does not need their help to live, and by serving them it can die.”  This makes religion especially vulnerable in democratic ages because configurations of political power change rapidly and constantly.

The reason Christianity—which De Tocqueville will argue in Volume II is especially suited to liberty—maintains a somewhat thinned, but widespread and unchallenged influence in American society is because it confines itself to the realm of general moral guidance and the government of the heart and mind, the natural, universal realm of religion: “In America, religion is perhaps less powerful than it has been in certain times and among certain peoples, but its influence is more lasting. It is reduced to its own strength, which no one can take away from it; it acts in one sphere only, but it covers the whole of it and dominates it without effort.”

De Tocqueville presents religion with a tradeoff: it can have universal dominion over minds and mores, or conventional political power over a particular group, but not both. De Tocqueville’s claim and analysis, supported with the example of the French Revolutionaries’ antagonism to religion and the American case, suggest two intriguing possibilities relevant to the question of the Christian witness: first, political influence need not rest on direct governmental prerogative or public recognition. Second, entanglement with conventional political power could present a danger to the influence of religion, undermining the influence over minds and mores.

The tradeoff has a bit more bite. De Tocqueville claims that Christianity has complete dominance over minds and mores, but that dominance comes up against other mental and moral features of the democratic age. For example, Christianity must not challenge too pointedly the “love of well-being” that equality engenders but be content with constraining the pursuit of well-being to honest means. In democratic ages, religion cannot afford to buck against common opinion too much:

“As men become more alike and equal, it is more important that religions, while carefully putting themselves out of the way of the daily movement of affairs, not collide unnecessarily with the generally accepted ideas and permanent interests that reign among the masses; for common opinion appears more and more as the first and most irresistible of powers; there is no support outside of it strong enough to permit long resistance to its blows.”

Religion retains its dominant—but limited—hold over minds and mores only by staying tightly within narrow bounds. The spirit of religion and the spirit of liberty mix, but uneasily in the context of democracy.

Ben Peterson is an assistant professor in the Department of Government and Criminal Justice at Abilene Christian University. He writes on a range of public policy issues, drawing from resources in Christian social and political theory, the broader Western tradition of political thought, and contemporary social science. You can find links to his other writings and information about his scholarship on his website.

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Essay 38: The Main Causes Which Tend To Maintain A Democratic Republic In The United States (Vol. 1 Pt. 2 Ch. 9, Subchs. 4-5)

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Guest Essayist: Paul McNulty

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 275 (Start at “On Religion”) – 282 (Stop at “On the Principal Causes”) of this edition of Democracy in America.

Religion and Democracy in America:
An Essay on the Observations of Alexis de Tocqueville

America’s Founding Fathers believed there was an inseparable link between faith and freedom. They were convinced that if one flourishes the other will as well and that liberty particularly would be at risk if religion and virtue diminished. The evidence of these shared convictions is unmistakable, as revealed in the quotations below. In addition, decades after it factored into the Framers’ crafting of the U.S. Constitution, De Tocqueville emphasized the foundational significance of religion in preserving American freedom. But why is this so?

In a free society, self-government is a prerequisite for social order. If citizens exercise self-restraint in relation to others and take responsibility for their well-being and that of their dependents, then freedom and limited government can be maintained. In the absence of self-government, freedom will diminish as various forms of coercive government power necessarily fill the void. Self-government requires the exercise of moral virtue, often referred to as public virtue. And moral virtue is generally and historically the fruit of sincere faith. This is why the Founders saw the great utility of religious belief.

John Adams, our second President, wrote, “Our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” The father of our Constitution, James Madison, offered a similar insight when he observed that our form of government necessitated “sufficient virtue among men for self-government.” And perhaps the strongest statement on this point was offered by President Washington in his “Farewell Address” to the people of the United States in 1796. He wrote,

Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports…. And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.

The relationship between freedom, religion, and virtue has been insightfully described by some observers as the “golden triangle of freedom.” Freedom begets the exercise of religious belief, religious belief begets virtue, and virtue strengthens freedom. This was universally understood by America’s founding generation.

It should come as no surprise, therefore, that the essential interconnection between faith and freedom was among De Tocqueville’s key observations about our young nation. In his Democracy in America subchapter entitled “Of Religion Considered as a Political Institution, How It Serves Powerfully to Maintain the Democratic Republic among the Americans,” De Tocqueville notes, “Who could deny the fortunate influence of religion on mores and the influence of mores on the government of society [?]” Here the word “mores” is essentially the same as public virtue, a set of generally accepted moral norms within a community. De Tocqueville saw such mores as a powerful influence, both directly and indirectly, on the American political order and critical for sustaining freedom. He writes, “From the onset, politics and religion found themselves in accord, and they have not ceased to be so since.”

In his following subchapter entitled “Indirect Influence Exercised by Religious Beliefs on Political Society in the United States,” De Tocqueville affirms a non-sectarian value of religious belief. “There is an innumerable multitude of sects in the United States. All differ in the worship that must be given to the Creator, but all agreed on the duties of men toward one another. Each sect therefore adores God in its manner, but all sects preach the same morality in the name of God.” Moreover, De Tocqueville observes that some Americans may not be convinced of the truth of religion, but he is sure that they are convinced of its utility.

For De Tocqueville, religion typically entails various characteristics that are especially valuable for a free society. These characteristics include: a special appreciation for the equality of people and their inherent value; a commitment to strong family life; a love for order that “carries into the affairs of the State:” and, perhaps most importantly, a requirement of moral self-restraint that preserves liberty and influences public service.
De Tocqueville concludes subchapter 5 on a cautionary note, one that is strikingly relevant to our current political and moral climate. “How could society fail to parish if, while the political bond relaxed, the moral bond were not tightened?” In other words, the increasing polarization in our politics poses a serious threat to the preservation of our Constitutional order if public virtue continues down the current path. At the same time, the growth of secularism has weakened the religious foundations of our shared morality.

Many in today’s debates would strenuously resist making a connection. At the very least, the burden on those professing faith to demonstrate virtuous character has never been greater. Such faith-based morality is what the Founders were counting on, and what De Tocqueville saw as the greatest hope for America.

Paul McNulty is the president of Grove City College. Prior to assuming this position in 2014, he served more than thirty years in Washington, DC as an attorney in public service and private practice. In 2005 he was appointed to the position of Deputy Attorney General by President George W. Bush after serving for more than four years as the United States Attorney for the Eastern District of Virginia where he was a leader in the nation’s response to the terrorist attacks of 9-11. He served for more than ten years in the U.S. House of Representatives including as Chief Counsel for the House Majority Leader, Chief Counsel for the Subcommittee on Crime, and Counsel to the Committee on Standards of Official Conduct. Mr. McNulty also led the corporate compliance and investigations practices at the global law firm Baker McKenzie.

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Essay 37: The Main Causes Which Tend To Maintain A Democratic Republic In The United States (Vol. 1 Pt. 2 Ch. 9, Subchs. 2-3)

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Guest Essayist: Stephen Tootle

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 274 (start at “On the Influence of the Laws…”) – 275 (On Religion) of this edition of Democracy in America.

Even the shortest sections of De Tocqueville’s writings often contained keen insights into the requirements of liberty. When describing the laws and mores required to maintain a democratic republic, De Tocqueville summarized what he had described in previous chapters. His summary gave us a remarkable insight into how American ideals and institutions had been working since the founding.

He understood that the very structure of our government encouraged and enabled a free people to keep their liberties. One key element of this structure was the interaction between the national government and local government. The national government had the power to protect the American people. Local governments gave Americans the ability to enact legislation meaningful to their everyday lives. But towns and the democratic institutions closest to the people had a special role to play.

Towns tended to enact and enforce laws that limited the evils of unchecked majorities. As these people and institutions did their work, every American learned the value of freedom. Courts could not stop majorities from enacting their desires forever. But the emotions of majorities could be slowed and directed. De Tocqueville saw that what the founders had intended did work in practice.

A metaphor can help to understand his point. Imagine an athlete competing in a sport over time. That athlete would come to understand the value of having the rules of the sport applied fairly. When the athlete won, it would be an earned victory. The people who watched the sport would become more invested in the sport because of the integrity of the contest. Thus, even when one failed to win, the athletes and spectators would come back for the next contest. Rules, when fair and followed, create a culture that leads to the best results over time. Further, even though a fan of a particular team or athlete might want to win one contest, over time a fan would learn the importance of protecting the integrity of the sport through effective officiating and rulemaking.

De Tocqueville understood how cultures and government systems interact with one another. Individuals have, “habits of the heart.” Those habits interact with others in society to form, “habits of mind.” Those collective habits form a culture. A government system on its own could never create a free culture for a free people, but governments could help maintain, encourage, or destroy a free culture. Over time, systems of government could allow a culture of a free people to continue and thrive. These lessons might seem simple or obvious, but their implications are as profound as the continued existence of a free government tending toward the prosperity of all people.

As each individual human being is infinitely complex, every single person contains untold conflicting and overlapping desires and values. The federal system, local governments, the practices of towns and judges, and the free culture of a free people did something very special to the complex, conflicting, and overlapping desires of individuals. The system enabled what Hamilton called for in Federalist 1: a political culture based on “reflection and choice” rather than “accident and force.” De Tocqueville’s record of how Americans lived in the early decades of the 19th century demonstrated that Hamilton was right.

Human nature has not changed since the days of De Tocqueville. What was true for them still holds for us. Culture is the sum of the values of individuals. Government institutions cannot force us to live good lives. But good government and good institutions can make it possible for people to live peaceful, prosperous lives of their own choosing.

Stephen Tootle is Professor of History at the College of Sequoias in Visalia California and Honored Visiting Graduate Faculty at Ashland University. His reviews, articles, and essays have appeared in National Review, the Claremont Review of Books, Presidential Studies Quarterly, the Journal of the Gilded Age and Progressive Era, and his hometown newspaper. He hosts a weekly podcast/webcast called “Tootle Talk.”

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Essay 36: The Main Causes Which Tend To Maintain A Democratic Republic In The United States (Vol. 1 Pt. 2 Ch. 9, Subch. 1)

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Guest Essayist: Val Crofts

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 264 (start at chapter 9 heading) – 274 (stop at heading “On the Influence of the Laws…”) of this edition of Democracy in America.

The Main Causes Which Tend To Maintain a Democratic Republic in the United States

The United States exists today as a federal democratic republic, which was part of the Founders’ plan to create the unique and effective system of government that we have lived under for 237 years. Our democratic republic has two elements to it. First, in our form of democracy, we let the citizens rule under majority rule in certain elections, as well as adhering to the concept of popular sovereignty: government that is based on the supremacy of the people. Second, in our republic, we give power to our representatives, who govern for their constituents. We have elements of both a democracy and a republic, balanced within our system of government, which was the Founders’ intent.

In the first part of Chapter 9, De Tocqueville examines the main reasons and causes of the democratic republic existing within the United States in 1831-32. Throughout his book, De Tocqueville states that his primary goal was to explain these reasons and causes. He believed that the main causes for them could be narrowed down to three main causes.

1. The situation that God (Providence) placed Americans
2. Our laws
3. Our habits and norms

This section looks at the main factors in maintaining our democratic republic. De Tocqueville narrows down the list of “a thousand circumstances” for the unique situation of the United States democratic republic to the main ones. He felt that as we had no neighbors around us who served as a military threat, we did not need to fear war or the possibility of conquest from neighboring nations. He believed that military glory and the need for conquest were fatal to past republics, but were not a concern to ours in the 1830s.

When De Tocqueville visited, the United States had a small capitol city that was not dominant over the entire nation’s politics yet. It was not controlling the lives of the citizens and making itself felt everywhere. U.S. citizens ruled themselves in small assemblies and participated within direct democracies to determine most of their day to day lives and issues. The people were allowed to be stewards of themselves. De Tocqueville felt it would be a breach of the representative system if the national capital ever tried to usurp the local control.

De Tocqueville speaks throughout his book of the “point of departure” of our nation from others, when the Puritans combined religious and personal liberty, bringing “equality of conditions and of intelligence” to our shores that would become the natural fabric from which our democratic republic would emerge. God also graced us with a natural place to foster this type of government.

He next speaks of Americans having a general “well-being” that exists here, due to the incredible riches that exist on the North American continent, which was described as a blank canvas waiting for emigrants to discover and farm upon. It creates a peaceful and content mindset, which runs contrary to societies that are angry and discontent and those feelings often come out as resistance and overthrow of governments. In the United States of 1831, De Tocqueville felt we did not have to worry about such things because we were so content.

God gave us this land in a pristine state, De Tocqueville notes, which was just sitting there waiting to be cultivated by future successful farmers.

He then discusses that most of the emigrants in the American West do not come directly from Europe there. Most European immigrants, in De Tocqueville’s observations, stayed along the Atlantic coast until they were able to be successful enough to move on to greener pastures of the West. This trend continued as settlers moved into the Ohio Territory. Many in Ohio and the former Northwest Territory also waited to accumulate personal wealth before moving West.

These emigration patterns led to a new type of primogeniture in the United States—one that did not exist by name, but because of condition. As families become more prosperous, the eldest will generally take the land in the East and the younger siblings go West to seek their fortune. This helps to keep large estates in the family and not parceled up among the family. De Tocqueville notes that this does not offend anyone and goes on without complaint. He cites enormous numbers that leave homes in the East and move West.

These situations God provided, along with a series of laws and habits that Americans naturally had during his visit in 1831-32 allowed for our nation to exist to be a perfect land for a democratic republic, according to De Tocqueville.

Val Crofts began his teaching career in 2001 at Westosha Central High School in Paddock Lake, Wisconsin, and is currently employed as the Chief Education and Programs Officer at the American Village in Montevallo, Alabama. He previously taught at Milton High School in Milton, Wisconsin, for 17 years and worked as a teaching consultant for the Wisconsin Virtual School for nine years.
He shared his passion for learning by teaching AP Government and Politics, AP Human Geography, AP Comparative Government, AP U.S. History, U.S. History, and U.S. Military History. In his current role at the American Village, he works to create an engaging curriculum to help assist teachers and students of all ages to learn about American history, America’s Founders, and the legacy that they left for future generations.
In 2008, Crofts founded the Discovering Democracy program at Milton High School. Discovering Democracy immersed hundreds of students into government through public policy research and culminated with a weeklong field study in Washington D.C. His students were privileged to meet with top policy experts and national leaders such as then-Justice Ruth Bader Ginsburg, Justice Antonin Scalia, Justice Sonia Sotomayor, and former Speaker of the House, Paul Ryan.
Crofts was recognized for his teaching efforts in 2013 when he received the Crystal Apple Award for Teaching Excellence. He was also selected as the Wisconsin DAR Outstanding Teacher of U.S. History in 2020.

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Essay 35: What Moderates The Tyranny Of The Majority In The United States (Vol. 1 Pt. 2 Ch. 8)

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Guest Essayist: Tom Hand

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 250 – 264 (stop at chapter 9 heading) of this edition of Democracy in America.

Democracy in America: Moderating the Majority

In Democracy in America, De Tocqueville warns of the inherent danger to a democracy from “the omnipotence of the majority” and the tyranny that is naturally imposed on the minority. De Tocqueville offers some consolation to lovers of American democracy that certain factors in the United States work to hold in check some of that power.

Among these impediments, at least in the 1830s, to potential abuses were lawyers who collectively constituted an independent, non-partisan judiciary system and the authority vested in American juries. De Tocqueville believes that lawyers are naturally elitists and aristocrats and often think contrary to the general run of mankind, thus creating an obstacle the masses must overcome to impose their will on the minority. He also states that the American jury system, in which the people have the final say regarding which laws are just and if they have been equitably applied, is a significant check on the absolute power of the majority whose representatives create the laws.

But De Tocqueville argues the greatest check on the despotic tendencies of the majority is the simple fact that the central government has limited interest in directing the daily lives of its citizenry. De Tocqueville states that during his 41-month tour of the United States in 1831 he observed a central government that was concerned with very few aspects of American life, being almost solely interested in foreign affairs.

Based on his world of the 1830s and the federal government found in America at the time, De Tocqueville’s reasoning was sound. But things have changed since those early days of the republic and his words meant to give comfort to Americans now must give us pause in light of the current state of affairs.

In the America of De Tocqueville’s day there was no federal administrative state, and even President Jackson’s own cabinet only consisted of six departments. There was no Federal Bureau of Investigation to observe every move of a free citizenry, no Environmental Protection Agency to decide if people can use gas stoves in their own homes, no National Health Institute to determine that Americans need to wear masks and stand six feet from their fellow citizens, and no Transportation Security Administration to decide that two ounces of liquid is okay but never three.

The sheer lack of size and apparent lack of interest in the federal government in overseeing day-to-day life in America was, in De Tocqueville’s mind, a blessing to democracy. He mentions how fortunate Americans are that the federal government “has not undertaken to regulate secondary things in society” but provides a warning as well if that condition should ever change.

De Tocqueville writes, “…if having established the general principles of the government, it (the federal government) entered into the details of their application, and having regulated the great interests of the country, it could descend to the limit of individual interests, freedom would soon be banished from the New World.”

One wonders what De Tocqueville would say if he were to view the America of 2024 with its overarching federal government that touches every aspect of American life and is administered by those unelected by the people. It is easy to imagine that De Tocqueville would lament for the loss of true freedom in America, that ability to decide for ourselves how we would live, and he would probably predict a darkened future if somehow this cancer is not removed.

Tom Hand is the visionary behind Americana Corner, an organization dedicated to sharing compelling narratives of significant events, influential leaders, and foundational documents that have shaped the United States. Since 2020, Tom has written and produced over 200 articles and videos, aiming to rekindle Americans’ patriotic spirit and remind them of the nation’s remarkable legacy. Beyond his creative work, Tom established the Preserving America Grant and Partners programs, donating millions to support history organizations nationwide. All proceeds from his book, “An American Triumph: America’s Founding Era through the Lives of Ben Franklin, George Washington, and John Adams,” support these programs. His unwavering dedication to promoting patriotism and preserving America’s heritage makes him an invaluable advocate for the Great American Story.

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Essay 34: The Majority In The United States Is All-Powerful And The Consequences Of That (Vol. 1 Pt. 2 Ch. 7, Subchs. 4-6)

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Guest Essayist: Tom Hand

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 243 (start at “On the Power that the Majority..” heading) – 249 of this edition of Democracy in America.

Democracy in America: The All-Powerful Majority

In De Tocqueville’s masterpiece, Democracy in America, De Tocqueville discusses at length what he terms the “omnipotence of the majority” found in democracies and how that all-powerful force is one of the greatest threats to liberty and freedom, the twin pillars of a democratic form of government.

It seems a contradiction that the greatest blessing of a democracy, the rule of the majority instead of the one or the few, should also hold in it the most likely place wherein lies the seeds for the possible destruction of democracy. But, as De Tocqueville points out, that is very much the case.

As De Tocqueville asks, “What is a majority, in its collective capacity, if not an individual with opinions, and usually with interests, contrary to those of another individual, called the minority? Now, if you admit that a man vested with omnipotence can abuse it against his adversaries, why not admit the same concerning a majority?”

De Tocqueville goes on to argue that this omnipotence can easily, and perhaps naturally, lead to abuse, one he terms the “tyranny of the majority.” Because they are the many against the few, the majority assumes a type of moral authority over society and woe be to him that questions this power. Where can he who confronts the majority turn for help? The executive is elected by the majority, and the legislature is as well. The police are, in De Tocqueville’s term, simply “the majority under arms.”

This all-powerful influence extends beyond the laws and the customs of a country; it even has a telling effect on the thoughts of its citizens. De Tocqueville argues that once the majority has determined what is “right,” all who oppose that opinion become outcasts of society.

In an example, De Tocqueville pictures an official telling someone out of step with the majority that “You are free not to think as I do; your life, your goods, everything remains to you; but from this day on you are a stranger to us…When you approach those like you, they shall flee you as being impure; and those who believe in your innocence, even they shall abandon you, for one would flee them in their turn. Go in peace. I leave you your life, but I leave it to you worse than death.”

Because the majority is insulated from the criticism, it lives in a state of “perpetual adoration of itself,” failing to ever conceive that they may be wrong. This develops into arrogance within the majority who begin to see their fellow citizens not as equals with a different outlook but rather as deplorable beings incapable of redemption.

The omnipotence of the majority also has a profound effect on our national character by encouraging the “spirit of the court,” that demeaning characteristic in which men crawl before others in positions of power to curry their favor. While that dehumanizing trait is typically the hallmark of a small cadre of nobility within an absolute monarchy, De Tocqueville argues that the courtier spirit is even more prevalent within a democracy where the many are within reach of the pinnacle of power, therefore making demeaning servility much more common place.

De Tocqueville concludes this discussion by stating that the greatest danger for American republics comes from the omnipotence of the majority. He writes, “If ever freedom is lost in America, one will have to blame the omnipotence of the majority.”

In laymen’s terms, De Tocqueville is cautioning that the minority in this country will only take so much before it pushes back, and that push back will be most unpleasant. This closing warning is ominous and one that today’s “thought-police” in America would be wise to recognize.

Tom Hand is the visionary behind Americana Corner, an organization dedicated to sharing compelling narratives of significant events, influential leaders, and foundational documents that have shaped the United States. Since 2020, Tom has written and produced over 200 articles and videos, aiming to rekindle Americans’ patriotic spirit and remind them of the nation’s remarkable legacy. Beyond his creative work, Tom established the Preserving America Grant and Partners programs, donating millions to support history organizations nationwide. All proceeds from his book, “An American Triumph: America’s Founding Era through the Lives of Ben Franklin, George Washington, and John Adams,” support these programs. His unwavering dedication to promoting patriotism and preserving America’s heritage makes him an invaluable advocate for the Great American Story.

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Essay 33: The Majority In The United States Is All-Powerful And The Consequences Of That (Vol. 1 Pt. 2 Ch. 7, Subchs. 1-3)

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Guest Essayist: Jeff Broadwater

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 235 (start at chapter 7 heading) – 243 (stop at “On the Power that the Majority in America…) of this edition of Democracy in America.

On the Omnipotence of the Majority in the United States and Its Effects

For De Tocqueville, unchecked majority rule within the states presented problems. The national government, he observed, was more independent of public opinion and largely limited itself to foreign affairs, leaving state governments to dominate American society.

De Tocqueville argued that state constitutions dangerously inflated the power of the majority. State legislators served short terms and were elected directly by the people, and so reflected “the daily passions of their constituents.” Bicameral legislatures failed to check the majority because both houses represented the same social class and both were popularly elected. The executive and judicial branches could not serve as effective checks. State governors, who were often selected by the legislatures for short terms of office, lacked the necessary independence. In several states, even judges were elected, and legislators controlled their salaries. Making matters worse was a growing tendency on the part of voters to limit lawmakers’ discretion with binding instructions.

Popular attitudes tended to enhance the authority of the masses. “The moral empire of the majority,” De Tocqueville wrote, “is founded in part on the idea that there is more enlightenment and wisdom in many men united than in one alone.” Americans also believed “that the interests of the greatest number ought to be preferred to those of the few.” They could accept what De Tocqueville called “the tyranny of the majority” because Americans were not divided by “irreconcilable interests;” minority parties could always hope to form a majority in the future. Unfortunately, he added, the will of the majority was so overbearing that it could not be delayed long enough “to hear the complaints of those it crushes,” a tendency that he warned could have dangerous consequences in the future.

The Omnipotence of the Majority and Legislative and Administrative Instability

Whatever dangers America’s freewheeling democracy posed to the nation’s future, De Tocqueville saw immediate problems in its legal system and in public administration. State constitutions aggravated the instability inherent in democracy—he assumed public opinion could change quickly and dramatically—by consolidating power in state legislators and then providing for their annual election. As evidence of instability, De Tocqueville pointed to the state constitutions themselves: almost all of them had been amended within the last thirty years. Ordinary statutes meanwhile proliferated. He considered Massachusetts to be the best governed of the states, but new bills passed by the Massachusetts assembly since 1780 had already filled three large volumes, and that was after an 1823 revision in which a number of obsolete laws were repealed.

Democratic instability also frustrated attempts to implement policy. De Tocqueville cited prison reform in Pennsylvania as an example. In the 1780s, reformers in the Keystone State–he apparently had the Quakers in mind—had pushed for the construction of new prisons built with rehabilitation in mind. But because the entire system could not be reconstructed at once, the older, more punitive prisons, which De Tocqueville described as “dungeons,” persisted, and once public interest in prison reform waned, grew even more brutal.

The Tyranny of the Majority

In addressing the tyranny of the majority, De Tocqueville confessed a personal dilemma: he deplored the idea that the majority had the right to do whatever it pleased, and yet he conceded that all legitimate political power was derived from “the will of the majority.”

De Tocqueville attempted to resolve his dilemma by appealing to universal principles of justice which transcended the laws of a single jurisdiction. When he refused to obey an unjust law, he wrote, he was appealing “from the sovereignty of the people to the sovereignty of the human race.” If one nation might abuse another, and if one individual might abuse a neighbor, why would we deny the capacity of a majority faction to violate the rights of a minority? He rejected “mixed government,” in which competing interests were combined to check and balance one another, as a solution. England, often cited as a model of mixed government, was, De Tocqueville argued, actually an aristocracy. Some superior “social power” would always exist, but justice required it be subject to a moderating influence.

Majority tyranny was rare in America, but when it erupted the law could not contain it. At the start of the War of 1812, pro-war mobs in Baltimore repeatedly attacked the offices of an anti-war newspaper and killed one of the editor’s defenders. In Pennsylvania, free blacks enjoyed a legal right to vote, but fearing white reprisals, feared to exercise it. The states, De Tocqueville concluded, needed executives and judges with greater independence and legislators who would represent the majority without being “the slave of its passions.”

Majority Power and the Arbitrariness of Officials

Majority support, De Tocqueville observed briefly, often permitted American officials to exceed their authority and act arbitrarily, a habit he feared might “one day become fatal” to freedom.

Jeff Broadwater’s publications include Jeffferson, Madison, and the Making of the Constitution (2019); James Madison: A Son of Virginia and a Founder of the Nation (2012); and George Mason, Forgotten Founder (2006). He also co-edited, with Troy Kickler, North Carolina’s Revolutionary Founders (2019). He currently serves as the book review editor for the Journal of the North Carolina Association of Historians.

 

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Essay 32: What Are the Real Advantages That American Society Derives From the Government of Democracy (Vol. 1 Pt. 2 Ch. 6, Subchs. 3-5)

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Guest Essayist: Jason Stevens

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 227 (Start at heading, “On the Idea..”) – 235 (Stop at Chapter 7 heading) of this edition of Democracy in America.

 

The Real Advantages Americans Derive from Democratic Government

De Tocqueville called America the “country of democracy par excellence.” To understand why, one must recollect the real advantages American society derives from democratic government. Among those numerous advantages Americans gain from living in a democracy, De Tocqueville argued, are the idea of individual rights, the respect for the law, and the vigorous political activity that reigns in all parts of the body politic.

1. The Idea of Rights

There has never been a great and prosperous people without some notion of individual rights. One of the key advantages of democratic society is respect for the idea of rights, especially the right of property. Americans seem innately to understand that the rights that they want to claim for themselves, and that they want to be respected by others, must belong to everyone in equal measure. The result is a form of the golden rule; so that one’s own rights are not violated, one does not attack those of others.

Through this idea of equal rights, the people over time learn the habits of living free. “One cannot say it too often,” De Tocqueville said, “There is nothing more prolific in marvels than the art of being free; but there is nothing harder than the apprenticeship of freedom.” As opposed to despotism, which pretends to be a quick fix for all of society’s ills but leaves everyone worse off and miserable, “Freedom…is ordinarily born in the midst of storms, it is established painfully among civil discords, and only when it is old can one know its benefits.” Freedom, in other words, is hard work, and it takes time to realize its advantages, but there is no surer path to individual and societal happiness.

2. Respect for the Law

In addition to the idea of rights, respect for the rule of law is another real advantage that American society derives from democracy. The respect Americans share for the law derives from the personal self-interest that each has for seeing the law obeyed and upheld by everyone. “[I]n the United States,” De Tocqueville claimed, “each finds a sort of personal interest in everyone’s obeying the laws; for whoever does not make up a part of the majority today will perhaps be in its ranks tomorrow.” Each follows the law because it is in one’s own interest that everyone obeys the law, which is the product of the people themselves. Since the majority are responsible for making the law, the people view obedience not as an act of servitude but as an expression of freedom. For in following the law, they are in effect ruling themselves: “However distressing the law may be,” De Tocqueville discovered, “the inhabitant of the United States submits to it without trouble, therefore, not only as the work of the greatest number, but also as his own.” Respect for the rule of law is the single greatest expression of self-government.

De Tocqueville is not saying, and democratic peoples do not believe, that there is no such thing as a bad law. Far from it. The argument is that bad laws, while they remain in effect, ought to be obeyed by everyone until such time as the people repeal them. “[T]he people in America obey the law not only because it is their work,” according to De Tocqueville, “but also because they can change it when by chance it hurts them.” In this way, respect for the rule of law increases the overall happiness of the people.

3. Political Activity

Finally, democratic government produces the vigorous political activity that is seen in all parts of the body politic. “When one passes from a free country into another that is not,” De Tocqueville mused, “one is struck by a very extraordinary spectacle: there, all is activity and movement; here, all seems calm and immobile.” Freedom creates energy and a willingness to labor that fuels “the prodigious motion of industry.”

Perhaps reflecting on his own first impressions of America, De Tocqueville claimed, “Scarcely have you descended on the soil of America when you find yourself in the midst of a sort of tumult…Around you everything moves.” In one place, the people gather to learn if a church should be built, and in another place, they deliberate on the choice of a representative; here, the people are restless to decide on some matter of local improvements (what we might call infrastructure), and there, they attend a town meeting to discuss the planning of a school or park. The mighty engine of self-government is always on the move, spreading and deepening the habits of freedom and the happiness of the people.

All in all, De Tocqueville suggests that if “the principal object of a government” is “to procure the most well-being for each of the individuals who compose it and to have each avoid the most misery”—if the purpose of government is to increase the happiness of the most people—then the answer is to “equalize conditions and constitute the government of a democracy.”

 

Jason W. Stevens is Assistant Professor of Political Science at Ashland University, where he teaches political thought and history courses with fields of expertise in the American Founding, Abraham Lincoln, and political philosophy. He is also Co-Director of the Ashbrook Scholar program.

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Essay 31: What Are the Real Advantages That American Society Derives From the Government of Democracy (Vol. 1 Pt. 2 Ch. 6, Subchs. 1-2)

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Guest Essayist: Brenda Hafera

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 220 (start at Chapter 6 heading) – 227 (Stop at heading, “On The Idea Of Rights…”) of this edition of Democracy in America.

How to Re-ignite Patriotism in America

Has patriotism become unfashionable? Last year, a Wall Street Journal poll reported that just 38% of Americans view patriotism as very important. That’s down from the 70% who said the same in 1998. The question is, why?

De Tocqueville, the famous French author who loved America, offers some insights. In his essay, “On Public Spirit in the United States,” he describes two kinds of patriotism, warns of the moments when patriotism fades, and offers a solution for patriotic renewal.

The first kind of patriotism is instinctive. People love their home, and that “love intermingles with the taste for old customs, with respect for ancestors and memory of the past.” This patriotism, more monarchical in character, rests on old orders and traditions. It ebbs and flows, reigniting and then subsiding in times of war and peace.

In contrast, republican patriotism is steady, and the citizen “interests himself in the prosperity of his country at first as a thing that is useful to him, and afterwards as his own work.” He connects his character and destiny with that of his country. Republican patriotism is based in reflection, practice, and self-interest. It “is born of enlightenment; it develops with the aid of laws, it grows with the exercise of rights, and in the end it intermingles in a way with personal interest.”

De Tocqueville was astonished and admired that such patriotism reigned in America, despite its citizens not having resided long on the land. He even quipped that a traveler could not criticize anything about America to an American, except perhaps the climate and the soil, “and still, one finds Americans ready to defend both as if they had helped to form them.”

But “sometimes a moment arrives in the lives of peoples when old customs are changed, mores destroyed, beliefs shaken, the prestige of memories faded away.” The land “become a lifeless land in their eyes,” and they are dismissive and disparaging of their ancestors and legislators. Neither form of patriotism appeals any longer to the hearts and minds of the people.

It is difficult to read De Tocqueville’s description of such a moment without thinking of our current time. Civic education is in a sorry state. We tear down statues and with them our memories, good or bad. Four out of 10 Zoomers believe the Founders can be more accurately described as villains, rather than heroes, according to psychologist Jean Twenge’s Generations. It is perhaps no surprise that patriotism matters less for the technological generations who have retreated to the online world and avoid in-person conflicts, or even everyday niceties.

De Tocqueville’s prescription for patriotic renewal is for men and women to participate in government and society. As he famously observed, Americans formed civic associations for even seemingly mundane tasks. Such involvement allows citizens to come together for the purpose of repairing a community center or conducting a fundraiser without care for partisan political disagreements. Engaged citizens begin to see each other as neighbors first, not political adversaries, and view differences through the lens of good will rather than suspicion.

More fundamentally, America’s political system being animated by consent of the governed affords citizens a sense of ownership of their country. It is the principle “all men are created equal” which demands public opinion be treated as sovereign, making that principle the ultimate source of American patriotism. To understand this more fully, we might turn to one of De Tocqueville’s most noteworthy American contemporaries, Abraham Lincoln.

When commemorating the 4th of July, Lincoln observed that many Americans were no longer direct descendants of those who fought the Revolution. As time went on, would the unity and patriotism of America erode? He responded that, as Americans look to the Declaration, they will find that they:

have a right to claim it as though they were blood of the blood, and flesh of the flesh of the men who wrote that Declaration, and so they are. That is the electric cord in that Declaration that links the hearts of patriotic and liberty-loving men together, that will link those patriotic hearts as long as the love of freedom exists in the minds of men throughout the world.

It is the Declaration that defines and unites Americans. It gives us a principle to strive towards, an ideal that we are asked to further and fulfill, inviting us to love America because it is good in its mission, even if imperfect. Perhaps the most significant source of the current decline of patriotism is that we no longer understand, and maybe even do not believe, the truth of this great principle.

Our call today is to take it seriously, to wrestle with it. We may find that it not only makes us patriotic, but ennobles us, both as individuals, and as a people.

Brenda Hafera is the Assistant Director and Senior Policy Analyst at The Heritage Foundation’s Simon Center for American Studies.

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Essay 30: Government By Democracy In America (Vol. 1 Pt. 2 Ch. 5, Subch. 15) of Democracy in America by Alexis De Tocqueville

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Guest Essayist: Joseph A. Ledford


Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 217 – 220 (to heading “What are the Real Advantages…”) of this edition of Democracy in America.

The Manner In Which American Democracy Conducts Foreign Affairs.

Governing the external affairs of a state involves a particular set of skills. Foreign policy requires the combined use of patience, prudence, secrecy, and long-term strategic thinking. It entails grave risks and difficult trade-offs. Decision-makers, who should be free of the passions that grip the people, must make cold-blooded calculations in the national interest. Such is the view of De Tocqueville. In contrast to the “good sense” of democracy guiding domestic affairs, De Tocqueville observes that foreign affairs demand these aristocratic attributes. Certain qualities of democracy stop at the water’s edge.

As De Tocqueville explains, American elites of the Early Republic possessed the leadership qualities necessary to ensure that democracy flourished at home while America advanced its interests abroad. Although seemingly a contradictory stance, De Tocqueville’s advocacy for their role in directing foreign affairs was not incompatible with his republican predilection. Rather, as he contends, aristocrats and commoners alike had a shared interest in the prosperity and security of the United States.

And it was none other than George Washington and Thomas Jefferson whom De Tocqueville saw as the Founding Fathers of American diplomacy. They charted the course for America’s engagement with the world.

Washington, the American Cincinnatus, impressed De Tocqueville above all with his “inflexible character.” De Tocqueville, who abhorred the French Revolution, admired how Washington’s adroit statecraft prevented a Franco-American alliance during the French Revolutionary Wars. In doing so, Washington had incurred the steep cost of bitter partisan politics over his stance of neutrality. Washington braved this domestic upheaval through the Genêt affair and especially during the implementation of the Jay Treaty with Great Britain. Despite these immediate repercussions, however, Washington’s approach to foreign affairs permitted the establishment of the nation in the long run. America eventually secured itself from the meddling of European powers, although it was hard-won through the Quasi-War and the War of 1812.

On September 19, 1796, George Washington’s Farewell Address appeared in Claypoole’s American Daily Advertiser, an eloquent political testament that resonated with De Tocqueville nearly four decades later. First drafted by James Madison in 1792, and then shaped by Alexander Hamilton in 1796, Washington’s Farewell Address makes the classic case for unity, neutrality, and reciprocity, all of which were needed to transform America into a great power.
In Democracy in America, De Tocqueville elects to include an extract from Washington’s Farewell Address. It highlights the first president’s timeless principles for conducting foreign policy. In the passage, Washington prevails upon Americans to seek free trade, abide by treaties, and avoid permanent alliances to keep Americans from involving themselves in European wars.

Washington aimed for peace and union, not war and disunion. This wisdom transcended political divides. Avoiding messy entanglements with European powers proved to be a bipartisan effort among American statesmen. Despite Jefferson’s fierce disagreements with Hamilton, De Tocqueville identifies Jefferson as a kindred spirit of Washington. Once an ardent political foe, the Democratic-Republican shared the Federalist’s vision for American foreign policy when he ascended to the presidency.

To demonstrate the continuity, De Tocqueville cites a maxim from Jefferson. It reflects the third president’s general position on how America should manage its relationship with other countries. “That Americans ought never to demand privileges from foreign nations in order not to be obliged to accord them themselves,” De Tocqueville quotes from Jefferson. In a footnote, De Tocqueville acknowledges that he cannot provide a source for Jefferson’s words. Nevertheless, this sage line captures the sentiment of Jefferson’s precept from his first inaugural address, in which he famously declared “peace, commerce and honest friendship with all nations, entangling alliances with none.”

“We are all Republicans, we are all Federalists,” Jefferson also proclaimed at his first inauguration. Indeed, De Tocqueville understood the conduct of American foreign affairs this way.

For De Tocqueville, as well as Washington and Jefferson, America was geopolitically exceptional. Given that the United States was located in the New World, the struggles of the Old World did not concern Americans. Without being mired in European power struggles, Americans could continue to grow their nation, develop their democracy, and thrive. One day, though, America would become powerful enough to pursue more ambitious external affairs.

 

Joseph A. Ledford is a Hoover Fellow at the Hoover Institution at Stanford University.

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Essay 29: Government By Democracy In America (Vol. 1 Pt. 2 Ch. 5, Subchs. 12-14)

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Guest Essayist: Paul Carrese

Our Commissioners | Office of the Texas Governor | Greg Abbott

Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 120 (starting at the heading “On The Election of the President”) through 130 (stopping at the heading “On The Federal Courts”) of this edition of Democracy in America.

These sub-chapters on America’s “Government by Democracy” address a crucial theme of the work: constitutional republic versus democracy. De Tocqueville befriends the new phenomenon of mass, egalitarian democracy, especially its success in America (so far). Yet as a genuine friend, he notes both weaknesses and strengths. His tough-love message: beware too much of a good thing. Too much democracy, and its ideal of equality, undermines America’s other great principles. These include: liberty and self-government; the rule of law; moral principles mostly stemming from Christianity yet sustained by religious liberty; and, striving for happiness (per the Declaration) in ways that ennoble life, not cheapen it. The tough-love messages in these sub-chapters address: public morality, particularly corrupt officials; can our democratic spirit sustain hard struggles (e.g. extended wars); can the people heed the wiser policy judgments of “statesmen;” and, can we exercise the self-control and far-sighted thinking necessary to survive and prosper in a dangerous world.

A crucial passage in the “Efforts” sub-chapter reiterates De Tocqueville’s praise of the United States as a federal republic with a complex Constitution (see e.g. Vol. I, Part 1, ch. 8 – praising the Constitution’s offices for statesmen in the Presidency and Senate, and elevated federal judges, balancing the democratic House). The Constitution keeps America a democratic republic, making the best of our democratic-egalitarian spirit. “Efforts” also notes that “a great democratic-republic has never been seen” ( 212). America is the first powerful, successful such republic in human history. However, here and in the sequel – on “the Power” of self-control American democracy shows – De Tocqueville wonders whether our “democracy,” the dominance in American politics of popular will, allows the necessary self-control and far-sighted thinking. In “Efforts” he concludes that democracy “will in the long term augment the real strength of society,” but aristocracies, monarchies, and despotisms still can gather more focused power (in the mid-19th century). Nonetheless, there is a path America could take, offering hope:

If a democratic country remained subject to a republican government for a century . . . it would be wealthier, more populous, and more prosperous than neighboring despotic [authoritarian] states; but . . . it would have run the risk several times of being conquered by them. (214)

Thus, another theme here: can Americans sustain the civic virtues – including “public morality” – to abide by our republican, constitutional forms of government; thereby sustaining a more honorable politics; and, finding policies to promote greatness and security. Today we don’t think of politics in terms of virtues, vices, or the character of the people and of our leaders; thus, we don’t use “statesman” regularly. Yet: looking across the 190 years since De Tocqueville published these sub-chapters, don’t they capture enduring issues of American self-government, along with predicting our survival – indeed, power and greatness – in a still-dangerous world?

Further ideas to consider:

Corruption and Vices of Those Who Govern in Democracy; Effects on Public Morality
Difficulty maintaining “public morality” in democracy; strong temptations to “vulgar” wealth-seeking by officials – and, to popular suspicions against officials – versus the dignity, honorableness, and “public conscience” a democratic-republic should seek.

Of What Efforts Democracy Is Capable

Phony, authoritarian democracy versus genuine.

De Tocqueville considers only the Revolutionary War an existential crisis for America; he never mentions the War of 1812. Yet, a few chapters ahead, he discusses the prospect of a civil war – over slavery. Can Americans sustain the taxes, and military service either voluntary or conscripted, needed in a war of survival? What wars has America fought to substantial victory since 1830? What wars in the past 60 years have we abandoned? How is America’s military faring after 50 years of the all-voluntary military policy? Democracies prefer peace; can make “a sudden and vigorous effort” in a crisis; but may not be capable of “braving great storms . . . for a long time” (p. 214).

Democracies lack a “clear perception of the future,” of the long-term value gained via difficulties, because “the people feel much more than they reason;” lacking the “enlightenment and experience” that authoritarian governments have regarding war, international challenges (p. 214).

The Power American Democracy Generally Exercises Over Itself

The wisdom of “statesmen” versus “the difficulty that democracy finds in defeating the passions and silencing the needs of the moment in view of the future;” that “the people are surrounded by flatterers,” and we often fall for the easy path offered.

De Tocqueville’s harsh criticism of Indians (the typical term in the 19th century), and the Spanish and indigenous peoples of South America, reflects a time when democratic republics were new and fragile; he emphasizes the basic reality that no people and politics is successful unless prosperous, ordered, and powerful enough to defend itself. Later in this Part he severely criticizes America for betraying the principles of the Declaration in its treatment of African slaves and indigenous peoples; but also predicts America will someday be one of the world’s two dominant states – standing for liberty – while Russia stands for authoritarianism. He praises America, even if flawed, for being ordered enough to achieve greatness – by securing the power to defy authoritarianism; yet this realistic lens also produces his harsh judgments about other peoples.

Paul Carrese is a Professor in the School of Civic & Economic Thought and Leadership at Arizona State University, and its founding Director, 2016-2023. Formerly he was a professor at the U.S. Air Force Academy and co-founded its honors program blending liberal arts education and leadership education. He teaches and publishes on the American founding, American constitutional and political thought, civic education, and American grand strategy. He has held fellowships at Oxford University (Rhodes Scholar); Harvard University; the University of Delhi (Fulbright fellow); and James Madison Program, Princeton University; and currently is a Senior Fellow of the Jack Miller Center for Teaching America’s Founding Principles and History.

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Essay 28: Government By Democracy In America (Vol. 1 Pt. 2 Ch. 5, Subchs. 4-5)

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Guest Essayist: Samuel Gregg

Our Commissioners | Office of the Texas Governor | Greg Abbott

Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages  199 (start at at heading “On Public Costs Under The Empire of American Democracy” – 210 (stop at heading “The Corruption and Vices Of Those Who Govern In Democracy…”)

Government By Democracy In America Vol. 1 Pt. 2 Ch. 5, Subchapters. 8-11 – Public Expenses Under The Rule Of American Democracy, Instincts Of American Democracy In The Fixing Of The Salaries Of Civil Servants, Difficulty Of Discerning The Reasons Which Persuade The American Government Toward Economy, Can The Public Expenditure Of The United States Be Compared With That Of France?

Though well-known for his political and social commentary, De Tocqueville devoted considerable attention throughout his life to issues of political economy. He was well-versed in the economic writings of thinkers like Jacques Turgot, Adam Smith, and John Stuart Mill. De Tocqueville also explored some of the pressing economic topics of his time in texts such as his Memoir on Pauperism (1835).

Educated Europeans of De Tocqueville’s era were well-aware of the burgeoning economic power of the American republic that he visited for 10 months between 1831 and 1832. In Democracy in America, however, De Tocqueville’s thoughts on economic topics revolved around questions concerning the effects of democracy upon government expenditures.

Public expenditures in Western countries in the nineteenth century as a proportion of national Gross Domestic Product (GDP) were much less than those of the twentieth and twenty-first centuries. But the advent of democratic government, according to De Tocqueville, was likely to increase pressures for ever-growing state spending.

In Democracy in America, De Tocqueville argues that citizens in democratic societies were expected to think more about the proper responsibilities of government. The more they do so, De Tocqueville states, the more that “a host of needs arises that they had not felt at first and which one can only satisfy by having recourse to the resources of the State.”

At the same time, De Tocqueville observes, democracies were more prone to sudden changes of policies. That meant many publicly funded government activities go unfinished or take on a haphazard character. This resulted in democratic governments making numerous “unproductive expenditures.” Such inefficiencies were compounded by the fact that “continuous surveillance” of public officials in charge of implementing budgets was lacking in America.

Working against these propensities to expand public spending, De Tocqueville notes, were the equalizing tendencies of American democracy. These generated skepticism about the worth of expending large sums on the “principal agents” of government.

Americans were willing to pay good salaries to “officials of secondary rank.” Yet their democratic instincts led them to spend less on “the great officers of the State.” The reason, De Tocqueville argued, was that Americans looked at such office holders through the lens of their own social and economic circumstances. This means, he wrote, that democratic society “give those who govern it hardly enough to live honestly”

That parsimonious mindset affected Americans’ willingness to engage in public expenditures on government buildings and public events. On one level, this reflected Americans’ habit of viewing this spending from the standpoint of their own often modest personal circumstances. But another element that disinclined Americans to support government spending on such things was the fact that Americans were as much “a commercial people” as they were “a democratic nation.” Habits like thrift, saving, and deferred gratification that dominated Americans’ business and economic activities discouraged them from attaching much worth to public displays of ornamentation.

De Tocqueville closes his commentary on public expenditures in America by comparing it to the situation in his native France. He stresses the difficulties of making such comparisons in light of limited information about this topic in both countries.

In France, De Tocqueville notes, the central government’s expenses were known, as were those of the eighty-six departments into which France was administratively divided. Expenditures at the town level, however, were unknown. A similar pattern, De Tocqueville observes, manifested itself in America. The Federal government published “the total of departmental expenditures.” One could also easily obtain “the particular budgets of the twenty-four states of which [the Union] is composed.” Yet at the level of county and town, De Tocqueville wrote, such information was near-impossible to find.

De Tocqueville nevertheless maintained that taxation and government expenditures in France were much higher than in America. For one thing, he noted, France had a much larger army and a navy that dwarfed America’s. France’s national debt was also larger than America’s because France had been subject to two invasions in De Tocqueville’s lifetime. America’s physical isolation from Europe, however, meant that it did not face this prospect.

That said, De Tocqueville thought that it was “mistaken” for the “partisans of democracy” to claim that democratic government “is genuinely economical.” Democracy, he argued, did not mean “cheap government.” There was nothing in democracy’s design, De Tocqueville believed, which would prevent it from raising taxes “as high among them as in most of the aristocracies or monarchies of Europe.” The moment that “great troubles came . . . to assail the peoples of the United States,” he fully expected America to increase taxes and its public expenditures.

In this, as in so many other matters, De Tocqueville proved to be correct.

 

Samuel Gregg is the Friedrich Hayek Chair in Economics and Economic History at the American Institute for Economic Research. In 2024, he was awarded the Bradley Prize.

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Essay 27: Government By Democracy In America (Vol. 1 Pt. 2 Ch. 5, Subchs. 6-7) 196-199

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Guest Essayist: Roberta (Bobbi) Herzberg

Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 196-199 (stop at heading “On Public Costs Under The Empire of American Democracy”) of this edition of Democracy in America.

An Analysis of Democracy In America (Vol. 1 Pt. 2 Ch. 5, Subchs. 6-7) – The Arbitrary Power Of Magistrates Under The Sway Of American Democracy, Administrative Instability In The United States.

Today, many citizens worry that bureaucrats are unaccountable and unresponsive to the interests of majorities, while other citizens worry that the bureaucracies are too politicized and too open to manipulation. As we can see from these selections of De Tocqueville, this is a long-standing concern for democratic governance. In these chapters, De Tocqueville suggests that democratic systems can be as arbitrary and unstable as despotic states because democratic majorities, just as a despot, can press the administrators to follow their desires. As a result, he argues that democratic majorities do not worry about the power of administrators because they believe that those administrators work on their behalf. If interests of a democratic majority change, they can simply change the actions of the administrators or the administrators themselves. As De Tocqueville states:

In democracies, the majority being able to take power each year out of the hands in which it had entrusted it, also does not fear that it may be abused against itself. A master at making its will known at each instant to those who govern, it would rather abandon them to their own efforts than chain them to an invariable rule that by limiting them would in a way limit itself (196).

As a result, majorities and the administrators they directed could act at will to pursue the majority interests. De Tocqueville worried that this created an instability in society that permitted some potentially dangerous actions by bureaucrats. As he argues:

Nowhere has the law left a greater part to arbitrariness than in democratic republics, because in them, what is arbitrary does not appear fearful. One can even say that the magistrate becomes freer as the right of electing descends further and as the time of the magistracy is more limited (197)
He argued that responsiveness to the majority took precedence over consistent decisions that could form a meaningful rule-of-law.

As an alternative to this arbitrary rule, De Tocqueville suggests that democratic states divide power, as exists in a limited monarchy, which provides both the stability and the energy needed to create the proper balance between effective government and individual liberties. Under this divided plan, both the monarch and democratic majorities will prefer the adoption of regular rules for administrators to follow over the constant tug of war between these divided interests:

The same cause that brings the prince and the people to render the official independent brings them to seek guarantees against the abuse of his independence, so that he does not turn against the authority of the one or the freedom of the other. Both therefore agree on the necessity of tracing out a line of conduct in advance for the official, and see their interest in imposing rules on him from which it is impossible for him to deviate. (198)

The result is the beginning of the arguments in favor of a professionalized administrative state over one that is directly responsible to democratic preferences. Today, the professionalization of the bureaucracy under civil service rules, first established with the Pendleton Act of 1883 and updated by the Civil Service Reform Act of 1978, significantly reduces this link to democratic change that De Tocqueville feared. But, instead, it introduces the risk of severing the bond to democratic interests that made Americans not fear the magistrate. It may no longer be the case that the government is us in the way that De Tocqueville reflects in this selection.

For De Tocqueville, good administration required a balance of democratic input and knowledge of administrative science that only develops and matures with experience across generations: “the art of administering is surely a science; and all sciences, in order to make progress, need to bind together the discoveries of different generations as they succeed each other.” (198) He argues that the instability in a pure democratic system prevents such learning and growth and that this limited the effectiveness of American governance:

It is very difficult for American administrators to learn anything from one another. Thus, they bring to the conducting of society the enlightenment that they find widespread within it, and not knowledge that is proper to them. Therefore, democracy, pushed to its final limits, harms progress in the art of governing (199)

For De Tocqueville, the success of democracy depends heavily on the education and development of the citizenry. It is not surprising, therefore, that he focused so heavily in Democracy in America on the role of civil society as a training ground essential to the successful self-governance of a democratic republic. The skill sets built in those interactions act as a cross-pressure to the desire for constant and immediate change he associates with pure democracy. Without the voluntary art of association which he observed in his travels through America, such an unstable and arbitrary system would be untenable. These cautions come out clearly in Volume Two of Democracy in America, published just 5 years after these selections from Volume One, and are at the heart of his critique and analysis of The French Revolution in The Old Regime and The Revolution. De Tocqueville was a prescient analyst of the strengths and the challenges of building a properly functioning democratic system. We can learn much by continuing to keep his insights and cautions in mind.

Roberta (Bobbi) Herzberg is a Distinguished Senior Fellow for the F. A. Hayek Program for Advanced Study in Philosophy, Politics, and Economics and a Senior Research Fellow at the Mercatus Center at George Mason University and Emerita Associate Professor in political science at Utah State University (USU), where she served as department head and administrative director of The Institute of Political Economy. Dr. Herzberg currently serves as president of the Society for Development of Austrian Economics and was president of the Public Choice Society from 2014-2016. Dr. Herzberg received her Ph.D. in political economy from Washington University in St. Louis. She writes and speaks regularly on public policy, public choice, institutional analysis, civil society, and the Bloomington School.

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Essay 26: Government By Democracy In America: Influence that American Democracy Exerts on Electoral Laws

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Guest Essayist: James Clinger


Our Commissioners | Office of the Texas Governor | Greg Abbott

 

Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 192 (start at heading Influence that American Democracy Exerts on Electoral Laws) – 195.

In a span of a few pages in the first volume of Democracy in America, Alexis De Tocqueville discusses the implications of the frequency of American elections and the significance of the un-exalted position of civil servants in the United States. In each case, De Tocqueville’s arguments hinge on the importance of time horizons in understanding the behavior of public officials in the nation.

De Tocqueville visited the United States in 1831, along with his friend and collaborator, Gustave de Beaumont, officially to do research on penal conditions in the United States. This did result in a report that was presented to the French government, but of more significance was De Tocqueville’s book, Democracy in America. This was an analysis of more than government and politics, but also social conditions and a civic society that De Tocqueville believed gave rise to a form of governance that was unknown in Europe. De Tocqueville based his conclusions on observations carried out over several months. De Tocqueville visited seventeen of the twenty-four states then making up the union. He also briefly traveled through a bit of Canada. He only spent a few weeks in Washington, DC, so the bulk of what he learned about the country came from witnessing happenings outside the capitol. His observations also took place in a year in which no presidential or congressional elections were held. Much of what he learned came from witnessing politics and society at the local level.

Influence Which American Democracy Has Exercises On Electoral Laws

In remarking on the relative frequency of American elections, De Tocqueville claimed that “When election comes only at long intervals, the state runs a risk of being overturned in each election.” The parties involved perceive that there is much at stake in the election, and the winning side will “seize for themselves a fortune that comes so rarely within their reach.” If elections occur more frequently, the defeated candidates are more “patient.” In short, their time horizons adapt to the prospect of a change in their prospects in a soon to be held election. Frequent elections cause a good bit of “unrest for the state,” largely by the enactment of policies that are unstable since they are often reversed. Yet De Tocqueville believes that most Americans seem to have chosen the dangers of some instability over the threat of calamitous and tumultuous changes when elections are few and far between. Some of the founders, such as Alexander Hamilton and Thomas Jefferson, decried this instability in laws, but their concerns were not persuasive enough to sway most state lawmakers, who crafted the election laws. De Tocqueville’s conclusions were probably based on his observations of state and local elections, and their aftermath. There were no federal elections at the time of his travels to America.

Modern social science research has explored the implications of election frequency. Much of that research examines effects on voter turnout, rather than the behavior of candidates and parties. A phenomenon sometimes called “voter fatigue” or “ballot fatigue” has been found when elections occur frequently or if the ballots are too long. Under these circumstances, voter turnout declines as the number of elections increases over a fixed period of time. Because in America voters have opportunities to vote in federal, state, and local elections, often held on different days of the calendar, elections of some sort were and are held quite frequently. Party primary elections also add to the number of times that voters go to the polls, but primaries did not exist in De Tocqueville’s day. Some research does address the effect of the electoral cycle on the behavior of elected officials. In cases on elected officials with longer terms, such as U.S. senators, voting behavior in their chamber is relatively independent of their constituencies’ preferences but becomes more representative of constituency desires later in their terms as the next election approaches.

“Public Officials Under the Empire of American Democracy”

De Tocqueville also had much to say about the impact that the “empire” of American democracy had on public officials, particularly civil servants. One of the notable aspects of the way that public officials behave appears to be related to that they “remain intermingled with the crowd of citizens: they have neither palaces, nor guards, nor ceremonial uniforms” generally working without uniforms, badges, or distinctive ornaments of office that set them apart from the general population. In a democracy, De Tocqueville argued, “government is not a good; it is a necessary evil.” Public officials are “accorded a certain power” but beyond that any “external appearance of power” would “needlessly offend the public’s sight.”

This disdain for external and pretentious ornaments of office is also related to the issue of time horizons. Privileges (and power) of office “are passing; they depend on the place and not the man.” The administrative positions in office are temporary. They are paid positions, otherwise, the government would be staffed by wealthy amateurs who can afford to serve without official remuneration. This would create a “class of wealthy and independent officials, to form the core of an aristocracy.” In democratic states “all citizens can obtain posts” but “all are not tempted to solicit them.” In a sense, both formally elected and administrative positions are filled by the “principle of election.” The common voters select the elected officials, and the elected officials “elect” those holding administrative positions. In each instance, the appointments are temporary. They are not long-term, and they cannot be handed down from father to son. For that reason, “there is no public career, properly speaking” and officials have “no assurance in being kept in them [office].” Without the prospect of a long-term career, the pool of people who are both willing and able to work in government is restricted.

It is important to remember that De Tocqueville’s observations took place in a time in which both political and bureaucratic terms in office were much different than they are now. In those days, political careers were more time-limited and incumbent office holders had less advantage in elections than they do now. Furthermore, in De Tocqueville’s day there was no civil service system at any level of government. With the Pendleton Act in 1883, the federal government adopted a civil service system, which provided some job protection for government employees, and state and local governments adopted civil service in some cases before but often after the Pendleton Act. Whether this careerism that can be found in America over the last century or so has made the country less “democratic” is an issue that must be considered at another time.

 

James C. Clinger is an emeritus professor in the Department of Political Science and Sociology at Murray State. For many years, he was the director of the Master of Public Administration Program at Murray State. He now serves as an on-line adjunct instructor for any university willing to hire him and as a substitute teacher for the Henry County (Tennessee) School System.

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Essay 25: Government By Democracy In America

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Guest Essayist: Dr. Colleen Shogan

Our Commissioners | Office of the Texas Governor | Greg Abbott

Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 187-192 (stop at heading Influence that American Democracy Exerts on Electoral Laws).

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De Tocqueville’s Democracy in America is known for its conversational writing about culture, government, and politics. But like all thinkers who blend theory and observations, De Tocqueville can be tricky. It is important to read De Tocqueville slowly and carefully so that we understand the full implications of his arguments.

At the beginning of the chapter, De Tocqueville gives us a hint about what is to come. He wrote, “I know here I am walking on ground that is afire. Each word of this chapter must offend on some points the different parties that divide my country. I shall not speak less than all my thought” (187).

What a remarkable introduction. He tells his readers that he knows his arguments are controversial, so much so that the topics he is about to discuss are on fire! While his opinions will offend almost everyone, he promises honesty in his analysis. These eye-opening sentences place the reader on high alert. We must proceed with caution.

What are De Tocqueville’s shocking revelations? First, he asserts that “in the United States, the most remarkable men are rarely called to public offices” (188). Why is this? Tocqueville argues that although many citizens in a democracy are well-meaning, they don’t know how to achieve the goals they desire (188). Also, democracy encourages envy in its citizens due to the powerful sentiment of equality (189). De Tocqueville comments that Americans “do not fear great talents, but they have little taste for them” (189). Democracy encourages talented citizens to shun a political career, since the vast majority of the electorate does not want them and oftentimes, they have better things to do, such as pursue private wealth.

This seems like a very dismal conclusion from De Tocqueville. If this is the case, then perhaps we should stop reading Democracy in America. The United States is a representative democracy. If democracy does not encourage good people to enter public service as representatives, then it seems as though democracy has no chance of succeeding.

However, it’s important to keep reading. Remember the beginning of the chapter. De Tocqueville likes to make brash statements which catch the attention of a reader. His style is similar to a top-selling thriller writer, who ends each chapter with a scary cliffhanger.

The first sentence of the next section indicates De Tocqueville is about to shift gears. He begins with this pronouncement: “When great perils threaten the state, one often sees the people fortunately choose the most appropriate citizens to save it” (190).

Wait one second! Didn’t De Tocqueville just argue that a problem of democracy is that its citizens don’t choose “remarkable men” for office? This is why De Tocqueville can be puzzling at times. He likes to make bold observations, and then provide counter arguments.

De Tocqueville has at least three caveats to offer, which challenge his pronouncement that representative democracy is endangered. First, when difficult circumstances present themselves, De Tocqueville argues that citizens in a democracy tend to select the best people to lead. This is a big qualification to his earlier argument. After all, the most critical time for a democracy to select the best people is during a crisis. If democracies succeed in picking qualified leaders at these moments, then much of the earlier concerns noted by De Tocqueville may not be valid.

Second, the “mores” (or culture) of a location affect the quality of government (191). De Tocqueville viewed the New England states as the best prepared in this regard, largely because they are the oldest functioning democracies in the United States (191). They’ve had more years to practice democracy, and as it turns out, they’ve gotten better at it over time. This seems a temporary problem, which should resolve as democracies age.

Lastly, De Tocqueville argues that America’s constitutional design is also helpful. While the House of Representatives attracts less distinguished individuals, the Senate is elevated in its membership and rejects “small passions” that can frustrate the public good (192). The bicameral legislative structure seems to mitigate some of the bigger worries De Tocqueville had about representative democracy.

So, which argument is correct? Is it the first notion that democracy frustrates or inhibits the selection of qualified citizens for public office, thus dooming it to failure? Or can we find hope in the second argument, which offers a much more positive assessment about democracy’s future?

Of course, that is why De Tocqueville is such a complicated thinker about democracy. He doesn’t provide all the answers. It’s up to you, the careful reader, to decide. De Tocqueville wants you to keep reading, and to apply your knowledge of history to evaluate his observations.

Remember, De Tocqueville wrote the first volume of Democracy in America in 1835. He could only study and observe about fifty years of American history to frame his opinions. Now, the United States has been a democracy for five times longer than that. This makes studying De Tocqueville today more relevant and compelling than ever.

 

Dr. Colleen Shogan, 11th Archivist of the United States

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Essay 24: On Political Association in the United States (Vol. 1 Pt. 2 Ch.4) of Democracy in America by Alexis De Tocqueville

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Guest Essayist: Michael C. Maibach


Our Commissioners | Office of the Texas Governor | Greg Abbott

 

Essay Read by Constituting America Founder, Actress Janine Turner


Alexis de Tocqueville On Political Association in the United States:

By Michael C. Maibach

In Democracy in America, De Tocqueville dedicates a chapter to “Political Association in the United States.” “The right of association is an English import, and has existed in America since the beginning… Of all the countries in the world, America has taken greatest advantage of association and has applied this powerful means of action to the greatest variety of objectives…

[The American] learns from birth that he must rely on himself to struggle against the evils and obstacles of life.” De Tocqueville has come from the Age of Aristocracy to visit the new Age of Equality. Here he found gone the safeguards of royal order, social standing, and the family name. In this classless society “In the United States, they associate for the goals of public security, commerce and industry, morality, and religion.” De Tocqueville coins the word “individualism” when writing of America. That word alone explains the deep desire of Americans to form voluntary leagues of all manner and size – what Burke called “little platoons.”

“After the press, association is the great means that parties use to get into public affairs to gain the majority. In America, the freedom of association for political ends is unlimited… An association consists of public support by individuals to a doctrine and the promise… of making those doctrines prevail.” Free speech engenders free association, which engenders the freedom of assembly. “There, men see each other; the means of action combine; opinions are expressed with the force and heat that written thought can never attain.” From assembly, parties may be formed – like a nation inside a nation. And it is parties who elect to office those who will make the changes around which all this gathering has inspired.

In America, he writes, political assemblies “do not have… the right to make laws; but they have the power to attack the one that exists and to formulate in advance the one that should exist.” American assemblies exist to lead opinions to change, not to force change through the violence of the mob. “In America, there are factious persons, but no conspirators.” His example is the 1831 Philadelphia convention convened around the Nullification Crisis. While Americans did not turn to violence then, it was ironically a forerunner to the Civil War of 1860 when political assemblies so sharply divided did come to blows.

De Tocqueville writes, “In America associations can never pretend to represent the majority; they only aim to convince it. They do not want to act, but to persuade; in that they are different from the political associations of Europe.” Why? “Of all the causes that cooperate in the United States to moderate the violence of political association, perhaps the most powerful is universal suffrage.” Because male citizens could cast a vote, those elected to office had a deep legitimacy under the designs of the Constitution. “In countries where universal suffrage is accepted, the majority is never doubtful.” The loyal opposition can write, debate, associate and assemble – but using force is never justified given the basic fairness of universal suffrage. “In America, the purpose of associations is to convince and not to compel.”

In sharp contrast, De Tocqueville writes that “In Europe, there are almost no associations that do not claim that they represent the will of the majority… Most Europeans still see in association a weapon of war… the thought of acting next preoccupies all minds. An association does not want to convince, but to fight… In Europe, associations consider themselves in a way as the legislative and executive council of the nation, which itself cannot raise its voice; starting from this idea, they act and command. In America, where in the eyes of all they represent only a minority of the nation, they speak and petition,” not act.

In summary, De Tocqueville’s thesis is that America’s universal suffrage – the idea of free and fair elections – has the great benefit of creating “the loyal opposition” we see in our political assemblies. They talk, assemble, petition, and campaign… they do not tear down the house. They do not turn to violence or law breaking.

But all of this could be at risk today. Americans’ faith in universal suffrage, in “election integrity” has become a significant issue for our Nation. Until a few years ago US election practices did not include ‘early voting,’ ‘ballot harvesting,’ ‘drop boxes’… and the repeal of voter ID requirements. In Virginia we have gone from Election Day to 145 days of early voting! Party poll watchers can monitor voting on Election Day. It is simply impossible for any party to monitor the polls for 145 days.

De Tocqueville closes by writing – “There are no countries where associations are more necessary to prevent the despotism of parties or the arbitrariness of the prince than those in which the social state is democratic. In aristocratic nations, secondary bodies form natural associations that halt abuses of power. In countries where such associations do not exist…a great people can be oppressed with impunity by a handful of factious persons or by one man.” Considering this, America cannot afford to have the mainstay of our faith in self-government undermined by radical, non-transparent election reforms combined with open borders. At some point public trust in our political system will be lost.

 

Michael C. Maibach is a Trustee and Managing Director of the James Wilson Institute and a Distinguished Fellow On American Federalism at Save Our States.

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Essay 23: Freedom of the Press in the United States (Vol. 1 Pt. 2 Ch. 3) of Democracy in America by Alexis De Tocqueville

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Guest Essayist: George Landrith

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Essay Read by Constituting America Founder, Actress Janine Turner

 

Freedom of the Press in the United States
By George Landrith, President, Frontiers of Freedom Institute

Our Founding Fathers saw freedom of the press as a foundational element of being a free and sovereign people. They had seen Redcoats arrest writers and destroy printing presses used to publish papers that were critical of Parliament and the Crown. So they made sure that our First Amendment specifically prohibited the government from abridging the freedom of the press and of speech.

De Tocqueville, a Frenchmen, came to study and analyze democracy in America and what made it work. His seminal work was the book – Democracy in America which he published in 1835. Not surprisingly, it includes an extensive discussion of freedom of the press.

De Tocqueville acknowledged that freedom of the press might be abused at times, but he also understood that freedom of the press, even with its imperfections, prevents great evils of abusive government power used to control and manipulate the people. He grasped that a choice between government censorship and a free press was actually a choice between servitude and independence. And like our Founders, De Tocqueville came down on the side of independence and individual liberty.

One of De Tocqueville’s observations was that in France, the newspapers were highly centralized whereas in America newspapers were dispersed, numerous and local. In America, nearly anyone could start their own newspaper or publication and could argue for the proposals or solutions that he or she thought best. Because of this freedom of the press, political information was widely available throughout the entire nation and covered many different perspectives. Thus, the American public was able to debate and evaluate the various political issues and in many cases come to a national consensus after a robust national debate. The wide array of newspapers and publications that enjoyed the freedom of the press played an important part in this national debate.

Among a free and sovereign people, determining what is true is our job. And we need a full spectrum of information and a robust debate to help us determine what is truth versus what is misinformation. The First Amendment’s free speech and free press protections are the best way to be sure we can decipher fact from fiction and truth from lies. Censorship has proven over hundreds of years to be a poor method for arriving at truth. Our founder’s believed this and interestingly, De Tocqueville came to a similar conclusion.

A brief review or comparison of societies across the globe throughout history reveals a great deal. Every totalitarian dictator in modern history has used censorship to empower themselves and to control and subjugate the masses. No dictator in modern history has protected the right of his political adversaries to express their views. Instead, the expression of dissent is seen as an act of treason and merely disagreeing with those in power can result in punishment.

As an inspired break from this trend of using censorship to control the masses, our Founders guaranteed that we could express our dissent and we could even peaceably assemble with the express purpose of stating our disagreement with the government’s actions.

Both our Founders and De Tocqueville wisely understood that we cannot hope to be a free and prosperous people if freedom of speech and the press is only allowed if the content is approved of by those in positions of government power. And we should never base our approval on the concept of a free press on whether we agree with the content.

I am confronted regularly with ideas and content that I believe to be wrong-headed, but its value is that it facilitates a robust public debate and that debate is an important foundational element of our nation’s freedom and strength. Even if I strongly disagree with the writer’s perspective, the answer is to honestly and fairly critique their argument and explain its errors and provide a better option. But it isn’t helpful to seek to silence them simply because we believe them to be wrong.

Another Frenchman, Voltaire, was quoted by his biographer, Evelyn Beatrice Hall, as having said, “I disapprove of what you say, but I will defend to the death your right to say it.” This is very much inline with the views of our Founders and De Tocqueville.

If we believe in freedom of the press only for those with whom we agree, then we don’t really believe in freedom of the press. Freedom of the press plays a fundamental role in a self-governing society where the people enjoy freedom. If we allow freedom of speech or the press to be eroded, the foundations of our liberty will also be eroded. So being pro-freedom of the press is simply being for American foundations of liberty and against government with totalitarian instincts. We can thank De Tocqueville for his keen powers of observation and analysis in Democracy in America.

George Landrith is the President of Frontiers of Freedom Institute – a public policy think tank devoted to promoting freedom, the Constitution, the rule of law, a strong national defense, free markets, and individual liberty. Mr. Landrith is a graduate of the University of Virginia School of Law, where he was the Business Editor of the Virginia Journal of Law and Politics. He is admitted to the bar in Virginia and California and is also a member of the United States Supreme Court bar. As an adjunct professor at the George Mason School of Law, he taught constitutional law and appellate advocacy.

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Essay 22: Parties In The United States (Vol. 1 Pt. 2 Ch. 2) of Democracy in America by Alexis De Tocqueville

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Guest Essayist: Horace Cooper

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Essay Read by Constituting America Founder, Actress Janine Turner

 

On Parties in the United States

De Tocqueville offers trenchant analysis of the political parties in the US at the dawn of the 19th Century.

At the time of his writing there was one large party that was dominant – the Republican Democratic party which ultimately came to be called the Democratic party. This party had managed to outmaneuver and outlive the Federalist Party and the Whigs.

In fact, today the so-called Democratic party is the oldest continuously existing party in American history. Founded in 1828, it is also the oldest political party in the world.

According to De Tocqueville, the longevity of this party isn’t a sign of its greatness, but, counter intuitively, a sign of its smallness.

To appreciate this insight, one has to understand De Tocqueville’s understanding of political parties.

He divided them into two categories – great and small. He wasn’t referring to size, instead he was talking about philosophy and impact.

Great parties are motivated by principles rather than by specific conflicts or disagreements. Great parties promote the interests of the whole nation rather than appealing to subset groups within.

In his view the then dead Federalist Party was in fact great. It was populated by some of the most prominent members of society and importantly of the Revolutionary War. Men like John Adams, Alexander Hamilton and John Jay.

These individuals and others like them had served in key roles during the War of Independence against Great Britain as well as within the first government set up by our Constitution.

In fact, many of these individuals were instrumental in the creation of the government in both drafting, and selling it to the American people.

Even after its collapse the Federalist party has had a lasting impact on the American system by laying the foundations for having a national economy, promoting the acceptance of a national judicial system and formulating principles of foreign policy.

In contrast, the Democratic party was viewed by De Tocqueville as a “small” party. Its issues agitate rather than support the broader society. Small parties he argues lack a political faith – that is remain constant on a principle regardless of circumstance. A small party is “stamped with a selfishness that shows openly in each of their acts.” De Tocqueville uses the National Bank as an example of the distinction between “great” and “Small” parties. He argues that the “enlightened classes” are generally in favor of the National Bank and the population at large are not.

Rather than focus on the benefits and costs of the National Bank – which was created by the Federalist party with that in mind – the Democrats used its unpopularity with the public as a wedge to have it eliminated.

This choice by a small party may help it succeed in the short run, but in the long run may not be great for society.

Remember, the National Bank was set up as a means of dealing with the war debt and to help fund the government’s other debts. It was empowered to issue currency as well.

Ironically, though the Democrats were successful in ending the charter of the National Bank in 1811, by 1816 a new national bank had to be created for many of the same reasons as before – this time the War of 1812.

However, even that Bank was ultimately killed by the Democrats. Nearly 100 years would pass before the Federal Reserve was created in 1912. Ironically another Democrat would sign the law creating the Federal Reserve (a national banking system) after the concept had been killed by a Democrat – Andrew Jackson in 1836.

If nothing else, the same political party could ultimately be on opposite sides of the national banking issue, demonstrating De Tocqueville’s point.

De Tocqueville claims that “great” parties try to unite the interests of the country while “small” ones carelessly divide them. In this case he uses the divide between the wealthy and the rest of the population as an example.

Whereas the Federalists supported laws that sought to protect the interests of all the citizens of the US as a “great” party would do, the Democrats sought to pit the broader American society against the wealthy.

In fact, this willingness to look at the broader impact of national policy led to the Federalist party not being nationally popular, according to De Tocqueville.

Only because the national government was so limited in its authority did this phenomenon not create great havoc in the first 100 years of America’s existence. But by the start of the 20th as the federal government expanded its authority, this wedge proved quite powerful in allowing for the creation of greater taxation and business regulation – the super regulatory state that exists today.

Whether political parties are “small” or “great” they still serve a useful purpose. De Tocqueville says that political parties are an “inherent evil” as they provide a constructive way for “factions” to compete with one another. In contrast, without parties there is the inherent risk that “rival nations” form within a given country and when those rivals are unable to resolve their differences then a civil war becomes likely.

While De Tocqueville made his observations nearly 3 decades before the US Civil War, his insights were quite profound. Many of the conflicts that the Federalists recognized – the importance of America being a thriving commercial republic vs an agrarian one, the broader goal of citizen equality (including blacks), and the benefits of limited government – were ultimately unable to be permanently resolved without military conflict.

Even though he had hoped that the competition among parties would allay conflict, his observations have largely held true.

Though today political parties may not be “great” their existence creates a way for Americans to work through their differences without physical force. Like them or not, for De Tocqueville that is a ringing endorsement for their existence.


Horace Cooper is a writer and legal commentator. He has appeared on CNN, MSNBC and Fox as well as in a variety of print publications. He is also a Research Fellow with the National Center for Public Policy Research, a Senior Fellow with the Heartland Institute and the Director of Law and Regulation at the Institute for Liberty.

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Essay 21: Why It Can Be Firmly Stated That In The United States It Is The People Who Govern

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Guest Essayist: Peter Roff

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Essay Read by Constituting America Founder, Actress Janine Turner


The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references page 165 of this edition of Democracy in America.

It is important to remember that De Tocqueville’s masterwork was published early in the 19th century. It is a collection of observations about an America vastly different from the one in which we now live.

While some of De Tocqueville’s observations are truisms, holding true then, now, and always, it is only by approaching others while acknowledging the emergence of the modern liberal welfare state that we can see how far the nation has moved from its “small d” democratic roots.

Chief among these enduring notions is the concept of America as a self-governing people. De Tocqueville’s words in Chapter 1, Part 2 of Volume 1 of Democracy in America still resonate. The people are sovereign, wielding the ultimate authority over the state. They elect representatives to voice their concerns at the federal, state, and local levels in the executive, legislative, and sometimes even in the judicial capacity, a living testament to the enduring relevance of De Tocqueville’s observations.

With a few caveats, the system studied by De Tocqueville has weathered well most of the storms of the last two and a half centuries. The franchise has been expanded to the point that every law-abiding American citizen is eligible to participate in the electoral process, serve on juries, and be part of national, regional, and local governance. This evolution is a testament to the dynamic nature of our governance system.

That is not to say, however, that the Constitution upon which it is based is, as many like to argue, “a living breathing document that must keep up with the times.” It is foundational to the American system, “saying what it means and meaning what it says” as more than one pundit has said. The system changed because the people arguably wanted those changes and voted for them.
Consider the popular movement that brought about the direct election of senators. It was proposed and adopted through a constitutional amendment as an anti-corruption measure without much consideration being given to how it would abolish the institutional tensions purposely established between the states and the federal government.

It would be wrong to fault De Tocqueville for failing to anticipate changes that allowed the government to grow in size, authority, and power. The system we have now, which began to take shape under Woodrow Wilson and grew exponentially under FDR’s New Deal, LBJ’s Great Society, and the administration of the current president, takes it upon itself to fulfill many of the valuable and volunteer functions cited by Democracy In America as essential to American character and different from what could be found at the time in Europe.
What the voters, through their representatives, put in, they should be able to remove, again through their representatives. That this has not happened, even with the best efforts of presidents like Calvin Coolidge, Ronald Reagan, and Donald Trump, is a testament to the growth in the power of political parties and special interests, as De Tocqueville discusses later in Part 2 of Volume 1.

Nonetheless, the people still govern. They still have the ultimate authority because they still have the franchise. The agents of the administrative state often attempt to overlook that fact, as do members of the judiciary who frequently substitute their own interpretation, not just of the laws passed by Congress and the regulations issued by the Executive Branch and the plethora of independent agencies that populate the nation’s capital, but of the U.S. Constitution itself.

All that can be undone by the people should they choose to be serious once again about their liberty. It will be a costly enterprise, difficult to achieve unless common ground can be found among the badly polarized factions of the American populace that the vision of the nation as recorded by De Tocqueville is superior to what we now have. Without unity on that point, factionalism will expand, partisanship will increase, and the divide of people living side by side will grow.

 

Peter Roff is a contributing editor at Newsweek and a Senior Fellow at several Washington-based public policy organizations.

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Essay 20: Tocqueville on the Distinctiveness of American Federalism – Volume 1 Part 1 Chapter 8

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Guest Essayist: Joseph M. Knippenberg


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Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 154 (starting at heading What Keeps The Federal System From Being Within Reach of All Peoples) – 161 of this edition of Democracy in America.

Tocqueville on the Distinctiveness of American Federalism (Democracy in America, Book I, ch. 8)

De Tocqueville’s discussion of “What Keeps the Federal System from Being within Reach of All Peoples” is a penetrating and challenging meditation on a certain kind of American exceptionalism. It is at once a tribute to the genius of the American Founders and to the enlightenment of the people for whom they legislated, and a profound appreciation of the serendipitous contribution of geography—America’s great distance from the European powers—to the success of their undertaking.

De Tocqueville identifies two vices inherent in every federal system—“the complication of the means it employs” and the “relative weakness” of the central (i.e., national, or as we say, federal) government. The first, he says, is “most visible,” while the second is “most fatal.”

The complexity has to do with the distribution of sovereignty between two levels of government, each operating directly on the people and each supreme within its limited sphere. This, De Tocqueville emphatically avers, is “conventional and artificial,” that is, not natural. What’s natural is for people to be governed by one source of power, to look to one capital as both the center of authority and the center of loyalty and affection. To undertake the careful discrimination between which government has authority to do what, to discern the limits of both state and federal government in their respective spheres, requires “a people long habituated to directing its affairs by itself, and in which political science has descended to the last ranks of society.”

Are we still capable of this? Our tendency to expect or seek national uniformity in legislation and policy, our impatience with the political and cultural diversity of the states, and our complaints about the “undemocratic” character of both the Senate and the Electoral College, certainly suggest that many of us have lost sight of the genius and subtlety of the original design.

De Tocqueville’s account of the weakness of the central government follows from what he believes about the naturalness of unitary government. Our national government is, he says, “a work of art,” the product of our constitutional design. For most of us, most of the time, it is a remote abstraction. On the other hand, “the sovereignty of the states in a way envelops each citizen… It takes charge of guaranteeing his property, his freedom, his life; at every moment it influences his well-being or his misery.” Indeed, he continues, this sovereignty depends on “all the things that render the instinct for one’s native country so powerful in the heart of man.”

To be sure, especially in times of international crisis, we need a strong central government, capable of defending us from adversaries. Our states by themselves are too small and too weak to meet the exigencies of such a moment. De Tocqueville describes an almost fateful choice between a weak government that leads to defeat and domination and a strong government that prevails only by becoming despotic.

It was America’s great fortune, he wrote in 1835, to have the Atlantic Ocean between it and the European powers, a natural defensive barrier that remedied the defects of a relatively weak central government and obviated the need for a strong one.

Now, we haven’t enjoyed this luxury since the end of World War II and the beginning of the Nuclear Age. Despite America’s status as a superpower, it remains vulnerable to other nuclear powers and to asymmetric threats (such as terrorism) from rogue states and non-governmental actors like al Qaeda and ISIS.

According to De Tocqueville’s prescient analysis, such a situation would seem to call for a strong central government, with its concurrent temptations to abuse and oppression, i.e., to despotism. We might then, in a sense, be forgiven for our own almost natural inclination to abandon federalism, paying attention to the federal government, rather than to the states.

But De Tocqueville’s argument suggests that we do so at our peril. As he argues elsewhere in Democracy in America (see, for example, Vol. I, ch. 5, on townships and on administrative decentralization), the scope of local and state politics matches both our imaginations and our concrete interests. The more distant and abstract those interests are (as in national policy matters), the less efficacious and engaged we tend to be, and the more abstract and ideological our positions tend to be. It would not surprise De Tocqueville at all for a largely national political scene to be dominated by hyper-ideological elites, which seems like an apt description of our current situation.

As I suggested at the outset, his remedy for this situation is to see to it that “political science [descends] to the last ranks of society,” so that we understand the vital role played by the states in our federal system. This is not just a matter of fidelity to a Constitution that has been in place for almost 240 years, but of informed allegiance to a political arrangement that engages our interest, protects our rights, and provides the basis for the kinds of political interactions where fellow citizens on opposite sides of an issue can work together to find a common ground.

Joseph M. Knippenberg is Professor of Politics at Oglethorpe University in Brookhaven, GA, where he has taught since 1985.

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Essay 19: Federalism and Democracy – Volume 1 Part 1 Chapter 8 Sub Chapters 22

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Guest Essayist: Will Morrisey

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Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 149 (starting at On the Advantages of the Federal system Generally and its special Utility for America) – 154 (stopping at heading What Keeps The Federal System From Being Within Reach of All Peoples) of this edition of Democracy in America.

In order to construct modern, centralized states on the model advocated by Machiavelli, European monarchs weakened the aristocratic class, which had ruled the feudal states, characterized by weak monarchs and powerful landlords. Weak aristocracies meant increasingly egalitarian civil societies beneath the modern states, whether their regimes were monarchic or republican. For De Tocqueville, ‘democracy’ is not itself a regime, and equality is neither a natural or legal right; democracy is a social condition, one that must be understood clearly if it does not descend into despotism. As the most thoroughly democratized society in the world in the 1830s (this, despite slavery), America fascinated the young French aristocrat, living in the aftermath of the debacle of the French republicanism in the 1790s and of French monarchy in the 1780s and again in the Napoleonic Wars.

Differing from feudal states in their degree of centralization, modern states also differed from ancient city-states in size, being far larger in both territory and population. In small states, De Tocqueville remarks, “the eye of society penetrates everywhere” (as the song advises, “don’t try that in a small town”), ambitions modest (no Napoleon has arisen from Slovenia). In small states, “internal well-being” is prized more than “the vain smoke of glory.” Manners and morals are “simple and peaceful,” inequality of wealth less pronounced. Political freedom is the “natural condition” of small states; in all times, antiquity (Athens) and modernity (Switzerland), “small nations have been cradles of political freedom.”

They lose that freedom on those rare occasions when they do muster the power to expand. “The history of the world does not furnish an example of a great nation that has long remained a republic,” whether the nation is ancient Rome or modern France. That is because “all the passions fatal to republics grow with the extent of territory, whereas the virtues that serve as their support do not increase in the same measure.” The gulf between rich and poor widens; great cities arise, with their “depravity of morals”; individuals become less patriotic, more selfish. This is worse for republican regimes than for monarchies, as republics depend upon popular virtue while monarchy “makes use of the people and does not depend on them.” In sum, “nothing is so contrary to the well-being and freedom of men as great empires.”

This notwithstanding, “great states” enjoy some substantial advantages. Their cities are “like vast intellectual centers,” where “ideas circulate more freely” than in the more censorious atmosphere of small communities. The people are safer from invasion, since the borders are remote from much of the population. Above all, great states wield greater force than small states, which is “one of the first conditions of happiness and even existence for nations.” De Tocqueville “[does] not know of a condition more deplorable than that of a people that cannot defend itself or be self-sufficient.”

What, then, shall republican legislators do? The American Founders took the recommendation of Montesquieu: federalism, which (as Publius argues in the tenth Federalist), permits Americans to live in an “extended” republic, one that can preserve the virtues needed for republicanism while enjoying the advantages of a large modern state. While the Congress “regulates the principal actions of social existence,” it leaves administrative details to the “provincial legislatures.” [1] In a democratic republic, the people are sovereign; in the United States, the people have divided their sovereignty between the federal government and the “provinces” or states. The federal government attends to the general welfare of the nation, but can only act through specific, enumerated powers set down in the Constitution. It can reach into the states and rule their citizens directly, but not in all, and indeed not in most, things.

This is what allows democracy or civil-social equality to ‘work’ in the United States. Because the federal government organizes American foreign policy, the states need not take on the expense or the effort to defend themselves and so can concentrate their energies on internal improvements, just as small political communities are inclined to do. This spirit of economic enterprise is enhanced by the Constitutional prohibition of tariffs among the states, which makes America into a vast free-trade zone. The spirit of economic enterprise itself redirects ambitions toward peaceful commerce and away from military glory, the passion of aristocrats. Americans thereby unite “the zeal of citizens” with their self-interest. With no arms to purchase and no wars to sustain, among state politicians “ambition for power makes way for love of well-being, a more vulgar but less dangerous passion” than the love of glory, the passion of aristocrats. “Vulgar” means not-noble, not aristocratic but democratic. Federalism thus reinforces the democratic republican regime, unlike in the South American republics of the time, where republicanism extended over large territories but under centralized governments. In the federal republic of the United States, “the public spirit of the Union itself is in a way only a summation of provincial patriotism.” Combining civic participation with the spirit of commercial enterprise, Americans unite “the zeal of citizens” with economic self-interest, each passion moderating the other.

Thanks to the wisdom of the Framers of the United States Constitution, “the Union is a great republic in extent; but one could in a way liken it to a small republic because the objects with which its government is occupied are few.” The federal government exercises substantial power but in a manner “not dangerous to freedom” because, unlike a fully centralized government, it does not “excite those immoderate desires for power and attention that are so fatal to great republics,” whether in ancient Rome, modern France, or modern Brazil. Such desires that do arise “break against the individual interests and passions of the states,” jealous defenders of their own share of the popular sovereignty.

In the civil society of American democracy within a federal system, “the Union is free and happy like a small nation, glorious and strong like a great one.”


Note:
De Tocqueville uses the term “provincial” rather than “state” because his European readers associate statehood with sovereignty, which American states have only in part.



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

 

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Essay 18: On The Federal Constitution – Volume 1 Part 1 Chapter 8 Sub Chapter 21

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Guest Essayist: Marc A. Clauson

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Essay Read by Constituting America Founder, Actress Janine Turner

 

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 146 (starting at heading “What Distinguishes the Constitution of the United States of America from all other Federal Constitutions – 149 (stopping at On the Advantages of the Federal system Generally and its special Utility for America) of this edition of Democracy in America.

The French writer De Tocqueville traveled in and wrote about the culture and politics of the new American Republic between 1835 and 1840. His work has become a classic of political thought and is considered one of the most insightful analyses of the early Republic and its institutions. Democracy in America is De Tocqueville’s most important work, particularly for our consideration of the Constitution.

The question in subchapter 21 is a crucial one, even in current discourse on the Constitution. De Tocqueville asks what makes the American Constitution different from other constitutions. In his day, the American version was certainly not the only constitution in effect (even less so today). In addition, several elements set the American compact apart from other similar documents, such as Poland and France. De Tocqueville focuses on one aspect—a very important one. As he explains it, the most unique innovation of the American Constitution is that, unlike the previous Articles of Confederation, whose provisions only allowed the national government to operate on state governments as a whole, the new compact’s provisions operated directly on citizens of each state. Before, the state governments could, and sometimes did, simply refuse to follow laws enacted by Congress based on its powers. As De Tocqueville writes, “In America, the Union has, not states, but plain citizens, for those governed.” The new Constitution bypasses the states in the exercise of its enumerated powers.

This innovation might at first seem somewhat insignificant. But if one remembers the previous regime, it was the very problem of the inability of the Congress to enforce its powers that threatened the survival of the new republic. This flaw (at least in large part) drove the Constitutional Convention to take drastic action in devising a wholly new social compact. Even assuming common interests existed among the entire population and across all or most states, the possibility that each time Congress attempted to enforce its agreed-upon powers could lead to defiance on the part of even one state, and could inevitably incentivize more states to ignore the national government. The entire confederation might disintegrate.

Vincent Ostrom has elaborated on the political theory underlying the American Founders’ innovation, beginning with the foundational idea that “people as individual persons are the fundamental units to be considered in organizing any political association…The individual person is the doer of acts. The way each individual as a person relates himself to others is the basis of all social organization.” The fundamental reason for the existence of government is to establish order among individuals. Collectivities as a whole cannot make such decisions apart from the individuals constituting them. Moreover, individuals as individuals are the recipients of political order, as a given law or policy does not fall on an abstract entity called a state, but on natural humans, notwithstanding the occasional legal attribution of some corporate entities as legal persons. Even a decision affecting a corporation in the first instance eventually affects the individuals related to that corporation, not the “thing” called a corporation—for example, employees and consumers.

In addition, De Tocqueville and the American Founders recognized that laws needed to be enforced to be effective. But under the previous Articles of Confederation, sanctions amounted only to advice or suggestions. To be effective, laws had to be enforceable as against individuals, the actual actors. Without the design of the Founders, the very idea of a government and its goal would be thwarted, to the detriment of the citizens. Once again, one can see the uniqueness of the American Constitution. It would not be an overstatement to assert that the American constitutional system would not work, in fact, might collapse, without this innovation added by the Founders.

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

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Essay 17: On The Federal Constitution – Volume 1 Part 1 Chapter 8 Sub Chapter 20

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Guest Essayist: Adam Carrington

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Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 143 – 146 (stop at heading What Distinguishes the Constitution of the United States of America from all other Federal Constitutions) of this edition of Democracy in America.

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In this section of Democracy in America, De Tocqueville claims that the national constitution is superior to those found in the states. In making this case, he points to a broader purpose of his project.

As he stated early in the work, De Tocqueville thinks that a general movement toward democratic forms of government are inevitable, part of a Providential movement in history. Yet he believes humans possess the ability to make their democracies better or worse. Here, he notes two problems democracies tend to face. Both he claims the national constitution combats better than its state counterparts.

First, De Tocqueville writes that one danger for democracies is the possibility of “[t]he complete enslavement of the legislative power to the will of the electoral body.” One might think this point is a good thing, a feature, not a bug. Should not the lawmakers in a popular government follow the will of the people, who by definition are the sovereign in such regimes?

De Tocqueville does not deny the ultimate sovereignty of the people. But he wants the people to exercise their rule in the most thoughtful, moderate, and just way possible. The people do so best through representatives who themselves possess some ability to lead and thus to mold popular opinion rather than merely follow it. This balance, wherein the representatives truly represent but do so with some room to persuade, depends in large part on the terms of office lawmakers hold.

In the states, the lawmakers tend to hold one to two year terms, De Tocqueville notes. This made the representatives constantly dependent on the immediate, short-term views of the people. In that mode, the people could be prejudiced, passionate, and irrational, as all persons can be at certain points in life. The national constitution established longer terms—two years for the House and six for the Senate—with the idea that, “lengthened the time of the electoral mandate to allow to the deputy a greater use of his free will.” With some space between elections, lawmakers had some time to persuade voters, to appeal to their more settled, rational, and longer-term interests. That space would increase the chances of justice being served, not the mighty feeding on the weak.

Second, the French thinker states that democracies tend to result in “[t]he concentration, in the legislative power, of all the other powers of government.” The Americans had learned from another Frenchman, Montesquieu, that political power was by nature legislative, executive, or judicial and that free governments divided these tasks among distinct institutions. To combine them descended into tyranny, even if it was the people themselves combining the power.

But state constitutions had proven woefully inadequate in realizing the truth about separation of powers. Though having such a distinction on paper, the legislative power tended to dominate in practice; executives and judges became the puppets of the lawmakers. The national constitution reacted to these problems with a better structure.

The president as national executive would have a four year term, thus giving him the independence that came with length of office. Moreover, the legislature could not coerce him to act in certain ways by diminishing or eliminating his salary. Finally, De Tocqueville points to the veto, whereby the president could stop legislative attempts to minimize or eliminate his inherent constitutional powers.

Other guards existed for the judiciary. They, too, would have salary protections. But instead of a four-year term, the judges, once appointed, held their positions for life absent willing resignation or the difficult process of impeachment and removal. These judges need not succumb to legislative control but instead could exercise their own powers in ways that furthered their purpose and checked overreaches from other branches.

Taken together, De Tocqueville says the clear result was that, “the affairs of the Union are infinitely better conducted than the particular affairs of any state.” By this claim he meant the national government operated in a more moderate, wise, intelligent, stable, and firm manner. Doing so was about much more than simple efficiency. De Tocqueville saw in the national constitution mechanisms that preserved the people’s liberty against its many foes. The national constitution channeled decision-making the exercise of power in ways more likely to result in justice.

We would be wise to listen to De Tocqueville’s wise observations. It not only will make us better students of our own country. It might make us better citizens of it here and now.

Adam M. Carrington is Associate Professor of Political Science at Ashland University, teaching courses on U.S. political institutions and the intersection of faith and political thought. Previously, he taught in The Van Andel Graduate School of Statesmanship at Hillsdale College, focusing on the U.S. Constitution, Constitutional Law, The American Presidency, and Politics & Literature. His writing has appeared in such popular forums as The Wall Street Journal, The Hill, National Review, and Washington Examiner. His book on the jurisprudence of Justice Stephen Field was published in 2017 by Lexington. Carrington received his B.A. from Ashland University and his M.A. and Ph.D. from Baylor University. He lives in Hillsdale with his wife and their two daughters.

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Essay 16: On The Federal Constitution – Volume 1 Part 1 Chapter 8 Sub Chapters 15-19

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Guest Essayist: Eric Wise

Our Commissioners | Office of the Texas Governor | Greg Abbott

Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 130 – 143 of this edition of Democracy in America.

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On The Federal Constitution – Volume 1 Part 1 Chapter 8 Sub Chapters 15-19

“In the hands of seven federal judges rest ceaselessly the peace, the prosperity, the very existence of the Union. Without them, the Constitution is a dead letter…”

– Alexis De Tocqueville

 

The great observer of the American regime is Alexis De Tocqueville. An observer is most often distinct from a participant. De Tocqueville sees America from the outside.

But to say he sees America from the outside is insufficient. We are invited to ask from what vantage point of the outside does De Tocqueville observe.

It would be easy to conclude he observes from another great young democracy, France. After all, his subject, democracy in America, suggests that democracy is going on somewhere else.

Democracy in America was first published in 1835. This is the period of the July Monarchy in France, which began with the overthrow of one Bourbon monarch, Charles X, to replace him with another Bourbon monarch, Louis Phillipe. De Tocqueville could have accurately titled his book Democracy Today, given that democracy in America was at that time the only democracy game in town.

Why digress so? Because in reading De Tocqueville it helps to understand that, as astute an observer as he is, he is in fact an alien to the system in America. De Tocqueville truly knows only monarchy.

In this spirit he writes, “a federal government ought more than any other to desire to obtain the support of justice, because in its nature it is weaker, and one can more easily organize resistance against it.” Is this observation made because for an observer looking down from a monarchical perch, that is how the American system appears?

“In America, they have put this theory into practice. The Supreme Court of the United States is the sole, unique tribunal of the nation,” writes De Tocqueville. “Sole” reminds us of the root “mono”, which is one half the root of “monarchy”, which means rule of one. This idea foreshadows a potential corruption of the institutions of the United States, which we will get to later.

Let’s look at De Tocqueville’s perspective and then at the possible corruption.

De Tocqueville appreciates how the United States’ federal government and the United States’ state governments are both ground up institutions. That is, each part of the federal system represents delegations of sovereign authority from people to the government. The people of each state lend certain aspects of their sovereignty to the state governments, and the people of the United States lend their sovereignty collectively to the United States.

As De Tocqueville wrote, “The first question which awaited the Americans … was so to divide the authority of the different States…, whilst the entire nation, represented by the Union, should continue to form a compact body, and to provide for the general exigencies of the people.”

This sense of the sovereignty of individuals, which is the basis of consent in America, is bred in the bone. Perhaps the first instance of this practice occurs in Connecticut through the adoption of the Fundamental Orders of Connecticut without any reference to royal authority. As Thomas Hooker, a leading Puritan minister in New England, had said in 1638, well before Hobbes and Locke wrote any jot or tittle on the subject, “The foundation of authority is laid firstly in the free consent of the people.”

That ethos as reflected in the United States Constitution leads to dual sovereignties that are derivative of the sovereignty and consent of the people. With that dual sovereignty comes dual judicial systems, one state and one federal. And while De Tocqueville makes no mention of Puritans such as Hooker, he appears to understand this.

Thus De Tocqueville observes with interest that “It may easily be proved that the Union could not adapt the judicial power of the States….to enforce the laws of the Union by means of the tribunals of the States would be to allow not only foreign but partial judges to preside over the nation.”

But I venture an American of De Tocqueville’s time would have seen this procedurally requirement slightly differently, as they would not have admitted the possibility of a sole power precisely because there cannot be two sole powers, of course. If the sole power of the American regime is the consent of the people, then there is no room for judicial supremacy. De Tocqueville, one dares say, may have mistaken, ever so slightly, or as a modern man might say, subconsciously, the power of the Supreme Court with the power of a king.

This brings us to corruption. At the time De Tocqueville was writing the United States was experiencing a drought of new amendments to the Constitution, new affirmative and formal acts of consent, that began in 1804 and would not end until after the Civil War with the 13th Amendment. To fill the gap, the Supreme Court, after De Tocqueville, handed down the Dred Scott decision to settle once and for all a regime question that could only be resolved through the consent process. Justice Taney, the author of Dred Scott, assured a credulous President James Buchanan that the regime question of popular sovereignty set forth in his Dred Scott opinion, would put to rest the political instability over slavery that troubled the regime. Taney could scarcely have been more wrong.

Today we suffer from a similar drought of amendments, the last fully consummated and unified process for the 26th Amendment having been completed in 1971 (the 27th Amendment having been a drawn-out event that began as the Congressional Compensation Act of 1789). De Tocqueville might see the change as an example of the power of the Supreme Court analogous to a monarch. But from the perspective of an American participant it is hard to unsee it as the ebb of the true sole power in America, the people, which ought to be restored through a process like a convention of states, where the people of the United States might take on regime questions after the manner of the Founders, and in the manner the Founders intended, as reflected in Article V.

 

   J. Eric Wise is a partner in the law firm of Alston & Bird.

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Essay 15: On The Federal Constitution – Volume 1 Part 1 Chapter 8 Sub Chapters 11-14

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Guest Essayist: Tara Ross

Our Commissioners | Office of the Texas Governor | Greg Abbott

Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 120 (starting at the heading “On The Election of the President”) through 130 (stopping at the heading “On The Federal Courts”) of this edition of Democracy in America.

American presidential elections have grown increasingly contentious in recent years—to say the least! Too many mistakenly blame the Electoral College, but Alexis de Tocqueville’s classic work, Democracy in America, offers a different perspective.

Indeed, his observations about American society in the early 1800s also included warnings that Americans should have heeded—but didn’t. No wonder presidential elections have become so acrimonious.

De Tocqueville, of course, lived at a time when countries around the world were (at least trying to) shake off monarchies, replacing them with elected leaders. Perhaps it’s unsurprising, then, that Democracy in America alludes to the change. A monarchy, with its relatively infrequent change in leadership, at least provides stability. Can a nation elect new leaders once every few years without too much disruption?

In general, De Tocqueville believes that elective systems undermine a nation’s stability, but he notes that this danger has been mitigated in America because presidential power is limited. To the contrary, “the preponderant power resides in the national representation as a whole,” De Tocqueville observes.

The modern American presidency, of course, looks nothing like the one that De Tocqueville studied in the 1830s.

A powerful President, De Tocqueville writes, makes for dangerous election seasons. One human being clawing for power is surrounded by others, also clawing for a piece of that power. “It is clear that the more prerogatives the executive power has,” De Tocqueville explains, “the greater the lure is; the more the ambition of the pretenders is excited, the more also it finds support in a crowd of [those with] secondary ambitions who hope to share in power after their candidate has triumphed.”

America during De Tocqueville’s lifetime didn’t have that problem. To the contrary, he marveled, “[n]o one has yet been encountered who cares to risk his honor and life to become president of the United States, because the president has only a temporary, limited, and dependent power.” The same applies to those who might otherwise want to help a candidate achieve the presidency. “The reason for this is simple,” De Tocqueville concludes, “having come to the head of the government, he can distribute to his friends neither much power nor much wealth nor much glory, and his influence in the state is too feeble for the factions to see their success or their ruin in his elevation to power.”

A too-powerful President can create other dangers, too, because the workings and direction of government become too dependent on a single individual. “The vaster the place that executive power occupies in the direction of affairs, the greater and more necessary its habitual action is,” De Tocqueville concludes, “and the more dangerous such a state of things is. Among a people that has contracted the habit of being governed by the executive power and, even more so, of being administered by it, election could not fail to produce a profound disturbance.”

An election is inherently “a period of national crisis,” De Tocqueville thinks, because everyone becomes overly focused on the approaching election. The interests of the country fall by the wayside. Nevertheless, things are even worse when a President runs for re-election.

He recognizes the dilemma facing the delegates to the Constitutional Convention: If a President is doing a good job, then Americans should have the option to re-elect him. On the other hand, De Tocqueville wonders if the dangers don’t outweigh the benefits.

“Intrigue and corruption are vices natural to elective governments,” he concludes. “But when the head of state can be reelected, the vices spread indefinitely . . . . [the incumbent] borrows the force of the government for his own use. . . . the care of the government becomes a secondary interest to him; his principal interest is his election.”

In an interesting twist, De Tocqueville remains impressed by the “mode of election” for American Presidents, recognizing that the Electoral College “express[es] the real will of the people.” He notes the difficulty in getting a majority to support any candidate “at the first stroke,” especially given the size and nature of the country. Electing a special body (the Electoral College) to make this decision struck De Tocqueville as an efficient process for reaching agreement on a candidate. It would also better reflect the will of the people than legislative selection.

America’s presidential election system, he concludes, “[is] a happy combination that reconciles the respect that is owed to the will of the people with the rapidity of execution and the guarantees of order that the interest of the state requires.”

In short, Democracy in America focuses on two factors that have historically made American presidential elections work: The limited nature of executive power and the structure of the Electoral College. The first of these has been severely undermined, and the second is under attack.

De Tocqueville would surely be unsurprised to learn that elections have turned ugly in recent decades.


Tara Ross is a retired lawyer and the author of several books about the Electoral College, including Why We Need the Electoral College (Regnery Gateway).

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Essay 14: On the Federal Constitution – Volume 1 Part 1 Chapter 8 Sub Chapters 7-10 of Democracy in America by Alexis De Tocqueville

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Guest Essayist: Dr. Robert Brescia


Our Commissioners | Office of the Texas Governor | Greg Abbott

Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 113 (starting at the heading “On the Executive Power”) through 120 (stopping at the heading “On the Election of the President”) of this edition of Democracy in America.

 

Executive Power; a Summary of Alexis de Tocqueville’s Comparison of the U.S. Presidency and the French Monarchy

 

“The executive power in France extends to everything, like the sovereignty – the king is one of the authors of the law. The president is only the executor of the law.”

“The president is hindered in the sphere of the executive power – the king is free in it.”

“The president possesses great prerogatives that he has no occasion to make use of – in what he does have occasion to execute, he is weak.”


Alexis Charles Henri Clérel, Comte de Tocqueville

It’s helpful to set the stage with the reminder that De Tocqueville was one the 19th century “big thinkers” – A French noble who analyzed political and sociological movements. He had an avid interest in the young United States, particularly its form of government. De Tocqueville was a classical liberal who espoused the governmental form of parliamentary government, wary, though, of the tyranny of the majority when in power. It is difficult, however, to assign a political ideology to De Tocqueville because he straddles the ideals of much of the political spectrum. The time of his visit to America was during the French monarchy (Louis XVIII and Charles X); “between the republics” period – between the First Republic (1792–1804) and Second Republic (1848–1852).

De Tocqueville’s thoughts about the American presidency and the French monarchy

Following are the main points of difference between the U.S. Presidency and the French monarchy that De Tocqueville points out in Democracy in America, starting with what he refers to as the most important difference:

1. Sovereignty in the United States is divided between the Union and the states, whereas among us (in France), it is one and compact. In the United States, the executive power is limited and exceptional, like the very sovereignty in whose name it acts; in France it extends to everything, just like the sovereignty.

2. The king in France really constitutes a part of the sovereign, since laws do not exist if he refuses to sanction them; he is, in addition, the executor of the laws. 3. The king of France participates in the formation of the legislature by naming the member of one house and putting an end to the duration of the mandate of the other at his will. The president of the United States does not concur at all in the composition of the legislative body and cannot dissolve it.

4. The king is represented within the houses by agents who set forth his views, support his opinions, and make his will prevail. The president has no entry into Congress; it is only in an indirect manner that he can influence the legislative process.

5. The power of the king of France has the advantage of longevity over that of the president – this makes the king feared because he wields power for a much longer time. The president is a magistrate who is elected every four years with one exception so far (Grover Cleveland, 1885-89 and 1893-97), while the king of France is a hereditary head – divine right to assume absolute power says it all. Whereas the U.S. president is indirectly elected by the people, the French king is appointed – usually succeeded by an immediate family member.
6. The king of France is the absolute master in the sphere of executive power. The president of the United States is responsible for his actions. French law says that the person of the king is inviolable. Like the Roman Catholic Pope, he is infallible when speaking “ex cathedra” (from the chair). The difference is that while the Pope has only spoken once ex cathedra, the French kings put out many edicts during their reigns. There can be no opposition to his rule.

7. De Tocqueville points out that in France, there must be an accord between the king and the chambers; that anything else invariably leads to an irresolvable struggle. That is not the case in the U.S. but if the U.S. president is of a different political party than the majority in one or two houses of Congress, there certainly is a struggle to get things done.

The framers of our Constitution had placed the utmost importance on the legislative branch and envisioned the executive branch as an action-oriented, puttin-laws-into-force branch of government. They realized that it is one thing to write a law and another to apply it and see that it is obeyed. Basically, the U.S. president is supposed to be a “doer” – an executor. Article II of the Constitution says that the president “must take care that the laws be faithfully executed” and that he must take an oath or affirmation to faithfully execute the Office of President. In our times, there has evolved a notion of the “imperial presidency” which deals with the enlargement of the powers of the office but that flies in the face of the Constitution and is reinforced by the mystique factor of the presidency, especially in recent years. De Tocqueville recognizes that there are “accidental causes that can increase the influence of the executive power – generally that is war because the president acts as the chief of the armed forces.

Summary

Alexis de Tocqueville’s service to our heightened understanding of the U.S. presidency is quite commendable. For example:
“Just now Washington contains the most important men of the whole Union. We no longer seek instructions from them on subjects of which we are ignorant; instead, we reexamine, in conversation with them, everything which we already know, more or less. We settle the doubtful points…”
His service is very valuable because it promotes a prominent level of questioning and “doubt settling” we should be undertaking currently. The nature of our political experiment can be considered as an early form of a complex adaptive system – constantly changing with the identity and the impact of independent variables weighing heavily upon it. That is something that historians do not focus on and something that political scientists should. The U.S. presidency has built up capabilities never imagined in 1832 because our society has become infinitely more complex to manage. Still, many Americans repel the notion of a monarchy as much as they did when King George III was the King of England.

 

Dr. Robert Brescia is a National Board Certified Teacher (NBCT), serving as Social Studies Department Chair at Permian High School in Odessa, TX. The Governor of Texas re-appointed him to the State Board for Educator Certification (SBEC) for a six-year term. Bob has a doctoral degree with distinction in Executive Leadership from The George Washington University. He also teaches ethics to university students and leadership to organizations.

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Essay 13: On The Federal Constitution – Volume 1 Part 1 Chapter 8 Sub Chapters 5-6

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Guest Essayist: Christopher C. Burkett


Our Commissioners | Office of the Texas Governor | Greg Abbott

Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 110 (starting at the “Legislative Powers heading”) – 113 (stopping at the “On the Executive Power Heading”) of this edition of Democracy in America.

Alexis De Tocqueville: On The Federal Constitution

“In this state of things, what happened was what almost always happens when interests are opposed to reasonings: they bent the rules of logic.” (Alexis De Tocqueville, Democracy in America).

As De Tocqueville notes, the Constitution of the United States is federal in nature. This makes it quite unusual – in fact, unique – among all historical constitutions in Europe. This is so, in part, because Americans have discovered a new understanding of what “federal” means, which in turn requires De Tocqueville to carefully point out to his European readers some subtle characteristics of the Constitution.

De Tocqueville begins to explain the federal nature of the Constitution of the United States by describing what he calls “Legislative Powers.” By this, De Tocqueville means to show how the bicameral Congress is composed of two legislative bodies – a House of Representatives and a Senate – and, though the concurrence of both is needed to pass laws, each has some unique characteristics, responsibilities, and powers. This difference between the two houses of Congress arises from the compound nature of the American political union: it is intended, by the Federal Constitution, to be a union of the whole American people under a national government with national laws, while each of the member states simultaneously retains its own government, laws, and powers.

This compound or “federal” nature of the American Union and Constitution is an important factor in shaping American democracy, but was established legally in the new Constitution as a way to reconcile the natural tension that would exist between a national government and a state government. De Tocqueville reveals how this new kind of federalism came into being, beginning with the first attempts at establishing a government for the Union during the American Revolution. In the years when the Articles of Confederation were legally in effect (1781-1787), disagreements rose to the surface in the Confederation Congress over whether the Union of the American states comprised a real nation or a mere treaty-based agreement between sovereign and independent nation-states. As De Tocqueville writes:

“[T]wo opposed interests were presented to each other. Those two interests had given birth to two opinions. Some wanted to make the Union a league of independent states, a kind of congress, where the representatives of distinct peoples would come to discuss certain points of common interest. Others wanted to unite all the inhabitants of the former colonies into one and the same people.”

These were the prevailing opinions when the Confederation Congress authorized a Federal Convention to meet in Philadelphia in 1787 to discuss amendments to the Articles of Confederation. Delegates such as David Brearly and Robert Paterson of New Jersey, for example, strongly defended the former point of view that, in order to protect the various interests of the states, the Union should be more like a treaty-based league with a very limited general congress. Others, such as James Madison of Virginia, argued for the creation of a national union under a strengthened national government with real legislative powers. From the beginning of the debates at the Convention, when delegates agreed to create a bicameral legislature it became clear that this question would be resolved primarily through the composition of the two bodies of Congress (the House of Representatives and the Senate). Brearly and Paterson, among others, insisted that each state be equally represented in both houses, and that members of each house be selected by the state legislatures, ensuring that the interests of the states would be sufficiently expressed, supported, and protected in Congress. Madison and his supporters, on the other hand, insisted on creating a national government in which each state would be represented proportionally (based, for example, on population) in both houses, and in which state legislatures would select members in either house of Congress.

Ultimately delegates agreed to compromise on these questions (as proposed in part by Roger Sherman and Oliver Ellsworth of Connecticut): the states would be proportionally represented in the House of Representatives by members elected directly by the people; and the states would be represented equally in the Senate by members chosen by the state legislatures. By this compromise the framers established a Constitution that was “partly national, partly federal.” De Tocqueville writes:

“In this state of things, what happened was what almost always happens when interests are opposed to reasonings: they bent the rules of logic. The legislators adopted a middle term that reconciled by force two theoretically irreconcilable systems. The principle of the independence of the states triumphed in the formation of the Senate; the dogma of national sovereignty, in the composition of the House of Representatives.”

With careful insight, De Tocqueville reveals the uniquely complex nature of the Constitution of the United States in the composition of Congress, as an important factor of American democracy.

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

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Essay 12: On the Federal Constitution– Volume 1 Part 1 Chapter 8 Sub Chapters 1-4 of Democracy in America by Alexis De Tocqueville

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Guest Essayist: Robert Lowry Clinton


Our Commissioners | Office of the Texas Governor | Greg Abbott

Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 105 – 110 (stopping at the heading “Legislative Powers”) of this edition of Democracy in America.

“…what is new in the history of societies is to see a great people, warned by its legislators that the wheels of government are stopping, turn its regard upon itself without haste and without fear, sound the depth of the ill, contain itself for two entire years in order to discover the remedy at leisure, and when the remedy is pointed out, submit voluntarily to it without its costing humanity one tear or drop of blood.” (Alexis De Tocqueville, Democracy in America).

Alexis De Tocqueville: On the Federal Constitution

After a brilliant introduction expounding the rise of democratic inclinations in Europe during the centuries leading up to the colonization of America, followed by seven chapters exploring socio-economic, geographical, cultural and political conditions on this side of the Atlantic, De Tocqueville turns to a peremptory discussion of the Federal Constitution in chapter 8. Beginning with the history of the Constitution’s emergence out of the earlier Articles of Confederation, De Tocqueville emphasizes the colonists’ strong connections to England before the War of Independence, noting the sharing of religion, language, mores and laws among the Americans and the English. This sharing, however, was not enough to prevent the War of Independence.

During the War and its immediate aftermath, the Americans were governed by the Articles (written in 1778 and adopted in 1781), which repudiated a complete union in favor of a confederation of individual states. De Tocqueville explains that once the War commenced, the principle of union prevailed anyway in the face of a common enemy. However, when the public danger subsided, states resumed their original and entire sovereignty.

The states disunited proved disastrous, exposing the states to dangers both foreign and domestic. Before long, Congress recognized its’ impotence and called for a convention to address the problems and revise the Articles. The “revision” thus produced by the Convention of 1787 turned out to be a complete replacement of the Articles, resulting in our present written Constitution.

De Tocqueville extols the greatness of the American founders in heeding the warning of the dangers of disunity, acting with resolve yet patience in devising a remedy, and accepting the remedy—though controversial—without bloodshed:

“…. what is new in the history of societies is to see a great people, warned by its legislators that the wheels of government are stopping, turn its regard upon itself without haste and without fear, sound the depth of the ill, contain itself for two entire years in order to discover the remedy at leisure, and when the remedy is pointed out, submit voluntarily to it without its costing humanity one tear or drop of blood.”

After a brief comparison of the American and French Revolutions, attending to the most obvious differences between the two wars, De Tocqueville proceeds to a summary of the Federal Constitution, stressing the crucial distinction between the character of the powers granted to the nation and those left to the states. Since the goal of the nation is to respond to “a few great general needs,” its powers are “simple and easy enough to define”. Since the goals of the state are “multiple and complicated,” thus retaining “the common rule,” their prerogatives cannot be so easily defined. De Tocqueville perceives the inevitability of conflict between state and national governments, and suggests that the Supreme Court was created, in part, to avoid having such disputes left to individual state courts.

Relying heavily on The Federalist, De Tocqueville examines more closely some of the intricacies presented by this constitutional system. For example, some national powers are made exclusive, others not. Where national power is not exclusive, states can govern freely, subject to the intervention of courts if they abuse their freedom and “compromise the security of the entire Union.” Thus the Federal Constitution establishes both a republic and a confederation, both federal and confederal.

De Tocqueville closes his section on federal prerogatives by giving some examples suggesting that on some points (e.g., having a single national court to interpret the law and a single legislature to impose taxes on everyone and commercial regulations on the states), the American Union is more centralized in some ways than some European monarchies! Though this seems a bit of a stretch, maybe not. Perhaps De Tocqueville was echoing the earlier fears of the Anti-federalist “Brutus” when he suggests in the one-sentence section that follows (entitled “Federal Powers”) that it might be difficult to confine the national government to the exercise of its delegated powers?

In sum, De Tocqueville’s preliminary remarks on the Constitution are generally sound and most helpful in drawing attention to the most important feature (and problem) of the constitutional order it established: the dual sovereignty embodied in the federal system. And in the last analysis, his cautionary suggestion about the difficulty of preventing future concentration of power in the national government would prove fully justified.

Robert Lowry Clinton is Professor Emeritus at Southern Illinois University Carbondale. He is the author of Marbury v. Madison and Judicial Review, God and Man in the Law: The Foundations of Anglo-American Constitutionalism, and numerous articles in academic and popular publications.

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Essay 11: On Political Judgment in the United States Volume 1 Part 1 Chapter 7 of Democracy in America by Alexis De Tocqueville

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Guest Essayist: Andrea Criswell


Our Commissioners | Office of the Texas Governor | Greg Abbott

Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 100 – 104 of this edition of Democracy in America.

Alexis De Tocqueville: On Political Judgment in the United States

“[Political jurisdiction is] to withdraw power from someone who makes a bad use of it and to prevent this same citizen from being vested with it in the future.” (Alexis De Tocqueville, Democracy in America).

“Take one for the team”! Maybe Washington, maybe Hamilton, patented this unheard of paradigm shift, but the idea set in motion a constitutional republic that would require more from the elected than any other time in history. Adding a unique feature, in regard to public officials, the Founders took it a step further, one that would keep democracy on the up and up. Alexis De Tocqueville recognized this feature, he caught the nuance in regard to political jurisdiction saying it is, “to withdraw power from someone who makes a bad use of it and to prevent this same citizen from being vested with it in the future.” It allowed public servants to be judged among their elected peers, without criminalizing them. In America’s version of political jurisdiction it could not be used as a partisan weapon, it required deep trust of the elected, and it tethered leaders to a higher accountability. These three distinctions will be considered here.

Be slow to impeach. The temptation to override is currently strong in the political atmosphere. Take what you want politically by force. The Founders feared this, and set in motion a unique take on political jurisdiction which would require a respect for the law no matter who was elected. If the people, by free and fair elections, selected a person to govern, then that person should be protected from impeachment being used as a partisan weapon. It is this very reason that only the public official called forward by the House of Representatives can be labeled an offender. Protecting against false accusations, the Senate judges the offense. What surprised De Tocqueville was that this only included removal from office, not justice through the penal code. The House could call for impeachment, and the Senate could enact impeachment, but neither could take away the personal liberties of the offender. That was out of their jurisdiction. Radically different from the structures in both England and France, the Founder’s plan limited impeachment for the purpose of protecting the choice of the governed.

Trust the law. In times of uncertainty, the governed must trust the checks and balances of the law and not take matters into their own hands. Obedience to authority is a wonderful fail safe when the elected is your chosen candidate, but when your candidate is not chosen, it requires great maturity to work under the leadership of someone you do not agree with. Order is a protective measure against chaos. It blesses all who sit in its shade. The shade as seen in political jurisdiction in the United States is that the leaders are tethered to something greater than themselves, the law, which supersedes agenda. Usurpation is only acceptable when the elected dishonor the law. However, in modern America trust in elected leadership has been broken and most of the governed do not understand the law. This is a concerning combo that the Founders feared.

To hold office. A little phrase with great power. When seen through a lens of selfish ambition this power brings an elected person self-promotion. Seen through the lens of service, it garners benefit for the governed. Political jurisdiction is intended to protect the elected while establishing office void of selfish ambition. What a difference a lens can make. This is where free and fair elections apart from gerrymandering are so important. The balance between recognizing the possibility of human failure and the tension between freedom of choice and the law is real. The elected person is imperfect, but the law holds their imperfection in check. Accordingly, political jurisdiction is, in De Tocqueville’s words, “despite its mildness and perhaps because of its mildness, a very powerful arm in the hands of the majority.”

This is not “your father’s” democracy. Liberty requires more. The republic is a standard of law for all people, to be honored and upheld equally by both the elected and the governed. It was understood that the elected would place their own natural tendencies aside out of respect for the law, and that the governed would place their natural tendencies aside out of respect for the elected. This mutual agreement of giving and receiving would allow them to accomplish something the world had never seen. De Tocqueville reminds us today that America’s system of political jurisdiction sets American democracy apart. If it breaks down, she will become just like other democracies. Without this unique balance, America will not embody liberty in its truest form.

Andrea Criswell is a wife, mother, and homeschool teacher in the northwest Houston area. Graduating from both Texas Tech University and Asbury Theological Seminary, she teaches Christian Worldview classes. Her passion is helping high school students become responsible young adults who critically think and learn how to solve problems.

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Essay 10: On Judicial Power in the United States and Its Action on Political Society – Volume 1 Part 1 Chapter 6 of Democracy in America by Alexis De Tocqueville

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Guest Essayist: Kevin Gutzman

Our Commissioners | Office of the Texas Governor | Greg Abbott

Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 93 (starting at chapter 6) through 99 of this edition of Democracy in America.

Alexis De Tocqueville entitles Volume One, Part One, Chapter 6 of Democracy in America “On Judicial Power in the United States and Its Action on Political Society.” He attempts to describe American judicial institutions as if they were all of one model, along the way comparing them to the French courts more familiar to him and to his intended readers. Particularly notable to De Tocqueville as a foreign observer was the political role of American courts that we Americans have come to take for granted. “ The judicial power[‘s] … political power is so great,” he explains, “that it appeared to me that to speak of it in passing would diminish it in the eyes of readers.”

Federal, republican, and elective governments are not peculiar to America, this Frenchman notes, but the American judiciary is unique. Its weight is felt in every political discussion. In regard to particular cases, it exercises its power as other countries’ judiciaries do — “as an arbiter” between parties, “on particular cases and not on general principles” (that is, not on an advisory or legislative basis), and “only when it is appealed to” (that is, when a case is properly brought before it).

Yet, American judges, De Tocqueville insists, have political power of a remarkable kind: “Americans have recognized in judges the right to found their rulings on the Constitution rather than on the laws.” What he has in mind is that American judges exercise the power of judicial review, which he classifies as political, not legal. To an American, this distinction is jarring. We have all been indoctrinated in the idea, captured in Article VI of the United States Constitution and forcefully said to have been the bedrock of judicial review by Chief Justice John Marshall in Marbury v. Madison, that judicial review is precisely a legal function, that what is happening when a judge says a statute is to be inoperative (“struck down”) on the basis of unconstitutionality is that inferior law is being made to yield to superior law. As Marshall put it, “It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each. If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.”
It was by political acts that the sovereign states, following the Article VII ratification process, put the U.S. Constitution into effect, yes, but determining whether a law is constitutional in a case brought before it by one of the parties is for an American court a legal task, not a political one. De Tocqueville essentially concedes this point without making it when he notes that in America the people can, when they so desire, change a constitution (state or federal).

After comparing the relationships between law and constitution in the American system to the relationships between law and constitution in France and in Britain, De Tocqueville asserts that there is little to fear from judicial decisions holding laws unconstitutional, as they will only affect the particular cases the judges are deciding. Whether a statute will be repealed because unconstitutional is a question that will only be decided after several related cases have been adjudicated. Here our author is simply mistaken: decisions holding statutes unconstitutional have commonly had immediate and general effect since American courts first exercised the power of judicial review.

De Tocqueville next asserts that judges exercise the power of judicial review only despite themselves. They have no impulse to do so, he says. We are familiar with numerous instances in which Americans certainly were, or at least seem to have been, anxious to exercise the power of judicial review. At least one of them, the Supreme Court case of McCulloch v. Maryland (1819), ought to have been known to De Tocqueville. There had already been numerous cases of judicial review in federal courts by the 1830s, when De Tocqueville wrote his book, and they have come to be quite numerous now.

De Tocqueville closes this chapter with consideration of Article 75 of the French Constitution of year VIII (1799), which made Napoléon Bonaparte first consul. Under that constitution, he says, a government official could only be tried after the Council of State had decided he could. American courts have no need of such permission, he notes.

Kevin R. C. Gutzman, J.D., Ph.D. is Professor and former Chairman in the Department of History, Philosophy & World Perspectives at Western Connecticut State University. He is the author of six books in the history of the American Revolution and Early Republic, one of which was a New York Times bestseller, two of which were book club main selections, and one of which was named one of the ten outstanding conservative books of 2007. His latest is The Jeffersonians: The Visionary Presidencies of Jefferson, Madison, and Monroe.

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Essay 9: Necessity of Studying What Takes Place in the Particular States before Speaking of the Government of the Union – Volume 1 Part 1 Chapter 5 Subchapter 12 of Democracy in America by Alexis De Tocqueville

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Guest Essayist: Jay McConville

Our Commissioners | Office of the Texas Governor | Greg Abbott

Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 82 (starting at the heading “Administrative Decentralization”) – 93 (stop at chapter 6) of this edition of Democracy in America.

Alexis De Tocqueville: Administrative Decentralization and the Character of the United States.

“What I admire most in America are not the administrative effects of decentralization, but its political effects” (Alexis De Tocqueville, Democracy in America).

Alexis De Tocqueville’s Democracy in America is an insightful examination of American society and its political institutions. In “The Necessity Of Examining What Happened In Individual States Before Considering The Union As A Whole – Political Effects Of Administrative Decentralization In The United States,” De Tocqueville emphasizes the importance of understanding the political structures at the state level before attempting to grasp the nature of the American Union. His admiration for the political effects of the American decentralized system highlights the importance of democratic participation and local governance over mere administrative efficiency.

In times of increasing political polarization, complexity of governance, and rising public debt, it is natural to look for ways to reduce redundancies and centralize operations. That has led many to question the effectiveness of the federalist system, especially given modern communications technologies. It is no longer difficult to communicate, as it was at our founding for example, between federal authorities and local communities. De Tocqueville was one of the first to observe that the division of powers among national, state, and local authorities in America could lead to inefficiencies in governance. After detailing some examples of this division, he readily admits that “the villages and counties of the United States would be more usefully administered by a central authority…” Yet De Tocqueville knew such efficiencies were not the most important aspect of government, but that instead, “individual forces [are] joined to the action of social forces,” and that when joined, “they often succeed in doing what the most concentrated and most energetic administration would be in no condition to execute.”

Laboratories of Democracy

Supreme Court Justice Louis Brandeis popularized the phrase “laboratories of democracy” in the 1932 Supreme Court case New State Ice Co. v. Liebmann. His emphasis, like many of today’s writers, was on effectiveness and efficiency. “It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country,” wrote Brandeis. This has often been cited as a reason to maintain what is otherwise an inefficient diffuse administrative state, as well as for leaving as much power locally as possible. Brandeis wrote, “[m]erely to acquire the knowledge essential as a basis for the exercise of this multitude of judgments would be a formidable task…Man is weak, and his judgment is, at best, fallible.” Brandeis’ opinion echoes much from De Tocqueville who wrote, similarly, that “[a] central power, however enlightened, however learned one imagine it, cannot gather to itself alone all the details of the life of great people. It cannot do it because such a work exceeds human strength. When it wants by its care alone to create so many diverse springs and make them function, it contents itself with a very incomplete result or exhausts itself in useless efforts…” Thus, an over-centralized state “excels, in a word, at preventing, not at doing.”

Reading Democracy in America, it becomes clear that while De Tocqueville and Brandeis might agree on the benefits of decentralization, De Tocqueville emphasized its role in fostering democratic participation as the primary benefit.

The Character of the Nation

De Tocqueville’s analysis of administrative decentralization compared the distinctive nature of American governance to European nations, where administrative power was often concentrated in the hands of a few. American decentralization, to De Tocqueville, was not just a matter of convenience but a deliberate strategy to promote democratic participation. European citizens, controlled by a centralized authority, often viewed their condition as akin to being a “colonist, indifferent to the destiny of the place that he inhabits.” The citizen’s connection to the nation was therefore suspect, reliant more on tradition than a genuine belief that his nation was his own. Longevity for the nation was therefore tenuous, as its governance “[does] not concern him in any fashion,” and “belong[s] to a powerful foreigner called the government.” As a result, European citizens found themselves “swinging constantly between servitude and license.”

De Tocqueville was more bullish on the American nation, even as tradition might fade, because, unlike Europeans, the American “applies himself to each of the interests of his country as to his very own… He has for his native country a sentiment analogous to the one that he feels for his family, and it is still by a sort of selfishness that he takes and interest in his state.” Americans believe, in the words of Abraham Lincoln, that this is a nation “of the people, by the people, [and] for the people.”

Out of Many, One.

True, federalism ensures a check on national authority and guards against tyranny. Additionally, decentralization promotes a more responsive and accountable government.

Most importantly, however, decentralization fosters a political culture of what we would today call buy-in – that deeply held belief that this is our nation, that we are not subjects, but full participants in its success now and into the future. It fosters civic responsibility and engagement, and develops a habit of self-governance, responsibility, and accountability. De Tocqueville saw this buy-in as essential for the sustainment of democracy and knew, like many today, that such self-reliance should never be sacrificed on the altar of efficiency.

Jay McConville is a former soldier, political activist, and business executive who writes on Substack at Goose & Gander (jaymcconville.substack.com). He is also a fitness trainer and a doctoral candidate at the L. Douglas Wilder School of Government and Public Affairs, Virginia Commonwealth University. Jay has served for more than seven years on Constituting America’s Governing Board of Directors.

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Essay 8: Necessity of Studying What Takes Place in the Particular States before Speaking of the Government of the Union – Volume 1 Part 1 Chapter 5 Subchapters 9 to 11 of Democracy in America by Alexis de Tocqueville

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Guest Essayist: Scot Faulkner


Our Commissioners | Office of the Texas Governor | Greg Abbott
Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 79 (starting at the heading “On The State”) through 82 (stop at the heading “Administrative Decentralization”) of this edition of Democracy in America.

The core of America’s federal system of government is viable state governments. America is called “the United States” to institutionalize the importance of distributed and diverse state governance as a balance to centralized power.

De Tocqueville fully understood this unique America concept by declaring “The Necessity of Examining What Happened in Individual States Before Considering the Union as a Whole”.

State legislatures, except Nebraska, mirror the two legislative chambers at the national level. In 1934, Nebraskans voted to merge their two legislative houses determining unicameralism would be more efficient and cheaper.

The concept of two legislative chambers, at both the national and state levels, began with the Royal Charter that established Jamestown in Virginia. It evolved from the Charter holders into governance by the King’s Representative (Royal Governor) and his Advisory Council. This evolved into the Senate at both the national and state level.

As De Tocqueville explains:

“The Senate is usually a legislative body; but sometimes it becomes an administrative and judicial body.”

A state’s House of Representatives, called the House of Delegates in some states, also has its roots in Jamestown. When the settlers demanded their own voice, the Virginia House of Burgesses, in 1619, became the first democratically elected legislative body in America.

De Tocqueville explains the difference:

“The other branch of the legislature, ordinally called the House of Representatives, participates in no administrative power and takes part in judicial power only by accusing public officials before the Senate.”

The House of Burgesses became a proving ground for what would become the “lower house” at the national and state levels.  “Upper” and “Lower” house designations were derived from their location within Jamestown’s legislative building. The House of Burgesses was located on the ground floor while the Governor’s Advisory Council met on the second floor.

Drawing from British tradition, the members of the House held their positions for shorter periods of time to be held closely accountable by those they represented.

De Tocqueville explains:

“By granting to the senators the privilege of being chosen for several years, and being renewed seriatim, the law takes care to preserve in the legislative body a nucleus of men already accustomed to public business, and capable of exercising a salutary influence upon the junior members.”

James Madison and Alexander Hamilton, writing under the pseudonym “PUBLIUS”, outlined this binding of the House of Representatives more closely to those they served in Federalist No. 52:

“Frequent elections are unquestionably the only policy by which this dependence and sympathy can be effectually secured…. It is a received and well-founded maxim, that where no other circumstances affect the case, the greater the power is, the shorter ought to be its duration.”

This unique legislative environment of having different terms and therefore different mandates/perspectives was considered a strength by de Tocqueville:

“To divide legislative strength, thus to slow the movement of political assemblies, and to create a court of appeal for the revision of laws – such are the sole advantages that result from the current constitutions of the two houses in the United States.”

De Tocqueville embraced the universal wisdom of how America’s state legislatures governed:

“This theory, nearly ignored in ancient republics, introduced into the world almost haphazardly like most great truths, unknown to several modern peoples, has at length passed into the political science of our day as an axiom.”

De Tocqueville then turns his attention to state governors.

He outlines the governor’s role as a “moderator and counsel”. This is very different from the powerful Royal Governors they replaced.  Governors serve as a counterbalance to the legislature as each chamber balances each other. This institutionalized series of “checks and balances” creates a web of accountability at both the state and national level. The lessons learned from royal overreach were embedded to prevent future tyranny.

Governors also have the power to “stop or at least to slow movement” of legislation.  This check on legislative power arises from the lessons learned from the English Revolution (1640-1660) when Charles I’s royal tyranny was replaced with Oliver Cromwell’s legislative dictatorship.

A governor, in their role as moderator, do set “out the needs of the country to the legislative body and makes it known what means he judges useful to employ in order to provide for them.” The legislature’s role is to approve or reject the governor’s agenda, serving as a balance to executive power.

De Tocqueville, who had previously outlined the importance of local government in America, explains that “the governor does not enter into the administration of townships and counties”.

Each level of government in America has its own role, power, and independence. From the national level on down to local communities, America’s strength is a structure that prevents centralized tyranny.

Scot Faulkner was the Chief Administrative Officer of the U.S. House of Representatives. Earlier, he served on the White House staff. He is Vice President of the George Washington Institute of Living Ethics at Shepherd University and the President of Friends of Harpers Ferry National Historical Park.

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Essay 6: Necessity of Studying What Takes Place in the Particular States before Speaking of the Government of the Union – Volume 1 Part 1 Chapter 5 Subchapters 1 to 5 of Democracy in America by Alexis de Tocqueville

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Guest Essayist: Raúl Rodríguez

Our Commissioners | Office of the Texas Governor | Greg Abbott

Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 56 – 65 of this edition of Democracy in America, and stops at the heading “On The County In New England.”

De Tocqueville’s study of townships in America is justly famous. He allows Americans to have pride in where they come from and in their history. He champions the idea of local civic participation and shows how it is a core element of American prosperity. The town, he tells us, is the key to understanding what true freedom is and fostering it in a democracy. This is a bold claim. Let us see what de Tocqueville has to teach us.

De Tocqueville states that one must look at the individual states prior to looking at the national government to understand America. De Tocqueville recognizes that the United States has a unique constitution that grants political power to states and the national government. The federal character of the US Constitution is one of the strengths of America. This virtue of America is better understood by examining not only the states, but also the towns and counties that make up the state. The local character of America, we will learn, gives America vitality and fosters freedom.

De Tocqueville memorably states that townships are “the sole association that is so much in nature that everywhere men are gathered, a township forms by itself.” Because towns are so natural, they exist in all societies. The town, he even declares, “appears to issue directly from the hands of God.” Despite the natural, or providential, character of towns, “the freedom of a township is a rare and fragile thing.” Town liberty requires citizens to come together and to fix their own problems. The difficulty with this is that towns often make mistakes. A large and sophisticated country “tolerates only with difficulty the trials of freedom in a township.” The authority overseeing a town often thinks that it can govern in a faster and more efficient way. As a result, town liberty is vulnerable to “the invasions of power”” (57). Town liberty, in other words, does not last long. What is amazing is that in America, town liberty still existed when de Tocqueville visited and he had reason to believe that it could possibly be maintained, albeit with considerable effort.

Rather than disparage the dysfunctional and provincial character of local towns, de Tocqueville praises them. De Tocqueville agrees that a centralized nation can sometimes get things done faster, but such a nation loses the spirit of liberty. There is something about liberty that requires small, local action by citizens. He memorably tells the reader that towns prepare citizens to be truly free:

“The institutions of a township are to freedom what primary schools are to science; they put it within reach of the people; they make them taste its peaceful employ and habituate them to making use of it. Without the institutions of a township a nation can give itself a free government, but it does not have the spirit of freedom” (57-58).

Freedom is not easy—it requires apprenticeship. Towns provide citizens with an opportunity to practice being free. Localism is a key ingredient to freedom.

The New England Township is elevated as a paragon of liberty. Numbering between two and three thousand inhabitants, New England is the epitome of local political action. De Tocqueville says that “the law of representation is not accepted” in the New England township. Citizens are their own masters and they unite to rule over themselves. This pure form of local freedom is unheard of in Europe and most of the world, de Tocqueville tells us. Ordinarily, citizens see problems, but have no power to fix them. In the township, citizens see a problem, come together to discuss the problem and to vote on how to fix it immediately. This fact of the township teaches citizens how to be powerful and independent. To be free means to have the power and independence to take action.

In the cosmopolitan world that we now live in, it can be hard to see the virtue of local towns. De Tocqueville helps us have a new perspective. He challenges us to reexamine, to rethink, what it means to be free. For de Tocqueville, freedom is not simply the right to do whatever you want, but the ability to take action with our fellow citizens to accomplish something good. By vindicating town life, de Tocqueville provides us with a practical means by which to learn and practice civic freedom. He also gives us a warning—local liberty is hard to keep. If citizens allow local decisions to be taken out of their hands, they may never get it back. Actively participating in town governance can be annoying and tiresome, but we should be wary of giving it up for the sake of convenience. Freedom requires vigilance, and even mistakes. Our small towns provide us with a space to practice the art of being free. De Tocqueville admonishes us: Return to your local communities—you will find freedom there!

Raúl Rodríguez is an Assistant Professor in the School of Civic Leadership at the University of Texas at Austin. He received his Ph.D. at the University of Notre Dame and his B.A. at Furman University. Dr. Rodríguez’s research and teaching focus on the classic texts of political philosophy and constitutional studies. His current book project is titled Redeeming Democracy: Tocqueville’s New Liberalism.

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Essay 7: Necessity of Studying What Takes Place in the Particular States before Speaking of the Government of the Union – Volume 1 Part 1 Chapter 5 Subchapters 6 to 8 of Democracy in America by Alexis de Tocqueville

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Guest Essayist: Charles Hurt

Our Commissioners | Office of the Texas Governor | Greg Abbott

Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references page 65 (starting at the heading “On The County In New England”) through page 79 (stop at heading “On The State”) of this edition of Democracy in America.

Anyone who has worked as a reporter for newspapers — from small town weeklies to big city dailies — can tell you that few things are more boring than the civic affairs of a tiny New England township. It’s existence, one might say, is “obscure and tranquil.” Yet, curiously, it is also the object of “lively affections” from the citizens who inhabit the township. We are reminded of this intense pride over a township’s mundane civic obligations every four years when the dutiful people of Dixville Notch, New Hampshire, trundle out into the deep snows near the remote Canadian border at midnight on a Tuesday to cast and count the first half dozen or so ballots in the nation’s presidential primary. It’s an affair bursting with so much pride among the townspeople as to seem like a Taylor Swift concert — even compared to that always show-boating Punxsutawney Phil predicting the end of spring down near Young Township closer to the end of winter in balmy Pennsylvania. To the outside cynic, the voters of Dixville Notch very often get it wrong and never has a primary come down to those first six or 11 votes cast by those hardy citizens. Yet the townspeople of Dixville Notch are undaunted and persevere every four years as if the life of the Republic depended upon it.

Because it does.

The “obscure and tranquil” nature of the New England township — and the “lively affections” inspired among its citizens — caught the jealous attention of French aristocrat Alexis de Tocqueville when he traveled to America in 1831 to study this budding new Republic. He was in awe of such curious behavior as if he were an explorer on a safari observing strange, new wild animals in their native habitat.

“The township is the hearth around which the interests and affections of men come to gather,” he observed.

Coming from a continent of aristocratic bloodlines, 1000-year religious wars, feudal fiefdoms and kingly realms with bejeweled crowns and walled cities, de Tocqueville considered this New England township in America a truly strange creature. What was the source of cohesion among its citizens? From where did such intense pride spring? How did they know what to do? Where was the castle? It is worth noting that many of these townships predated the republic to a time when they were remote, unwalled outposts in a vast kingdom loosely governed by a king whose palace was an ocean away. Even then, they were kind of on their own. While they were taxed by the king and had fealty to him, they were entirely on their own when it came to finding practical solutions to the very real problems they faced in daily civic life. It was this very whiff of practical independence that would become the wind that fueled the wildfire of freedom on the American continent.

“The revolution in the United States was produced by a mature and reflective taste for freedom, and not by a vague and indefinite instinct of independence,” de Tocqueville observed. “It was not supported by passions of disorder; but, on the contrary, it advanced with a love of order and legality.”

In the plain New England township, titles were loathed. Instead of Lords and Dukes, the officers of the township are called “justice of the peace” and “selectman.” Degrees in received wisdom were viewed with special suspicion.

“The justice of the peace is an enlightened citizen, but who is not necessarily versed in knowledge of the law,” de Tocqueville noted. “So they charge him only with keeping the order of society, a thing that demands more good sense and rectitude than science.”

The justice of the peace and the selectman is stripped of all “aristocratic character,” he writes.

In particular, de Tocqueville was struck by the “primitive” nature of the township and the “practical” matters so dutifully taken up by regular townspeople. If a road or a bridge washed out, who would fix it? Certainly not a king in some faraway land of fairy tales. The road had to be fixed and fixed fast so that the farmer could get his grain to the miller’s grist mill on the far side of the stream so that bread could be made so that the people of the township could eat. It was that simple. Practical self-interest was the social compact. Certainly, high ideals such as independence, life and liberty were sacred in the new Republic. But those principles alone would ultimately perish if all the townspeople starved to death. In the old country, governments and kings were forever justifying their existence and brutally confirming their authority. In this strange new country fueled by human nature and reigned by self-determination, government was a lowly affair entirely justified by its ability to ensure basic freedoms while solving practical problems that would clear the path to prosperity for the townspeople.

“In the bosom of the profound peace and material prosperity that reign in America, the storms of municipal life are few,” de Tocqueville wrote.

Obscure and tranquil? Yes. Even boring? Perhaps. But free.

Charles Hurt

Charles Hurt is the Opinion Editor and a columnist for The Washington Times. Often seen as a Fox News contributor on the cable network’s signature evening news roundtable, Mr. Hurt in his 20-year career has worked his way up from a beat reporter for the Detroit News and Washington correspondent for the Charlotte Observer before joining The Washington Times in 2003. He later served as D.C. bureau chief and White House correspondent for the New York Post and editor at the Drudge Report.

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Essay 5: On The Principle Of The Sovereignty Of The People In America – Volume 1 Part 1 Chapter 4 of Democracy in America by Alexis de Tocqueville

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Our Commissioners | Office of the Texas Governor | Greg Abbott

Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references start at the chapter four heading on page 53 and goes through page 55 of this edition of Democracy in America.

Alexis de Tocqueville’s seminal work, Democracy in America, offers a profound examination of the American political system, with particular emphasis on the principle of the sovereignty of the people. In Volume 1, Part 1, Chapter 4, de Tocqueville explores how this principle functions in the United States, attributing much of its success to the decentralized nature of American government, particularly through the institution of townships.

De Tocqueville identifies townships as the foundational units of American democracy, embodying the principle of the sovereignty of the people. He describes them as independent entities endowed with significant local autonomy, handling functions such as tax collection, school management, and road maintenance. This level of local governance contrasts sharply with the centralized administration prevalent in France, where the state manages most functions.

The autonomy of American townships, according to de Tocqueville, fosters widespread civic participation. He notes that almost every citizen is involved in some aspect of local governance, which serves as an essential educational tool. Through active participation in township affairs, citizens practice self-governance, develop a deeper understanding of their rights, and cultivate a sense of public spirit. This civic engagement strengthens democratic institutions from the ground up, reinforcing the principle of popular sovereignty.

Thomas Jefferson, one of the foremost advocates for states’ rights and local governance, argued for the devolution of power to states and localities within America’s federal system. Jefferson believed that the best government is one that is closest to the people, where citizens have the most direct control over their affairs. He saw local governance as a means to educate and engage citizens in the political process, thereby fostering a more vibrant and resilient democracy.

Jefferson’s vision aligns with de Tocqueville’s observations on the role of townships. By decentralizing power and granting autonomy to local governments, the American system ensures that citizens are not merely subjects of distant authorities but active participants in their governance. This decentralization, or dual sovereignty, creates a balance between national and local interests, promoting liberty and preventing the concentration of power.

The principle of federalism, which underpins the American political system, involves the distribution of power between the national government and the states. This diffusion of power is crucial in securing individual liberties. The 1992 Supreme Court case, New York vs United States, Justice Sandra Day O’Connor highlighted this aspect of federalism, stating that “Federalism secures to individuals the liberties that derive from the diffusion of sovereign power.” This case underscored the importance of maintaining a balance between centralized authority and local autonomy to protect individual freedoms.

In de Tocqueville’s analysis, the sovereignty of the people is most evident in the functioning of townships. These local units of government embody the principle of subsidiarity, where decisions are made at the most immediate level possible, thus promoting individual freedom and responsibility. The townships’ ability to manage their own affairs without excessive interference from higher levels of government exemplifies this diffusion of power.

De Tocqueville emphasizes the educational role of townships in American democracy. By engaging in local governance, citizens learn the practicalities of democratic participation. They develop skills in deliberation, negotiation, and decision-making, which are essential for the functioning of a healthy democracy. This hands-on experience in governance is invaluable in cultivating informed and active citizens.

Moreover, de Tocqueville observes that the local independence of townships nurtures a strong sense of community and public spirit. Unlike the centralized bureaucratic systems in Europe, where citizens often feel detached from their government, American townships foster a direct connection between the people and their representatives. This connection enhances accountability and responsiveness, further reinforcing the principle of popular sovereignty.

De Tocqueville contrasts the decentralized township system with the highly centralized administration in France, highlighting the benefits of the American approach. In France, the central government’s extensive control over local affairs stifles civic participation and inhibits the development of local leadership. In contrast, the American township system encourages local initiative and responsibility, creating a dynamic and participatory political culture.

This decentralization serves as a counterweight to potential abuses of power by the central government. By distributing authority across multiple levels of government, the American system prevents the concentration of power in a single entity, thus safeguarding individual liberties. This balance is essential for the maintenance of a free and democratic society.

The principle of the sovereignty of the people in America is intricately linked to the role of townships in the nation’s federal system. De Tocqueville’s observations highlight the significance of local autonomy and civic participation in fostering a vibrant democracy. Through the devolution of power, as advocated by Thomas Jefferson, and the diffusion of sovereign power emphasized in the New York vs United States case, the American system of federalism secures individual liberties and promotes active citizenship.

Townships, as the foundational units of American democracy, provide a practical and effective means for citizens to engage in self-governance. This decentralized approach not only enhances local governance but also serves as a critical educational tool, preparing citizens for broader political participation. Ultimately, the success and stability of American democracy rest on this delicate balance between local autonomy and centralized authority, ensuring that the sovereignty of the people remains at the heart of the nation’s political system.

Andrew Langer is a long-time contributor to Constituting America’s annual studies on the Constitution.  Currently, he serves as Director of the Center for Regulatory Freedom at the CPAC Foundation, as well as the host of several podcasts, including the Federal Newswire’s “Lunch Hour” podcast and “Andrew and Jerry Save the World.”. For nearly a decade, he was the host on WBAL Newsradio 1090 in Baltimore, and still fills-in regularly for radio shows across the country.  A graduate of William & Mary with a degree in international relations, he has taught regulatory policy at the university level.

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Essay 4: Social State Of The Anglo-Americans – Volume 1 Part 1 Chapter 3 of Democracy in America by Alexis De Tocqueville

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Guest Essayist: Joerg Knipprath

Our Commissioners | Office of the Texas Governor | Greg Abbott

 

Essay Read by Constituting America Founder, Actress Janine Turner

 

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 45 (start at chapter 3 heading) – 53 (stop at chapter 4 heading) – of this edition of Democracy in America.

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De Tocqueville long has had the deserved reputation of an insightful early observer of the United States and its people. His discussion of the social condition of Americans and its influence on their personal and political character is a case in point. De Tocqueville uses this chapter as an introduction to a further and more detailed analysis later in the book. Although De Tocqueville’s account is informative and illuminating, one must be conscious of its author’s limitations. In various particulars, his remarks are outdated due to no fault of his, having been overtaken by significant social and technological events. Some are likely incorrect, and yet others reach conclusions more comprehensively explained by other developments. Moreover, as the typical current discussion of historical events sadly demonstrates, it is difficult to rise above one’s own cultural background, biases, and attitudes, for us no less than for De Tocqueville.

De Tocqueville’s main theme in this chapter is the mutually reinforcing relationship of American social conditions, the character trait of seeking equality, and the political tendency in favor of democratic government. To develop that theme, he attributes considerable importance to changes in the law of inheritance at the time of the American Revolution. Indeed, as he describes, American states generally abandoned feudal English practices of entail and primogeniture.

Although this is not an essay on English land law, a very brief and, admittedly, superficial foray into the subject is useful. Entail allowed “dead-hand control” in that a landowner would convey his property (in practice it usually—but  not always—was a male landowner) to someone with the proviso that the recipient could transfer the land only to his kin (usually his issue). That kin could only transfer to their own kin, and so on, within the structure of primogeniture. The entail could keep landed estates within the family and preserve the family’s land based status.

Primogeniture required that, in general, the entire landed estate went to the eldest son. If there was no son, a more curtailed estate would go to any daughters. Those daughters’ interests then would go to their eldest sons. This system helped to prevent estates from being broken up into undesirably smaller parcels over time. However, as De Tocqueville points out, it also fostered economic inequality among family members and social inequality between the great landed nobility and the rest of society, including the emerging commercial bourgeoisie. At the same time, primogeniture had the—probably unintended—consequence of pushing the younger sons of the nobility into the military, the legal profession, or the church. Much of England’s imperial success was engineered by those who were deprived by primogeniture of inherited landed wealth.

Complex interrelated changes in European society gradually produced an economically powerful and politically restive commercial elite. Money and trade became the focus of enterprise and wealth. With the decline of feudalism, land became more commodified. Entail and primogeniture survived in some relic form in England into the 20th century. However, they already had lost their vitality long before De Tocqueville wrote, due to changed social conditions and through the creativity of English lawyers.

Attempts to plant the English law of land tenures in American colonies occurred but fell on inhospitable soil. Not all colonies were initiated by English noblemen. Even within the proprietary colonies, the authority of the lords proprietor was challenged almost from the beginning by the settlers who, whether farmers, merchants, artisans, or mechanics, represented a broad middle class and who did  not shy from using their numbers and their taxes for political leverage. Moreover, the English families mostly remained in the old country, several thousand miles  across the ocean. There arose some economically and politically powerful American families of Dutch descent in New York and English descent in Virginia  and other Southern and Border states. But, as De Tocqueville acknowledges, “So, therefore, in our day in America the aristocratic element, always weak since its birth, is, if not destroyed, at least weakened, so that it is difficult to assign it any influence whatsoever in the course of affairs.”

Finally, the North American colonies had an abundance of something that England lacked by comparison, land. As long as people could move freely across the next ridge of mountains, neither entail nor primogeniture was a barrier to land acquisition and to wealth and status. In short, while De Tocqueville’s thesis about the intimate connection and critical causal relationship between the abolition of such land law doctrines and the development of American democratic character is interesting, there may be less to it than he claims. It might be more accurate to state  that the republican nature of American post-Revolutionary War politics and the resulting constitutional realignment made it easier for state legislatures to sweep away anachronistic legal doctrines.

With those disclaimers, many of his observations and conclusions are worth contemplating, both for their general validity and their continued specific relevance to current American social conditions and political structure. “In order to know the legislation and mores a people, one must therefore begin by studying its social state.” So much has been a common staple of anthropology and political philosophy for millennia. Plato’s exploration of the relationship between the nature or soul of the individual and that of the community comes to mind. Aristotle’s  argument in favor of the social conditions provided within the Greek polis as best conducing to human flourishing is another example. Baron de Montesquieu added climate and ecology to the factors determining the character of a people and their  customs and laws, while his premise of the importance of a people’s social condition to their political system matched that of his countryman.

Ordinary law, including legislation, is most effective when it arises organically from the habits of the people and responds to the community’s felt  needs of the times. Law imposed from the top and used instrumentally to achieve a “good” community envisioned by a self-proclaimed enlightened elite and their clerisy is less likely to account for the full range and nuance of the community’s social condition. At the level of a political constitution, the study of a people’s social condition must take into account historical influences and cultural predispositions beyond what might be needed for ordinary civil or criminal law.

De Tocqueville generally views the American emphasis on equality as a commendable trait. Equality is at the heart of an eminently democratic American  political structure, as he describes it. There is relative economic equality, not due  to a lack of wealthy individuals, reticence about the love of money, or commitment to the permanent equality of property. Rather, there is economic mobility. “In  America most of the rich have begun by being poor,” and “fortune turns there with  incredible rapidity and experience teaches that it is rare to see two generations  collect its favors.”

This is an important factor for republican government. A broad middle class,  constituted of farmers, merchants, artisans, and mechanics, was the focus of  republican theory from ancient Greece to the American founding. Through its  stabilizing influence on the inherent contentiousness of factional political  competition, a broad property-owning middle class as an engine for general  prosperity and maintenance of so-called bourgeois values and morals is a critical  factor for success and longevity of a republic. The current unease about wealth  inequality reflects in part a concern about its effect on the essence of our political  system, self-government. However, wealth inequality is natural in an advanced  technological society based on knowledge. We are not a nomadic hunter-gatherer  society. It is not wealth inequality as such that is the problem, it is whether or not  there is sufficient economic mobility to avoid multi-generational economic and,  ultimately, political stratification.

This cultural devotion to the principle of equality is generally beneficial. It provides the incentive to be economically productive and successful. In education, few are illiterate. “Men show themselves to be more equal in their fortunes and their intelligence … than in any country in the world and than they have been in any century of which history keeps a memory.” On the political side, equality promotes democratic sentiment and political fluidity. “This passion tends to elevate the small to the rank of the great ….”

De Tocqueville acknowledges that there is also a dark side to equality and the democratic principle. He appears to have taken to heart Plato’s lessons in The Republic about the dangers of the democratic man. “[O]ne also encounters a depraved taste for equality in the human heart that brings the weak to want to draw the strong to their level and that reduces men to preferring equality in servitude to inequality in freedom.” This tendency, rooted in envy, is certainly not unknown today.

As to the political danger, “when citizens are all nearly equal, it becomes difficult for them to defend their independence against the aggressions of power…. People can therefore draw two great political consequences from the same social state [maintaining popular sovereignty or succumbing to absolute power of one ruler];…” He concludes, “The first to be submitted to the formidable alternative  that I have just described, the Anglo-Americans have been happy enough to escape  absolute power.” But the danger is always present, and, if Plato is to be believed, the same social and political characteristics that lead to increased equality and  democracy have inherent flaws which ultimately lead to tyrannical government.

De Tocqueville avers that the cause for Americans’ success up to that point was their circumstances (presumably overall prosperity and wide-spread property ownership), origin (presumably deeply ingrained cultural influences), enlightenment (comparatively wide-spread literacy), “and above all mores ….” If  De Tocqueville was correct in at least the core of his analysis of the social condition of the dominant Anglo-American population of the United States in the  mid-19th century, one must now confront two difficult questions. To what extent do the social and economic conditions he saw as critical pre-requisites for self government and popular sovereignty within a republican system still exist? If they have become eroded and resulted in (or are the result of) more systemic economic stratification, less connection to cultural influences that previously defined American republicanism, and collapse of traditional morals, can these deficiencies be mitigated and the alternative tendency to tyranny be avoided?

 

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.

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Essay 3: On The Point of Departure and Its Importance for the Future of the Anglo- Americans – Volume 1, Part 1, Chapter 2 of Democracy in America by Alexis de Tocqueville

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Guest Essayist: Tony Williams

Our Commissioners | Office of the Texas Governor | Greg Abbott

Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages  27 (start at chapter 2 heading) – 45 (stop at chapter 3 heading) – of this edition of Democracy in America.

Please leave a comment in the blog below and automatically be entered in our weekly drawing for a free copy of the book!

Alexis De Tocqueville was a French traveler who produced one of the most discerning observations about American democracy ever written. His discussion of the Puritan origins of American democracy is ample proof of his keen understanding. In De Tocqueville’s view, the Puritans made profound contributions to civil and religious liberty in what he terms, “the first age of the American republics.”

De Tocqueville acknowledges that the English tradition of rights in the Magna  Carta was important to the colonists’ attachment to rights, freedoms, and the rule of law that were a ““fertile seed of free institutions.” But, whatever their country of origin, they experienced common hardships settling North America that promoted equality instead of European feudal aristocracy. While De Tocqueville briefly discusses the South and argues that slavery bred a character of haughtiness and extremes of luxury and poverty:

Slavery as we shall explain later, dishonors work; it introduces idleness into society, and with it, ignorance and haughtiness, poverty and luxury. It enervates the forces of the intellect and puts human activity to sleep. The influence of slavery, combined with the English character, explains the mores and social state of the South.

He focuses on the Puritan democracy that shaped the American character and self rule.

De Tocqueville sees several defining characteristics of Puritan democracy that supported religious and civil liberty. The Pilgrims, he notes, sought to escape persecution and enjoy religious freedom to worship God as they pleased. Importantly, they settled as middle-class families who were the backbone of a society that valued family, order, and morality.

In addition, one of the first things the Pilgrims did in the New World was to agree to a political covenant establishing the rule of law. The Mayflower Compact created a civil body politic to create “just and equal laws” in support of the common good. The towns of New England formed democracies in which the people were sovereign and “name their magistrates…[and] give themselves laws.”

In their democratic town meetings, the sovereign people voted and participated in public affairs, enjoyed individual freedom, and consented to taxes. They served in local public offices that served the needs of the community. The citizens formed strong attachments to their community and were habituated in their rights, duties, and morals.

One of the main pillars of strong, democratic New England towns was the great emphasis upon education. Townspeople paid taxes to support public schools. De Tocqueville correctly observes that the Puritans were a people of the Book who valued education and encouraged literacy to read Scripture. “It is religion that leads to enlightenment,” he wrote.

De Tocqueville argues that New Englanders clearly demonstrated the close ties of “the spirit of religion and the spirit of freedom” that “lend each other a mutual support.” Importantly, he states that Puritanism provided a natural law framework for liberty under law rather than licentiousness.

While he does not directly address the rich tradition of Protestant resistance theory that was similar to and predating the Enlightenment ideas of John Locke, De Tocqueville believes that Puritan covenant theology supported an understanding of civil liberty that the Founders would have understood. The Puritans believed that  the Creator was the source of natural rights. A just government supported a rule of  law and a moral society that protected the rights granted by the divine.

De Tocqueville concludes the chapter with an exploration of national character. He states that the English tradition of liberty obviously influenced colonial political ideas and practice, but he offers a rather bold assertion that in understanding the  American founding, “one ought therefore to distinguish carefully what is of Puritan origin or of English origin.” The tenor of the chapter is that one should not  underestimate just how important the Puritans were to shaping American democracy.

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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Essay 2: External Configuration Of Northern America – Volume 1, Part 1, Chapter 1 of Democracy in America by Alexis de Tocqueville

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Our Commissioners | Office of the Texas Governor | Greg Abbott

Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 3 – 27 of this edition of Democracy in America, and stops at the Chapter 2 heading.

Please leave a comment in the blog below and automatically be entered in our weekly drawing for a free copy of the book!

In 1831, Alexis De Tocqueville came to America, sent by France to investigate the United States of America’s prison system. De Tocqueville does that and much more in his incredible, sprawling book that provides his impressions of democracy in North America.

De Tocqueville addresses in the first volume and part and chapter the majestic, sprawling geography of the United States. He refers to the “external configuration” of North America. De Tocqueville refers to the “methodical order” that separates land and water, with two vast regions divided. He notes the two great mountain ranges that separate the regions, one being the Alleghenies in the east, and the other the Rocky Mountains in the west.

In between the two mountain ranges is the “Father of Waters, or the Mississippi.” The valley watered by the Mississippi River “dispenses good and evil at will, and in that it is like the god”. De Tocqueville notes that the waters are responsible for the country’s sterility and abundance. He was very impressed with the Mississippi Valley, making the following glowing attribution:

“The Mississippi Valley is, all in all, the most magnificent dwelling that God has ever prepared for the habitation of man, and nonetheless one can say that it still forms only a vast wilderness.”

De Tocqueville would be pleased, one would think, if he could jump ahead almost 100 years to the present and see that the wilderness is no more.

Turning to the territory that is east of the Alleghenies and west of the Atlantic Ocean, De Tocqueville characterizes that part as “a long band of rocks and sand that the sea, in retreating, seems to have forgotten.” The small territory, 100 miles wide and 900 miles long, did not lend itself to ideal or easy farming. This land De Tocqueville describes was “on that inhospitable coast” where “were born and grew the English colonies that were day to become the United States of America”. When one reads and ponders that statement, one realizes how incredible it is that those colonies became the base for this great nation of ours, which spans beyond the Rockies to the west coast and beyond.

In this first part, De Tocqueville speaks much of the Native Americans and contemplates the first European settlers’ arriving to the new place. He writes of the time before the Europeans came to our shores and the inhabitants:

He speaks of the Indians as “equal and free.” He contemplates the “landing on the shores of North America” by Europeans having little impression on the natives, as “their presence gave rise neither to envy or fear.”

“Mild and hospitable in peace, pitiless in war, even beyond the known boundaries of human ferocity, the Indian would expose himself to die of hunger in order to assist the stranger who knocked at the door of his hut in the night ….. The most famous ancient republics had never admired a firmer courage, prouder souls, a more intractable love of independence than was hiding in the wild woods of the New World.”

“The Indian knew how to live without needs, to suffer without complaining, to die singing. ….they adored God, the creator of the universe. Their notions on great intellectual truths were generally simple and philosophical.”

De Tocqueville in this chapter identifies the resources and the bountifulness of the United States and provides reasons why the nation he wrote so much about was in the position it was, even before the Industrial Revolution that was soon to come.

In closing chapter 1, De Tocqueville sets up the overall premise of his book, the democracy he experienced.

He wrote, “It was there that civilized men were to try to build a society on new foundations, and applying for the first time theories until then unknown or reputed inapplicable, they were going to give the world a spectacle for which the history of the past had not prepared it.”

Much of what De Tocqueville wrote has weathered two hundred years and gone through massive changes, yet his views on the exterior lands is amazing and somewhat forecasting, as the map and America he explored in 1831 was not the sea to shining sea nation we live in today.

Daniel A. Cotter is Attorney and Counselor at Dickinson Wright PLLC. Dan focuses his practices in a variety of areas of corporate law and litigation, including insurance law, complex business disputes and counseling, employment law, corporate transactions, corporate governance and compliance, and cybersecurity and privacy law. Dan was an adjunct professor at The John Marshall Law School, and has taught Insurance Law, Accounting for Lawyers and SCOTUS Judicial Biography. Dan graduated summa cum laude from The John Marshall Law School and received his B.A. in Accounting from Monmouth College, magna cum laude. Dan is a frequent writer and presenter on various topics, including the nation’s history and the Supreme Court, and in 2019, his book, “The Chief Justices,” was published.”

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Introduction to Democracy in America by Alexis de Tocqueville: Why Every American Should Read a Book by a Frenchman

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Guest Essayist, Pete Peterson, Dean of the Pepperdine School of Public Policy

Our Commissioners | Office of the Texas Governor | Greg Abbott

Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Leave a comment in the blog below and automatically be entered in our weekly drawing for a free copy of the book!

In the introduction to their translation of Alexis De Tocqueville’s Democracy in America, the renowned Harvard historian, Harvey Mansfield, and his late wife, Delba Winthrop, describe the volume as “at once the best book ever written on democracy and the best book ever written on America.” Though written almost two centuries ago, the book’s insights on American culture and exceptionalism could not be more timely. Though coming in at 700+ pages in the Mansfield/Winthrop edited edition, it’s well worth an investment of time and study by every American.

Alexis De Tocqueville was a French aristocrat and government official who landed in the United States in 1831 with his friend, Gustave de Beaumont, ostensibly to study America’s prison system, but his plans soon change as he encounters a culture so different than his own. In the first paragraph of the book, De Tocqueville lays the foundation for his overarching argument about the country’s exceptional nature by declaring that what struck him most about America in those first few days of the visit was the “equality of conditions”. He goes on to argue that “this enormous influence this primary fact exerts on the course of society; it gives a certain direction to public spirit, a certain turn to the laws…and particular habits to the governed.” By “equality of conditions”, De Tocqueville did not mean to say that everyone lived in equal circumstances, but something closer to “equality of opportunity.”

From this firm foundation, De Tocqueville perceives the major cultural factor (what he calls “mores”) that appears to be necessary to support a country where equal opportunity reigned as the central economic dynamic. He quickly discovers that Americans hold to a doctrine he calls “self-interest rightly understood” – a worldview that dictates a certain degree of reliance on neighbors and community in order to accomplish tasks ranging from building churches to roadways. Remember, at this stage in America’s history, the federal government had little power to determine local affairs. As De Tocqueville writes, “they show with complacency how an enlightened regard for themselves constantly prompts them to assist each other, and inclines them willingly to sacrifice a portion of their time and property,” for the common good.

Comparing with his native Europe, De Tocqueville is also shocked to see religion and government mix in a way that’s actually beneficial rather than a source of bloody conflict. Unlike Europe, America did not have a national religion, but ironically, this contributed to a flourishing of faith in the country. From developing Americans’ political skills by serving in local church administrative councils, to working with faith-based nonprofits, De Tocqueville concludes, “Religion, which, among Americans, never mixes directly in the government of society should therefore be considered as the first of their political institutions; for if it does not give them the taste for freedom, it singularly facilitates their use of it.”

This willingness of Americans to collaborate through nonprofit and ad hoc civic organizations is what De Tocqueville describes as “associativeness”, and it’s a major distinction between this burgeoning republic and Europe. From temperance associations to foreign missionary support organizations, De Tocqueville sees Americans put their faith into action even as they respond to local needs that would have been the purview of government in Europe. He observes, “Everywhere that, at the head of a new undertaking, you see the government in France and a great lord in England, count on it that you will perceive an association in the United States.”

As we conclude our whirlwind review of Democracy in America, it’s worth noting that De Tocqueville’s last chapters in the book can be seen as prophetic in describing the future of American (and other democracies’) society. It’s not an optimistic perspective, and one grounded in the Frenchman’s belief that with the increasing wealth he foresees coming to this country, Americans will gradually withdraw from their associations, their faith, and the community-spirit. De Tocqueville looks to the future: “There is, in fact, a very perilous passage in the life of democratic peoples. When the taste for material enjoyments develops in one of these peoples more rapidly than enlightenment and the habits of freedom.”

De Tocqueville fears that as Americans earn the material benefits of freedom, they will look to government not to protect our liberties, but to protect our “stuff”. He describes this dynamic: “each of them desires that it [central government] aid him as an exception in the special affair that reoccupies him, and he seeks to attract the action of the government to his side, all the while wanting to shrink it for everyone else.”

It is here where De Tocqueville wonders whether the “self-interest rightly understood”, which drew Americans into civil society and community would become “self-interest wrongly understood”- a selfishness and withdrawal from the public square. For future leaders, De Tocqueville sees that “individual independence and local liberties will always be the product of art.” Are we seeing these trendlines today? I think these concerns, and the importance of citizen engagement are vital to consider during this election year, and beyond.

Pete Peterson is the Braun Family Dean’s Chair of Pepperdine University’s School of Public Policy. Prior to that he was the executive director of the School’s Davenport Institute, which trains local government officials to improve their public meeting processes. Pete speaks and writes widely on civic participation, viewpoint diversity in higher education, and the increasing role of technology in local government.

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Mr. James Ingram

Mr. James Ingram was Constituting America Founder, actress Janine Turner’s, beloved 5th grade teacher, who instilled in Janine a love of our founding fathers, through the 5th grade’s production of 1776.

Mr. Ingram was honored as Constituting America’s Constitutional Champion in 2011 and was a beloved and active member of our Education Advisory  board.

Mr. Ingram’s full obituary is below.

NORTH RICHLAND HILLS – James Ingram, 72, passed away on Saturday, March 2, 2024.
Graveside Service: 10 a.m. Saturday, March 9, 2024, at Mount Olivet Cemetery with Jinx Ingram Thompson to officiate. Elizabeth Hatley, a dear friend, will deliver the eulogy. Visitation: 5 to 7 p.m. Friday, March 8, 2024, at Mount Olivet Chapel in the Sandburg Suite.
James was born in Fort Worth. He was the son of, James and Juanita Ingram. James accepted Christ as his personal Savior at a young age. He prayed daily and maintained a positive spirit. His cousins, Jinx and Betty, were like sisters to him. They had many great times including U.S.A. and world travel experiences.
James graduated from Texas Wesleyan University with a Bachelor of Science degree. He obtained a Master’s in Education degree from Texas Christian University.
His lifelong, devoted career encompassed 34 years as an elementary fifth grade teacher at Eagle Mountain Elementary. He enjoyed the challenge of Shakespeare’s Romeo and Juliet in a modified version on the stage with his fifth grade Language Arts classes. He also produced musicals with his students early in his career. The Eagle Mountain-Saginaw I.S.D. school board named the school stage in his honor when he retired.
Other educator honors included: 1995-1996 District-wide Elementary Teacher of the Year, Peer Professional, PTA Life Membership Recipient, PTA Extended Service Award, and Saginaw Chamber of Commerce Educator of the Year.
James appeared on television’s Disney’s American Teacher Awards. He was selected by actress, Janine Turner, a wonderful former student, as her favorite teacher. Furthermore, Ms. Turner recognized him as “The Constitutional Champion Teacher at the “Constituting America” gala.
His involvement with Miss Texas Pageant included Board of Trustees member and Awards Ball Set-Up committee chairman. James was inducted into the Miss Texas Hall of Honor for his pageant work.
James was a season ticket holder with dear friends for the Fort Worth Symphony Pops, Texas Ballet Theater, and Theatre Arlington. B. J. Cleveland, former artistic director at Theatre Arlington, was a talented former student.
Trips to the Texas Rangers baseball games were a highlight. The “good times” were highlighted with his Bunco groups of special friends. The Olive Garden, Chili’s, Babe’s Restaurant, Saltgrass, and Abuelo’s were his favorite restaurants. James enjoyed reading best sellers and viewing the Oscar-nominated movies. Morning walks with his mall buddies at the NE Mall and Grapevine Mills Mall, started each day with special conversations and many smiles. Pilgrimages to Scarborough Faire in Renaissance costumes with his Bros.-in-Hose provided majestic experiences for James and friends.
Surgeries were a challenge later in life. These included open-heart surgery, two hernia surgeries, six leg surgeries, cataracts surgeries, skin cancer surgery and gallbladder surgery. God’s Grace saw James through these times.
Survivors: All from Fort Worth
Cousin, Jinx Ingram Thompson
Cousin, Betty Evans
Second Cousin, Kim, and her 3 children
Second Cousin, Josh and wife, Laurie and their 5 children
Cousin, Tommy Freeman, and his 3 children
To plant Memorial Trees in memory of James Arnold Ingram, please click here to visit our Sympathy Store.

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Maureen Quinn

In loving memory of our dear friend, Anne Maureen Quinn. Maureen entered this life on September 25, 1956 and passed away December 14, 2022. Maureen was a bright light who shone in all of our lives.

We were blessed to have Maureen’s beautiful voice narrate many of our 90 Day Studies. She also submitted our We The Future Contest winners’ films into film festivals, achieving over 118 film festival acceptances for our winners over her time with us. In Maureen’s memory, we have named our We The Future short film category after her.

Maureen was a talented writer, inspirational life coach and sought after voice talent in Hollywood, but most of all, she was a treasured friend to all of us who had the blessing of knowing her and working side by side with her over the years.

Please join us in leaving your remembrances of Maureen here on our page.

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Conclusion: Preserving the First Principles of the American Founding

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Guest Essayist: Chris Burkett

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

Does the United States today resemble the nation envisioned by the American Founders? Have we lived up to the political and constitutional principles they believed are so important for maintaining a free society and remaining a self-governing people? Have we as a people done a good job of preserving those principles by educating and reminding each generation on their importance? Constituting America’s 90-Day Study on “First Principles of the American Founding” should help each of us, as citizens, think about the first two questions in a more enlightened and informed way – and certainly goes far in ensuring that the third question is answered in the affirmative.

In this series of essays, written by exceptionally thoughtful thinkers, teachers and scholars, we can discern how insightful the American Founders were in recognizing and articulating the first principles upon which the nation of America was founded. From ideas identifying the basis of rights in nature rather than tradition, to constitutional principles that established a limited government, to foreign policy principles meant to promote justice with other nations, these essays allow us to glean in a more capacious way the overarching ideas that informed who we were meant to be as a people and a nation.

These essays reveal that Americans, and especially the Founders, had learned extensively from the careful study of history. Born of English tradition, Americans gradually came to develop their own identity – one might even say “mind,” as Thomas Jefferson called it. Separated from Great Britain and largely left alone for decades, American colonists lived in relative freedom and came to establish local governments and social institutions that complemented their understanding of rights and liberties. They frequently heard these ideas of individual liberty and limited government reinforced in their churches, newspapers, shops, and businesses. The essays in the 90-Day Study, as a whole, show the story of how Americans became one people united by common principles.

The American Revolution was, in more than one sense, a test of those principles. Should the Revolution fail, the principles of liberty and self-government might be lost forever. It was also a test in the sense that Americans found themselves in the position of having to accomplish a political separation and wage a war in accordance with the very principles they declared to be self-evidently true. Winning the war and gaining independence seemed to many, including George Washington, nothing short of miraculous. Having accomplished this, Americans next found themselves having to apply the principles of the Declaration of Independence to the creation of a government that would fulfill the demands of justice both at home and toward foreign nations. In other words, Americans had to learn how to act like a nation – and this is when Americans applied and thought even more deeply about the meaning of their founding principles.

Domestically, Americans faced the great difficulty of establishing a republic, based on consent, to replace the traditional form of monarchy that had prevailed throughout most of human history. The challenge facing the Framers of the United States Constitution was how to frame a government that was sufficiently powerful to secure the natural rights of American citizens, but that was also sufficiently checked to prevent it from abusing and violating these rights and liberties. Another great challenge was to find constitutional ways of obligating America’s government to secure American sovereignty and independence, and to respect the independence and sovereignty of other nations. The essays in this 90-Day Study reveal that, to fulfill these ends, knowledge of fundamental principles proved to be the guiding star for the Framers of the Constitution, and the standard by which American citizens could judge the justice or injustice of acts of government even after the Constitution had been ratified.

In the end, these essays bring to the fore the Founders’ view that without civic virtue, no government – not even America’s own Constitutional government – can succeed. Local political participation can never be replaced by national administration without some cost to individual liberty; and despite the best efforts of the Framers of the Constitution, civic awareness and engagement is still necessary to check laws and policies that are contrary to the principled purposes of government. All of this reinforces why the Founders believed that a proper civic education of the American people was so critical – an education that informs them of both their rights and duties. This 90-Day Study, as a whole, aims to fulfill that crucially important purpose of the American Founders.

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

 

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Upholding the Principle of Free Civil Discourse and Public Debate Without Censorship

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Guest Essayist: Gary Porter
Bill of Rights of the United States Constitution

American government, as President George Washington notes, is to be based on opportunities to discuss political and policy issues by reflection and choice rather than by accident and force:

[I]f Men are to be precluded from offering their Sentiments on a matter, which may involve the most serious and alarming consequences, that can invite the consideration of Mankind, reason is of no use to us; the freedom of Speech may be taken away, and, dumb and silent we may be led like sheep, to the Slaughter. – George Washington, Speech to the Officers of the Army at Newburgh, the Newburgh Address, March 15, 1783.

The Articles of Confederation Congress had difficulty with the states meeting their funding requisitions during most of the Revolutionary War period. Ending the siege at Yorktown in General George Washington’s favor only made matters worse. With the British no longer posing a threat, the men of the Continental Army were ordered into bivouac at Newburgh, New York. Soon thereafter, Congress stopped paying them, as a “cost-saving” measure, and also stopped funding the soldiers’ pensions.

The conflict over this came to a head when an anonymous letter was circulated in Congress in which a threat was made: the Army would remove itself to “unsettled” western lands, leaving the states unprotected until such time as pay and funding resumed.

Commander-in-Chief General George Washington traveled personally to Newburgh, and in an emotional scene during which he apologized for having to use spectacles to read his prepared remarks said, “I have grown not only gray, but almost blind in the service of my country,” he convinced the officers and men to renew their trust in Congress. Washington noted that the anonymous letter was appropriate since, “[I]f Men are to be precluded from offering their Sentiments on a matter, … the freedom of Speech may be taken away, and, dumb and silent we may be led like sheep, to the Slaughter.”

“The Founders considered freedom of speech a fundamental natural right.”[i] At the same time, the right was also understood to not be absolute because during the early colonial period, “seditious words” were taken seriously and often prosecuted, as was blasphemy in most states.

When Patrick Henry proclaimed on May 29, 1765, that “Caesar had his Brutus, Charles the First his Cromwell and George the Third … may profit by their example,” he was indeed guilty of treason under English law. To “compass or imagine” the death of the King was one of the several crimes in the Treason Act of 1351, and Henry knew this. To the cries of “Treason” from some of the Burgesses in the room, Henry replied, “If this be treason, make the most of it.”

Christian thinker, G. K. Chesterton, said: “To have a right to do a thing is not at all the same as to be right in doing it.”[ii]

Sir William Blackstone agreed: “Every freeman has an undoubted right to lay what sentiments he pleases before the public…But if he publishes what is improper, mischievous, or illegal, he must take the consequence of his temerity.”[iii]  Note that Blackstone refers here to “illegal” speech; the Treason Act would provide but one example.

But other founding era philosophers disagreed. French philosopher Baron de Montesquieu,[iv] in his acclaimed work, The Spirit of the Laws, wrote: “The laws do not take upon them to punish any other than overt acts. . . . Words do not constitute an overt act; they remain only an idea.”

Without freedom of speech during the period 1760-1776, there likely would have been no revolution leading to American independence. Based on the Founder’s experience, the British would have prohibited public speeches arousing the people to claim their freedom and the press would have been severely curtailed.

“Freedom of speech is a principal pillar of a free government; when this support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruins. Republics and limited monarchies derive their strength and vigor from a popular examination into the action of the magistrates. An evil magistrate entrusted with power to punish for words, would be armed with a weapon the most destructive and terrible.”[v]

In ratifying the United States Constitution, Virginia, North Carolina and Rhode Island (both of which copied Virginia’s submission verbatim) all proposed a free speech amendment and James Madison included an amendment, which read: “That the people have a right to freedom of speech, and of writing and publishing their sentiments; that the freedom of the press is one of the greatest bulwarks of liberty, and ought not to be violated.”[vi] In successive House and Senate committees this was “wordsmithed” to the wording eventually placed within the Bill of Rights of the United States Constitution.

The Founders great emphasis on freedom of speech makes the Alien and Sedition Acts of 1798 difficult to explain. Perhaps the expression “when the shoe is on the other foot” best captures Congress’s motivation to censor and suppress speech as the infant nation of America attempted to stay neutral in the on-again, off-again war between England and France. Americans were equally split on the question of which country the John Adams administration should support (even as both England AND France were both interdicting American shipping heading for their enemy’s ports). The Sedition Act made it illegal to make false or malicious statements about the Adams administration, specifically mentioning the President while conspicuously not mentioning the Vice-President. Criticism of Thomas Jefferson was therefore fair game, and certain “Adams-friendly” newspapers took great advantage of it.

So convinced they were of the unconstitutionality of the Acts, Thomas Jefferson and James Madison consented to drafting, respectively, the Kentucky and Virginia resolutions. These essays argued that the states have both a right and a moral responsibility to declare unconstitutional acts of the national government to be so and hold them to be null and void within their state.

The U.S. Supreme Court eventually found the Sedition Act to be constitutional in United States v. Thomas Cooper (1800).[vii] Congress had set the Alien and Sedition Acts to expire on March 3, 1801; the reason being was, the following day, a new President and Vice President would be inaugurated. Over a century later, President Woodrow Wilson’s administration would bring back the Alien and Sedition Laws (as the Espionage and Sedition Acts) as the U.S. entered World War I.

The Free Speech landscape had changed drastically by 1925 when the Court “incorporated” the Free Speech Clause into the Due Process Clause of the Fourteenth Amendment in Gitlow v. New York,[viii] creating an explosion of free speech cases based on state government actions, which continued thereafter.

Although the Free Speech Clause was intended to only restrict government actions, in the 1970s, the Supreme Court began deciding that commercial “speech” could also be regulated to some extent.[ix] Since that time, regulations on commercial advertising have become commonplace.

Eventually, the Court decided that certain types of “symbolic speech,” i.e. “speaking” through actions rather than words, should also be protected.[x] Over the years, the following are some examples of types of symbolic speech among those requiring protection:

  • Wearing of black armbands (Tinker v. Des Moines Independent Community School District,1969)
  • Flag-burning (Texas v. Johnson, 1989)
  • Burning a Cross (R.A.V. v. City of St. Paul, 1992)
  • Political campaign contributions (Citizens United, 2010)

Without freedom of speech, remaining steadfast to the principle of free civil discourse and public debate without censorship, America would likely be a very different place. “Freedom of Speech is the great Bulwark of Liberty; they prosper and die together.”[xi]

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 periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter @constitutionled.

[i] Robert Natelson, The Original Constitution; What it Actually Said and Meant.”Apis Books Colorado Springs, CO, p. 212.

[ii] https://en.wikipedia.org/wiki/G._K._Chesterton

[iii] William Blackstone, Commentaries on the Laws of England, 1769.

[iv] Montesquieu was the most oft-quoted political philosopher at the Constitutional Convention, after the Bible.

[v] Benjamin Franklin, On Freedom of Speech and the Press, Pennsylvania Gazette (17 November 1737).

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

[vii] https://www.archives.gov/education/lessons/sedition-case

[viii] https://www.law.cornell.edu/supremecourt/text/268/652

[ix] https://constitution.findlaw.com/amendment1/freedom-of-speech-for-corporations.html

[x] https://mtsu.edu/first-amendment/article/1022/symbolic-speech

[xi] Trenchard and Gordon, Cato’s Letters, February 4, 1720.

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Upholding the Principle of Amending the United States Constitution by the American People, Its Rightful Keepers

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Guest Essayist: Gary Porter

Article V of the United States Constitution describes that the only lawful methods, of amendment, are by its keepers, the American people. While that may have been the Framers’ intent, an unlawful method of amending the Constitution, through judicial activism, for example, usurps the legislative process of the American people when the courts are used as a legislature. Black’s Law Dictionary defines “judicial activism” as a “philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.”[1]

When the Supreme Court renders an opinion about a constitutional provision, that opinion–it is called an “opinion” and not a “law”–has traditionally assumed the status of the Constitution itself; since the Constitution is the Supreme Law of the Land (see Article VI), the American people and the federal government have given federal court opinions the same status: the law of the land. Nothing in the U.S. Constitution requires this, but that is the way America has operated as a people since the Constitution was ratified. Many distinguished men over the years have warned against this approach:

Thomas Jefferson: “[T]o consider the judges the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed and one which would place us under the despotism of an oligarchy.”

Andrew Jackson: “The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges.”

Abraham Lincoln: “[I]f the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court…the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”

Is the U.S. Constitution “Alive?”

President Woodrow Wilson is credited with originating the concept of a “Living Constitution,” the idea that the Constitution must constantly be updated to reflect changes in the culture and mores of an evolving society. Who best to guide the “evolution” of the Constitution but the legal “scientists” of the federal courts? Why go through the arduous process of amending the Constitution through Article V when the Supreme Court is willing to issue an opinion which will have the same effect as a desired amendment? The Supreme Court has often been viewed as the “legislature of last resort.” Policies which have failed to gain majority acceptance in the Legislative Branch, whether state or federal, are instead “enacted into law” by the Judiciary.

The Anti-federalist called “Brutus”[2] warned: the “power in the judicial, will enable them to mould the government, into almost any shape they please.”

James Madison mentioned in Federalist 51 that the Constitution requires the government “to control itself.”[3]

Congress last proposed an amendment to the Constitution fifty-two years ago, in 1971, the Twenty-sixth Amendment. Scores of proposed amendments are introduced in Congress each session; a handful may make it out of committee; none have achieved a two-thirds vote on the floor in either chamber, or both chambers, since 1971.

Article V of the United States Constitution, on amending the Constitution, states that when two-thirds (34) of the state legislatures apply to Congress for an amendment convention, Congress shall convene one. Nothing in the Constitution describes how such a convention must operate, or the threshold within the convention for approving amendment proposals before they are transmitted for ratification, but there is ample historical evidence showing how such conventions of the states operated during the founding period and model rules for such a convention have already been composed and tested.[4]

Consider next the alternatives to amending the Constitution through an Article V convention:

  • Wait on the Supreme Court to correct past errant rulings?
  • Wait on Congress to “start following the Constitution?” The 240 years of Supreme Court opinions and interpretations have removed most limitations on Congress’ authority.
  • Wait for Congress to proffer needful amendments? How likely is it that Congress will propose term limits on themselves, propose a balanced budget amendment, narrow the interpretation of general welfare or interstate commerce, propose repealing the Sixteenth and/or Seventeenth Amendments, or propose any amendment which results in a reduction of their jurisdiction or power?

The “Article V Question” is indeed controversial. Some opponents insist it will do more damage than good. Still, with arguments on both sides, correctly amending the Constitution remains in maintaining the principle that “the United States Constitution prescribes within the document the only lawful methods of amendment, by its keepers, the American people.”

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 periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter @constitutionled.

[1] As quoted in “Takings Clause Jurisprudence: Muddled, Perhaps; Judicial Activism, No” DF O’Scannlain, Geo. JL & Pub. Pol’y, 2002.

[2] The identity of Brutus is unknown, but scholars have suggested he was either Melancton Smith of New York or John Williams of Massachusetts. See: https://en.wikipedia.org/wiki/Brutus_(Antifederalist).

[3] James Madison, Federalist No. 51, 1788, read at: https://avalon.law.yale.edu/18th_century/fed51.asp.

[4] https://conventionofstates.com/videos/official-convention-of-states-historic-simulation-live.

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Principle of a United States Constitution Prescribing Within Itself the Only Lawful Methods of Amendments, by Its Keepers, the American People

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Guest Essayist: Gary Porter

Prior to achieving statehood in March 1791, the Republic of Vermont placed a provision in their 1786 State Constitution. Every seven years, the people would elect a 13-person Council of Censors who would examine whether: “the Constitution has been preserved inviolate in every part, during the last septenary (including the year of their service;) and whether the legislative and executive branches of government have performed their duty, as guardians of the people, or assumed to themselves, or exercised other or greater powers than they are entitled to by the Constitution: they are also to inquire, whether the public taxes have been justly laid and collected in all parts of this Commonwealth–in what manner the public monies have been disposed of–and whether the laws have been duly executed.”[i] This Council would: “recommend to the Legislature the repealing such laws as appear to them to have been enacted contrary to the principles of the Constitution; these powers they shall continue to have, for, and during the space of one year from the day of their election, and no longer. The said Council of Censors shall also have power to call a Convention, to meet within two years after their sitting, if there appears to them an absolute necessity of amending any article of this Constitution which may be defective–explaining such as may be thought not clearly expressed–and of adding such as are necessary for the preservation of the rights and happiness of the people; but the articles to be amended, and the amendments proposed and such articles as are proposed to be added or abolished, shall be promulgated at least six months before the day appointed for the election of such Convention, for the previous consideration of the people, that they may have an opportunity of instructing their delegates on the subject.” (Emphasis added)

Laying on land claimed by both New Hampshire, New York and, at times, Canada, Vermont finally became an independent republic on January 15, 1777. It called itself the State of Vermont but failed to receive recognition by any country until admitted to the union on March 4, 1791.[ii] Because of its independency, Vermont was not invited to the Constitutional Convention in 1787. If it had been invited, would these ideas of constitutional review and revision have made it into the United States Constitution? If the U.S. Constitution had contained such a provision, what sort of amendments might have been ratified over these 234 years (as of 2023). And over these years, would the Constitutional “Council of Censors” find, repeatedly, that the Constitution had not “been preserved inviolate in every part”?

Amendment Under the Articles of Confederation

One of the chief defects of the Articles of Confederation, found in Article XIII, reads in part: “nor shall any alteration at any time hereafter be made in any of [these Articles]; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.”[iii] (Emphasis added)

This requirement for unanimity among the states meant that the Articles would never be amended or otherwise improved. In his Vices of the Political System of the United States, James Madison’s “homework assignment” to himself, he fails to mention this flaw among the twelve “vices” he identifies; it could be that much of the “blame” for America’s moving to a new Constitution is due to this one defect. At the Constitutional Convention, Charles Pinckney said “it is to this unanimous consent [provision of the Articles], the depressed situation of the Union is undoubtedly owing. Had the measures recommended by Congress and assented to, some of them by eleven and others by twelve of the States, been carried into execution, how different would have been the complexion of Public Affairs? To this weak, this absurd part of the Government, may all our distresses be fairly attributed.”[iv]

In 1781, a proposal was made to amend the Articles of Confederation to give Congress the power to set an impost on goods. Rhode Island refused to approve the measure. As described in the notes of delegate James Madison, “[t]he small district of Rhode Island put a negative upon the collective wisdom of the continent.” Just as Rhode Island’s veto prevented the adoption of an impost in 1781, New York would be the sole state to obstruct a second impost attempt two years later.

Early in 1785, a Congressional committee recommended amending the Articles of Confederation to give Congress power over commerce. Congress sent the proposed amendment to the state legislatures; only a few states responded.

Later that year, in a letter to James Warren, George Washington, wrote:  “In a word, the confederation appears to me to be little more than a shadow without the substance;..Indeed it is one of the most extraordinary things …that we should confederate for National purposes, and yet be afraid to give the rulers of that nation… sufficient powers to order and direct the affairs of the same.”[v]

In 1786, Charles Pinckney proposed a revision of the Articles. A committee debated the proposal and recommended granting Congress power over both foreign and domestic commerce, and empowering Congress to collect money owed by the states. By now, convinced that at least one state would disagree, Congress never sent the measure to the states. Given this history, it appeared to the Constitutional Convention delegates that something less than unanimity was required to amend the new Constitution they had drafted.

Amendment at the Constitutional Convention

Item seventeen of the Virginia Plan, introduced in the “Grand Convention” on May 29, 1787, stated: “Resolved. that provision ought to be made for the amendment of the articles of Union, whensoever it shall seem necessary;” There  were many provisions of the Virginia Plan to discuss and debate. The delegates did not discuss a process of amendment until a month before the end of the convention.

The U.S. Constitution, Analysis and Interpretation website,[vi] provides this account of the debates over what became Article V of the new United States Constitution:

Alexander Hamilton … suggested that Congress, acting on its own initiative, should have the power to call a convention to propose amendments.[vii] In his view, Congress would perceive the need for amendments before the states.15 Roger Sherman took Hamilton’s proposal a step further, moving that Congress itself be authorized to propose amendments that would become part of the Constitution upon ratification by all of the states.16 James Wilson moved to modify Sherman’s proposal to require three-fourths of the states for ratification of an amendment.17 James Madison offered substitute language that permitted two-thirds of both houses of Congress to propose amendments, and required Congress to propose an amendment after two-thirds of the states had suggested one.18 This language passed unanimously.19

But on September 15, 1787, two days before the convention adjourned for the last time, Article V of the draft Constitution was again discussed. To that point, the approved wording gave all power to Congress to officially propose amendments, although the states could suggest them. Virginia’s George Mason rose and cautioned that: “No amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive (as Madison wrote in his notes), as he verily believed would be the case.” Gouverneur Morris and Elbridge Gerry then moved to require a convention on application of two-thirds of the states and the motion passed “nem: con:” (unanimously). And this provided the alternate method of proposing constitutional amendments: a convention of the states. But notice the rationale for this alternate method of amendment: should Congress become oppressive.

The process of amendment placed in Article V was further debated in the state ratifying conventions, the records of Massachusetts,[viii] North Carolina[ix] and Virginia[x] particularly recording the concerns of delegates. Some convention delegates, like Virginia’s Edmund Randolph, who refused to sign the Constitution, even called for an amending convention[xi] to be immediately convened to fix the “deficiencies” in the Constitution before they went into operation, which would make them harder to correct. Madison thought the idea dangerous. Randolph’s suggestion never gained momentum and the Constitution was ratified by Virginia on June 26, 1788, four days after New Hampshire’s ratification “sealed the deal” because it was the ninth state to ratify, the number of states required by the new Constitution. Less than a year later, the new national government went into operation.

Amending the Constitution – Correctly

Article V of the United States Constitution contains two methods of proposing amendments and two methods of ratifying amendments. Congress, with a two-thirds vote of both chambers, can propose an amendment for ratification by the states and the states themselves, in a convention called for that purpose, can propose amendments for ratification. Over America’s history, all 27 current amendments have been proposed by Congress, none by a convention of the states.

Ratification of a proposed amendment can also take two forms: ratification by three-fourths of the several state legislatures (38) or ratification by three-fourths of state conventions held for that purpose, Congress may “propose” either method. Over America’s history, the later method of ratification has been used only once, to ratify the Twenty-first Amendment.

As many as five thousand amendments have been proposed in Congress since the Constitution went into effect in 1789 and only twenty-seven survived the high hurdle of committee discussions/votes followed by super majority floor votes in both chambers.

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 periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter @constitutionled.

[i] https://press-pubs.uchicago.edu/founders/documents/a5s1.html.

[ii] It was Vermont’s admission to the Union which required ratification of the Bill of Rights by ten states versus the nine required to ratify the Constitution itself.

[iii] https://www.archives.gov/milestone-documents/articles-of-confederation.

[iv] Charles Pinckney, Observations on the Plan of Government Submitted to the Federal Convention of May 28, 1787, reprinted in 3 Farrand’s Records, supra note 1, at 120–21.

[v] https://press-pubs.uchicago.edu/founders/documents/v1ch5s9.html.

[vi] https://constitution.congress.gov/browse/essay/artV-2/ALDE_00013047/#ALDF_00017913

[vii] https://constitution.congress.gov/browse/essay/artV-2/ALDE_00013047/#ALDF_00017913

[viii] https://press-pubs.uchicago.edu/founders/documents/a5s7.html.

[ix] https://press-pubs.uchicago.edu/founders/documents/a5s10.html.

[x] https://press-pubs.uchicago.edu/founders/documents/a5s9.html.

[xi] https://press-pubs.uchicago.edu/founders/documents/a7s4.html.

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Principle of Secure Borders

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Guest Essayist: Kevin Portteus

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

Though the concept of national borders is rejected by many,[1] with some even denouncing the very idea of borders between nations as racist,[2] at both principled and practical levels, however, secure borders are not only defensible, but essential.

More than any other single concept, the foundational principle of the American regime is the principle of natural equality. “That all men are created equal” is the first of the “self-evident truths” proclaimed in the Declaration of Independence. In his 1791 Lectures on Law, James Wilson explains that this equality does not extend to “to their virtues, their talents, their dispositions, or their acquirements,” but only that “the natural rights and duties of man belong equally to all.”[3] This equality of rights originates in “the Laws of Nature and of Nature’s God”: it is inherent in our humanity, and not dependent on any regime or government.

The political corollary of the equality principle is the principle of government by consent. Abraham Lincoln describes this as “the sheet anchor of American republicanism” and “our ancient faith.”[4] Precisely because all men are created equal, no man has the right to govern any other man, without that other’s consent. No one is inherently superior to anyone else in his right to govern. All legitimate political relationships between equal human beings must be on the basis of consent.

This principle of consent is directly applicable to immigration and border security. If borders are insecure, then people may enter into a country, without the consent of those who already comprise that country. It would be as if a homeowner had no right to prevent random people from simply walking in the front door, plopping themselves down on the couch, and claiming to live there now. A property owner has a right to control ingress into his property. A nation is the collective property of its citizens, who have consented to live with each other. If a random person could force himself on the people of a country, without their consent, then that is not a relationship of equals. It is instead tyranny.

Not only is a nation without secure borders subject to the arbitrary whim of whomever may choose to impose himself upon it, that nation also has no control over what comes across its borders. There is overwhelming evidence that huge quantities of illegal narcotics, such as fentanyl, have been pouring across America’s porous southern border.[5] Other problems are known to occur such as increased rates of diseases like polio and tuberculosis.[6] Finally, an insecure border is an invitation to engage in international human trafficking, and the practice is epidemic at the US-Mexico border.[7]  In short, a nation, which does not have secure borders, is not really a sovereign nation at all.

The power to protect the integrity of America’s borders is embedded in the United States Constitution in at least two places.  First, Article I, Section 8 states that Congress “shall have power…to define and punish…Offences against the Law of Nations.” Borders, and migration of non-citizens across those borders, were understood by America’s Founders to be a law of nations issue and are thus covered by this clause. Second, Article I, Section 9, the infamous “Importation Clause,” creates a “negative pregnant,” implying that in the absence of one very specific set of conditions, Congress may regulate “migration” into the United States, not just the “importation” of enslaved persons[8] as was being addressed by the Founders at the time of writing the Constitution. They wanted to continually reduce and end the scourge of slavery in the United States while preserving the Union and without fomenting war between the states over controversial issues.

With this understanding by the Founders, how would it be possible to maintain what makes America its own nation able to self-govern apart from any dictatorships that could take hold? As President, John Adams wrote “Our Constitution was made only for a moral and religious People. It is wholly inadequate to the government of any other.”[9] meaning that the nation of Americans possesses a specifically chosen cultural infrastructure, and the American people have historically adopted certain moral values, that make its system of constitutional self-government possible. This system, in turn, makes it possible for Americans to enjoy their natural rights. Other peoples, and other cultures, antithetical to that system of government, are thus a mortal threat to America’s political system and way of life, and Jefferson cautioned against a mass influx of peoples with opposing cultures and values, to those of America’s, in Notes on the State of Virginia.[10]

The ultimate tendency of the obliteration of borders is the obliteration of the very idea of sovereign nations. In Federalist 10, James Madison argues for the viability and desirability of a large republic, but even this has its limits.[11] The limits of communication and transportation cannot be completely overcome, and there’s more to a self-governing political society than that. The competing interests of society must have something to unite them; Madison also notes in Federalist 10 that “justice ought to hold the balance between them.” In order to constitute a true political society, a regime, they must share something fundamental, which Aristotle at the outset of The Politics calls the “good.”[12]

The natural and inherent differences in people’s thinking about ideas such as what is good and just means that the peoples of the world will never agree on them perfectly, and they can thus never come together into one regime on principles of justice. The result will either be tyranny or anarchy, as philosophers as diverse as Leo Strauss and John Rawls have noted.[13] The destruction of sovereign nations does not signify the dawn of universal justice; it rather heralds the establishment of universal tyranny.

Secure borders, then, are a necessary precondition of liberty and self-government. It allows us to distinguish between those who are members of our political community, and those who are not. It allows people who share conceptions of justice and the good to congregate into one political community and govern themselves according to those conceptions. Secure borders allow Americans to preserve the cultural infrastructure that makes the United States’ version of free self-government possible. The concept of secure borders is embedded in both American principles and constitutionalism. The destruction of secure borders would be a catastrophe for the American republic.

Kevin Portteus is Professor of Politics, Director of American Studies, and the Lawrence Fertig Chair in Politics at Hillsdale College.

 

[1] https://rooseveltinstitute.org/wp-content/uploads/2022/08/RI_TheStatueofLibertyPlan_Report_202208.pdf (accessed August 4, 2023); https://nymag.com/intelligencer/2019/04/this-is-the-immigration-policy-liberals-want.html (accessed August 4, 2023); Alex Nowrasteh, Open Immigration: Yea, in Alex Nowrasteh and Mark Kirkorian, Open Immigration: Yea & Nay (New York: Encounter Books, 2014).

[2] https://www.npr.org/2021/09/30/1041623709/the-racist-legacy-of-early-immigration-law-is-still-alive-today (accessed August 4, 2023); https://thenevadaindependent.com/article/nevada-judge-says-immigration-law-making-reentry-a-felony-is-unconstitutional-has-racist-origins (accessed August 4, 2023).

[3] https://press-pubs.uchicago.edu/founders/documents/v1ch15s48.html (accessed July 30, 2023).

[4] https://teachingamericanhistory.org/document/speech-on-the-kansas-nebraska-act-at-peoria-illinois-abridged/ (accessed July 31, 2023).

[5] https://www.nbcnews.com/politics/immigration/fentanyl-seizures-u-s-southern-border-rise-dramatically-n1272676 (accessed July 31, 2023).

[6] https://nypost.com/2023/04/18/bidens-open-borders-are-bringing-contagious-diseases-to-your-neighborhood/ (accessed July 31, 2023).

[7] https://www.nytimes.com/2022/07/25/us/migrant-smuggling-evolution.html (accessed July 31, 2023); https://www.npr.org/2021/04/24/990150761/human-smugglers-bypass-border-patrol-bedeviling-sheriffs-and-ranchers-in-south-t (accessed July 31, 2023); https://www.washingtonexaminer.com/opinion/op-eds/trouble-at-the-border-is-fueling-human-trafficking (accessed July 31, 2023).

[8] https://www.journals.uchicago.edu/doi/10.1086/705604 (accessed July 31, 2023).

[9] https://founders.archives.gov/documents/Adams/99-02-02-3102 (accessed July 31, 2023).

[10] https://vindicatingthefounders.com/library/notes-on-virginia-8.html (accessed July 31, 2023).

[11] https://founders.archives.gov/documents/Madison/01-10-02-0178 (accessed August 4, 2023).

[12] Aristotle, The Politics, book 1, chapter 1 (1252a1-3).

[13] G. P. Grant, “Tyranny and Wisdom: A comment on the Controversy Between Leo Strauss and Alexandre Kojeve”, Social Research 31, no. 1 (spring 1964): 45-72; John Rawls, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999), 36.

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Principle of Distinguishing Between Purpose of Federal, and Governments of the States: Maintaining the Union While Preventing Federal Encroachments on the States and Individual Americans

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Guest Essayist: Amanda Hughes

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

Though we might give to such a government certain powers with safety, yet to give them the full and unlimited powers of taxation and the national forces would be to establish a despotism, the definition of which is, a government in which all power is concentrated in a single body. To take the old Confederation, and fashion it upon these principles, would be establishing a power which would destroy the liberties of the people… It was seen that the necessary powers were too great to be trusted to a single body; they, therefore, formed two branches, and divided the powers, that each might be a check upon the other…The State governments possess inherent advantages, which will ever give them an influence and ascendency over the National Government, and will for ever preclude the possibility of federal encroachments. That their liberties, indeed, can be subverted by the federal head, is repugnant to every rule of political calculation. – Alexander Hamilton in a speech, Compromises of the Constitution, June 20, 1788 during the New York Ratifying Convention.

On federal-state confrontation, Hamilton—an aide to General George Washington during the American Revolution and then our first Secretary of the Treasury— in speaking on this topic quoted above, as he argued for the ratification of the United States Constitution: “We might give to such a government certain powers,” he said of the proposed federal government, and yet, he continued, “to give them the full and unlimited powers of taxation and the national forces would be to establish a despotism . . . establishing a power which would destroy the liberties of the people.” Hamilton wanted the states and their people to have power, too, as a counterweight to the danger of federal usurpation. These warnings note that liberty can be destroyed through abrupt or gradual means either by a domestic tyrant or if a foreign force overwhelms it. Hamilton had the answer for both: “The State governments possess inherent advantages, which will ever give them an influence and ascendency over the National Government, and will for ever preclude the possibility of federal encroachments.”

Hamilton made it plain he sympathized with the states: “That their liberties, indeed, can be subverted by the federal head, is repugnant to every rule of political calculation.” In other words, keep the states intact, as a bulwark of freedom for themselves, and as a bulwark against national impingement. This is part of the genius of the Constitution: for every legitimate power, there’s a legitimate counter-power.

As an entity intended to be indestructible, each state has a right, and a duty, to ensure its own integrity and survival. For example, the federal government leads the national defense, but if it won’t, the states must act. For example, one of the state constitutions declares, “Texas is a free and independent State, subject only to the Constitution of the United States, and the maintenance of our free institutions and the perpetuity of the Union depend upon the preservation of the right of local self-government, unimpaired to all the States.”

Additionally, if the federal government attempts to centralize, for example, law enforcement, education, differing circumstances affecting city or county funding or regulatory needs from state to state, then local control can be usurped of its most basic foundations for maintaining self-government and accountability. Through state constitutions, state legislatures, city and town councils, civil systems closest to the people are enabled to uphold Americans in charge of their own governing.

Along with Founders such as Hamilton, others later in American history learned the importance of state sovereignty which meant local control and self-governing. For instance, Salmon P. Chase appointed by President Abraham Lincoln in 1864 as Chief Justice of the United States, in 1869, Chase opined on behalf of the Court, “The Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States.” So how, precisely, does the indestructible Union interact with the indestructible States? That is a question each generation of Americans must carefully discern through the study of history.

America’s Founders, and Framers of the Declaration of Independence and Constitution knew the dangers of centralized government that easily usurped the local decision-making process. From the study of world history, they understood this well leading up to what would be contained in the words of the Declaration of Independence, and fought for in the American Revolutionary War. Though they did not want war, they were willing to do so for independence. They discussed through meeting together, writing letters, pamphlets and newspaper articles about how freedom is not free and that the steps to gain independence would be slow and difficult, but worth it. They understood how a government distant from the people could easily turn into a tyrannical dictatorship of top-down control. From the perspective of America’s Founders, Framers of the Declaration of Independence, and eventually the United States Constitution, it was far better to protect local decision-making that would not remove self-governing from the people than to allow centralization of government to take root. This was the importance they saw in limiting the federal government and ensuring liberty of the states and localities of America.

This understanding was more stark to them each day of work it took to gain their independence from Great Britain and eventually form a different type of government. Samuel Adams emphasized this importance after the Second Continental Congress adopted the Declaration of Independence July 4, 1776. Then a little over a week later the Articles of Confederation were presented on July 12 that would serve as a constitution to get the new nation’s government started. In his speech “On American Independence” on August 1, 1776, Adams stated: “Our Union is now complete; our Constitution composed, established, and approved. You are now the guardians of your own liberties. We may justly address you as the decemviri did the Romans, and say: ‘Nothing that we propose can pass into a law without your consent. Be yourselves, O Americans, the authors of those laws on which your happiness depends.’”

The ideas that animated the debate over the United States Constitution nearly a quarter-millennium ago are as alive today as today’s headlines. The principle of distinguishing between the purpose of federal and state governments cannot be overstated. Maintaining the Union through preventing federal encroachments on the states and individual Americans is vital to the foundation of self-governing and independence. Legal and political issues that threaten the ability of the states to maintain local control continually prove the Constitution so relevant and urgent for American citizens to understand and apply.

Amanda Hughes serves as 90-Day Study Director for Constituting America. She is author of a book on faith and voting, Who Wants to Be Free? (WestBow Press). She is a story contributor for the anthologies Loving Moments and Moments with Billy Graham (Grace Publishing). She served as editor of her father’s book, Adventures, Wit & Wisdom: The Life & Times of Charlie Hughes (WestBow Press). Amanda received her B.A. from Texas State University and her M.A. from Southwestern Baptist Theological Seminary.

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Principle of Free Thought and Speech, a Core Component of a Self-Governing People

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Guest Essayist: Tony Williams
Independence Hall, Philadelphia, Pennsylvania

“The freedom of speech is a principal Pillar in a free Government: when this support is taken away the Constitution is dissolved, and Tyranny is erected on its Ruins.” – Pennsylvania Gazette, November 17, 1737, printed by Benjamin Franklin, later reprinted in the Barbados Gazette, 1738, and attributed to Pennsylvania Lawyer and Pennsylvania Colonial Representative as having possibly been the author of the article.

The Declaration of Independence asserts the self-evident truth that all human beings are created equal and endowed with natural rights. The Declaration then states that governments are established with the purpose of protecting those rights with the consent of the governed. This Lockean conception of social compact theory supported a representative government in the American republic.

The concept of consensual government naturally supported the idea of freedom of speech. While the nature of free speech differed from America’s modern conception, the principle of political free speech was fundamental to a republican form of government and self-governing society. Expressing political opinions in speech and in print, engaging in hearty debate and deliberation, and giving consent to representatives in legislatures were all essential for self-governance.

In The Federalist No. 51, James Madison wrote, “In republican government, the legislative authority necessarily predominates.” As the first branch of government, Congress most embodied the principle of self-government and representation. The legislative branch, both in Congress and the state legislatures, was the center of deliberation, debate, and consensus.

Indeed, the American founding experienced great deliberative moments that represented profound moments of reflection and discussion. These debates demonstrate the importance of free speech to exchange political viewpoints in a free society. In each case, they show that free debate of clashing viewpoints can result in the common good. For example, the members of the Second Continental Congress were unsure or even opposed to independence in early 1776. A vigorous debate occurred in which both sides of the issue sought to persuade the other. Eventually, the Congress unanimously agreed to independence.

During 1787-1788, the great deliberative moment of making and ratifying the United States Constitution witnessed robust debates between the Federalists and Anti-federalists over the principles of human nature and government. The debates took place in the secret Philadelphia convention, but the vigorous conversation moved into state ratifying conventions, newspapers and pamphlets, private letters, and taverns.

In the early republic, the George Washington presidential administration had its share of highly partisan and contentious debates. The debates over Secretary of the Treasury Alexander Hamilton’s financial plans and the crafting of American foreign policy were rooted in constitutionalism and establishing the right precedents for the new government as prescribed in the new Constitution. These deliberations could be offensive and personal, but they were also deeply rooted in constitutionalism as both sides took the document seriously.

In all of these debates, the key principle was the element of free speech. The representatives and the people freely asserted their views about the best ways to achieve good government. They may have often had rival conceptions of the public good, but they built consensus through sharing and debating those ideas, listening to the arguments of the other side, and trying to persuade others of a reasonable viewpoint. For these reasons, holding to the first principle of free speech and thought has always been a core component of a self-governing people.

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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Principle of Freedom of Association, Undissolved and Unweakened, Either to Associate or Not, and Neither under Coercion nor Force

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Guest Essayist: George Landrith

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

“…there must be Associations of Men of unshaken Fortitude. A general Dissolution of Principles & Manners will more surely overthrow the Liberties of America than the whole Force of the Common Enemy.” – Samuel Adams, in a letter to James Warren, Philadelphia, February 12, 1779.

The Bill of Rights doesn’t grant or create rights, but it does outline and protect rights. Our nation’s Founders believed that rights were given to us by our Creator. But they also believed that the proper role of government was to protect God-given rights. The freedom of association is a fundamental right of a free people. The First Amendment lays out the basis for the freedom of association — which simply means we have the right to associate with like-minded people, if we choose to.

The First Amendment explicitly protects religious freedom, freedom of speech and of the press, the right to assemble peacefully, and to petition the government to remedy injustice. While the phrase “freedom of association” does not appear in the United States Constitution, the right is wrapped up in the ideas of freedom of speech, the right to peacefully assemble, and the right to petition our government as well as the Due Process Clause of the Fourteenth Amendment.

It is important to remember that the Bill of Rights was never intended to list every God-given right that we have. The Ninth Amendment explicitly states this point — “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Likewise, in some ways the Bill of Rights is more a list of limits on the power of government than it is a list of rights. For example, the First Amendment states “Congress shall make no law ….” The Second Amendment says that the right of the people “shall not be infringed.” The Fourth Amendment says that “the right of the people … shall not be violated….” The Eighth Amendment prohibits government from imposing cruel and unusual punishments and excessive bail and fines.

If the Bill of Rights had been intended by our Founders to be a complete and comprehensive list of every God-given right that we had, it would have been much, much longer. The issues raised in the Bill of Rights were things that the Founders had experience with. They had seen the British crown mandate religious practices, limit speech, destroy presses that published disfavored ideas, and try to confiscate American guns. They had also seen Redcoats terrorize Americans, searching and destroying their homes and businesses without due process. They had also seen throughout history a number of abuses by other overbearing and unjust governments. So the Bill of Rights was only a partial listing of the rights that history had taught them were most likely to be abridged by a tyrannical government.

America’s Founders did speak specifically of the freedom of association. Samuel Adams was an ardent patriot, an influential leader of the movement for American Independence, and a cousin of John Adams. In a letter dated February 12, 1779, to James Warren — a fellow advocate for American independence and a Major General in George Washington’s Continental Army — Sam Adams wrote “…there must be Associations of Men of unshaken Fortitude. A general Dissolution of Principles and Manners will more surely overthrow the Liberties of America than the whole Force of the Common Enemy.”

It makes perfect sense that America’s Founders would see the freedom of association as foundational to a free society. They had gathered together and worked together to promote American independence. And the British Crown had attempted to make those associations a criminal activity. America’s Founders understood that they would have to associate and work with other Americans who shared their desire for independence. The British attempt to deny them the right to associate with like-minded Americans was simply an attempt to silence them and prevent them from petitioning the government for redress of their grievances. And only after years of presenting their grievances and being entirely rebuffed did they finally decide to declare their independence.

A logical extension of the rights of free speech and the right to peacefully assemble is the freedom of association. So while the actual words “freedom of association” do not appear in our Bill of Rights, the principle of freedom of association is clearly intended by our Founders and the United States Constitution. If you only have the freedom of speech as an individual, but cannot align yourself with others who share your views, that would give government the power to limit your ability to effectively speak your mind or petition the government.

Likewise, freedom of association includes the right for a group or association to establish its own rules for governing the internal affairs of the group. Imagine if government could regulate political parties or issues-based groups and how they operate. If government had this power it could effectively stifle a political group’s ability to petition the government or to speak out on policies that it supports or opposes.

Freedom of association also includes the freedom to not associate. An example of unwanted association is when a group tries to force employees to contribute to spending on ideological or political issues that employees may disagree with. The point is that government should not be requiring people to associate or preventing them from associating. In a free society, people get to decide what groups they agree with and which ones they disagree with and to either associate or not to associate based on their own determination — not government mandates.

We have a wide variety of possible associations — family, friends, neighbors, schools, the workplace, clubs, political parties, issue-based groups, etc. Not all are voluntary — for example, we are typically born into a family, we don’t choose the family we belong to. But once we become adults, we do choose how closely we want to align with and associate with our family. Likewise, young children don’t really choose to attend school or even a particular class.

But by the time we are adults, our associations are by choice — the church we go to or don’t go to, the job that we choose to pursue, and the clubs or organizations that we join or support. In a free society, government ought not be dictating what friendships, memberships, or groups we must maintain or support, and alternatively those which we must avoid or spurn. And government should not impose rules upon groups which discourage membership or punish those who align with the group.

In 1958, in NAACP v. Alabama, the Supreme Court unanimously held that the freedom to associate was part and parcel of free speech and peaceable assembly and that it also flowed from the Due Process Clause of the Fourteenth Amendment. The case involved the State of Alabama trying to deny the NAACP the right to operate within the state unless the organization fully disclosed its membership and donor lists.

The NAACP was concerned that such disclosure could be used to harass its members and would significantly limit its ability to align with Americans who supported civil rights and equal rights for all citizens. The U.S. Supreme Court unanimously held that the freedom to associate was part of the ability to engage in free speech and to peacefully assemble and that advancing your beliefs through association with like-minded people was an inseparable part of the Bill of Rights and the Due Process Clause of the Fourteenth Amendment.

Freedom of association is part of American life since the nation’s earliest days. We even associate with other Americans via social media. It is instructive that totalitarian regimes like North Korea, China and Iran outlaw free association. If you’re spotted visiting or dining with the wrong people, these regimes will punish you. If you attend religious services, or have friends who attend such services or have friends who are known to support reforms, you will be punished.

Even China’s social credit program is designed to enforce a mechanism that requires its populace to maintain only those relationships that are approved of by the government. No free society can tolerate a government that believes it has the power or authority to dictate associations in this fashion.

America’s Founders wisely understood that a free people must have the right to think for themselves, to speak freely, to petition their government without reprisals, to create associations to further their beliefs and leverage their speech, and to work individually or in association with others for policy reforms. The nation of America has been blessed that its Founders recognized this important fundamental right of freedom of association.

If America hopes to continue to be a free people, then we must continue to embrace and defend free speech, freedom of the press, freedom of conscience, the right to petition the government and the freedom of association. These freedoms are foundational elements of self-determination.

George Landrith is the President of Frontiers of Freedom.

 

 

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Principle of Constitutional Limits on the United States Government To Tax

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Guest Essayist: Tony Williams

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

“How then will it be possible, under these circumstances, to endure this Tax which is laid upon us by Parliament? –Add to this, that it will drain the Province of the little Cash left among us, which at present barely serves for a Medium of Trade…And if you should be active in bringing this Tax upon yourselves, at it will inevitably destroy our constitutional Privileges, so it will perpetuate to the latest Posterity, a most despicable Opinion of the civil Principles of their Ancestors…But should your Representatives be instructed by you, (which God forbid!) by a solemn and public Act to promote the Operation of this Law, you will implicitly declare that you resign that inestimable Right; and, in Consequence of such Resignation, you may next expect a Tax on your Lands; and after that one Burthen on the Back of another, till you are reduced to a State of the most abject Poverty…The Effects I presage are dreaded far and wide. –Would to God our Terror was merely panic, and that the Disagreeableness of the Act arose only from its Novelty. –But our Fears are founded on Reason and universal Experience…Consider gentlemen, that the least infraction of your Liberties is a Prelude to Encroachments…Indolence –Indolence has been the Source of irretrievable Ruin –Languor and Timidity, when the Public is concerned, are the origin of Evils mighty and innumerable” –A letter authored only using the initials W.B. “To the Inhabitants of the Province of the Massachusetts-Bay,” concerning the Stamp Act, appeared in The Boston-Gazette and Country Journal, October 7, 1765.

In 1765, the Stamp Act ignited a storm of protest and led to a series of events that sparked a revolution of the American colonies against Great Britain. The dreaded act was a British tax on colonial stamps on newspapers, legal documents, and playing cards among other items. The taxes provoked a strong reaction against the colonists who raised cries that they were being taxed without representation in Parliament.

The colonists resorted to several different forms of protest to the taxes. At first, they petitioned the king and Parliament claiming their constitutional liberties as Englishmen and their natural rights. Soon after learning of the impending taxes, in December 1764, the Virginia House of Burgesses was the first to level a protest and sent a petition stating that, “The people are not subject to any taxes but such are laid on them by their own consent.”

In addition, colonists formed mobs that intimidated and coerced the Stamp Act collectors into not collecting the tax and resigning their offices. Some were threatened with violence, others were burned in effigy, and one was frighteningly buried alive until he relented. Other acts of violence erupted, with Boston mobs tearing down the Stamp collector’s office and vandalizing and plundering the home of Lieutenant Governor Thomas Hutchinson.

The colonists also began to demonstrate a sense of common identity and unity when nine colonies agreed to meet at the Stamp Act Congress in New York. After their deliberations, the delegates agreed to a declaration of rights asserting their fundamental liberties. Foremost among these was the right not to be taxed without their consent. “It is inseparably essential to the freedom of a people, and the undoubted right of Englishmen, that no taxes be imposed on them, but with their own consent, given personally, or by their representatives.”

British merchants were devastated financially by the colonial boycotts of British goods. They petitioned the king and Parliament for relief and eventually found it when Parliament revoked the Stamp Act Taxes. However, the Parliament also passed the Declaratory Act, which affirmed that principle that the body could legislate and tax the colonists in “any case whatsoever.”

The clashing perspectives of the colonists and British showed a fundamental disagreement over taxation and the powers of government. The parliamentary assertion of unlimited authority to govern the colonies led to additional attempts to tax the colonists, who predictably stood by the principle of no taxation without consent and resisted the taxes.

In 1767, Parliament passed the Townshend Acts which were a tax on a variety of items including glass, paint, paper, and tea. The colonists again resolved not to import British goods, which dried up trade between Great Britain and her colonies. Parliament relented and revoked the taxes but soon passed the Tea Act which collected three pennies per pound.

While it might seem like a trifling amount, Virginian George Washington explained that it was the principle that was at stake rather than the money. “What is it we are contending against? Is it paying the duty of 3d. per pound on tea because burdensome? No, it is the right only…as Englishmen, we could not be deprived of this essential and valuable part of our Constitution.”

The Boston Tea Party in late 1773 was the clearest expression of colonial opposition to being taxed without consent. The British retaliated harshly with the Coercive Acts shutting down the Port of Boston, banning town meetings and self-government, and allowing British colonial officials to escape American justice. This course led to the First Continental Congress and the first shots of the war being fired at Lexington and Concord. One of the grievances of the Declaration of Independence was “imposing Taxes on us without our Consent.”

During the war and after, however, the opposition to central authority provoked by resistance to British tyranny meant that one of the problems in the new nation was the inability to tax and collect adequate revenue. During the period, the Continental and Confederation Congress relied primarily on requisitions to the states for taxes, which were frequently ignored. Meanwhile, the states and national government were burdened by large war debts. The national government under the Articles of Confederation was especially unable to pay it off or use revenue to pay for armies to suppress internal rebellions such as Shays’ Rebellion.

Article I of the new United States Constitution empowered the Congress to pass taxes with the consent of the people through their elected representatives. Article I, section 8 stated: “The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States.”

However, because of the fear that the Senate might form a corrupt cabal with the executive branch, and because the House of Representatives was the only popularly-elected branch of government and was closest to the people, any bills in Congress for taxes had to start in the House. Article I, section 7 states, “All Bills for raising revenue shall originate in the House of Representatives.”

Taxation in the United States was often controversial from the tariff and protective tariff in the nineteenth century to the escalating tax rates to fund a growing federal government in the twentieth and twenty-first centuries. The ideals of the American founding continued to shape American concerns and fears of centralized government and taxation. Supreme Court Chief Justice John Marshall asserted in McCulloch v. Maryland (1819) that, “The power to tax involves the power to destroy.” Americans have believed since the founding that a government that taxes too much destroys liberty.

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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Principle of a Nation’s Longevity Upon Consisting of Public and Private Virtue

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Guest Essayist: Joerg Knipprath
Signing the Mayflower Compact 1620, a painting by Jean Leon Gerome Ferrishttps://en.wikipedia.org/wiki/Mayflower_Compact

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

Religious freedom, assembling, speaking freely and defending the nation’s liberty. “While the People are virtuous they cannot be subdued; but when once they lose their Virtue they will be ready to surrender their Liberties to the first external or internal Invader. How necessary then is it for those who are determind to transmit the Blessings of Liberty as a fair Inheritance to Posterity, to associate on publick Principles in Support of publick Virtue. I do verily believe, and I may say it inter Nos, that the Principles & Manners of New England produced that Spirit which finally has establishd the Independence of America; and Nothing but opposite Principles and Manners can overthrow it.” – Samuel Adams, in a letter to James Warren, Philadelphia, February 12, 1779.

In A Defence of the Constitutions of Government of the United States, John Adams mused about a lengthy quote from Aristotle’s Politics. There, Aristotle extols the benefits of a polis controlled by a broad middle class and warns of the danger to societies if the number of the middle class dwindles. His assessment of the best practical political system is consistent with what is called the “Golden Mean,” a concept taken from Aristotle’s Nicomachean Ethics. For the most part, excellence of the soul—virtue—lies in taking a path between two extremes that are vices. Another key element of classical Greek philosophy was that excellence of the person and of the state were intimately connected, that the polis was the soul writ large, so the analogy of the benefits of moderation for the individual to the benefits of middle-class government for the state was obvious.

It is worth quoting Aristotle at length on this point, as Adams did:

“In every city the people are divided into three sorts, the very rich, the very poor, and the middle sort. If it is admitted that the medium is the best, it follows that, even in point of fortune, a mediocrity is preferable. The middle state is most compliant to reason. Those who are very beautiful, or strong, or noble, or rich, or, on the contrary, those who are very poor, weak, or mean, with difficulty obey reason.… A city composed only of the rich and the poor, consists but of masters and slaves, not freemen; where one party despise, and the other hate; where there is no possibility of friendship, or political community, which supposes affection. It is the genius of a free city to be composed, as much as possible, of equals; and equality will be best preserved when the greatest part of the inhabitants are in the middle state. These will be best assured of safety as well as equality; they will not covet nor steal, as the poor do, what belongs to the rich; nor will what they have be coveted or stolen; without plotting against any one, or having any one plot against them, they will live free from danger. For which reason, Phocylides wisely wishes for the middle state, as being most productive of happiness. It is plain then that the most perfect community must be among those who are in the middle rank; and those states are best instituted, wherein these are a larger and more respectable part, if possible, than both the other; or, if that cannot be, at least than either of them separate; so that, being thrown into the balance, it may prevent either scale from preponderating. It is, therefore, the greatest happiness which the citizen can enjoy, to possess a moderate and convenient fortune. When some possess too much, and others nothing at all, the government must either be in the hands of the meanest rabble, or else a pure oligarchy. The middle state is best, as being least liable to those seditions and insurrections which disturb the community; and for the same reason extensive governments are least liable to these inconveniences; for there those in the middle state are very numerous; whereas, in small ones, it is easy to pass to the two extremes, so as hardly to have any medium remaining, but the one half rich, and the other poor. We ought to consider, as a proof of this, that the best lawgivers were those in the middle rank of life, among whom was Solon, as is evident from his poems, and Lycurgus, for he was not a king; and Charondas, and, indeed, most others. Hence, so many free states have changed either to democracies or oligarchies; for whenever the number of those in the middle state has been too small, those who were the more numerous, whether the rich or the poor, always overpowered them, and assumed to themselves the administration. When, in consequence of their disputes and quarrels with each other, either the rich get the better of the poor, or the poor of the rich, neither of them will establish a free state, but, as a record of their victory, will form one which inclines to their own principles, either a democracy or an oligarchy….”

This critique of pure oligarchic or democratic systems has been summed up as the unwelcome prospect of the rich stealing from the poor in the former, and the poor stealing from the rich in the latter.

Adams quoted this passage with approbation, but occasionally expressed opinions which seemed to be at odds with Aristotle’s political theory. Aristotle proposed a mixed government (mikte) as the most stable and conducive to human flourishing. The mixed government would not be democratic or oligarchic but would have elements of both in a mediated balance, such as in Athens, where the popular Assembly was balanced by the Council of 500 and its steering committee. Adams’s own work in drafting the Massachusetts Constitution of 1780 incorporated a similar bicameral structure in a Senate and a House of Representatives, with qualification for election to the former requiring ownership of an estate three times the value of property needed for election to the latter. But he also put in place a further structure of separation and balance of powers among the three branches of government, explicitly affirmed in Article XXX of that constitution, so that “it may be a government of laws and not of men.”

Aristotle’s description of the instability of pure systems such as oligarchy and democracy was not new with him. Plato and other Greeks had done likewise. American writers had similar misgivings. James Madison addressed such instability in his writings in The Federalist, especially in his discussion of factions in essay No. 10. Aristotle’s observation that “extensive governments are least liable to these inconveniences; for there those in the middle state are very numerous; whereas, in small ones, it is easy to pass to the two extremes, so as hardly to have any medium remaining, but the one half rich, and the other poor,” sounds remarkably like Madison’s defense of the national government.

Factions are the result of the inevitable inequality of rights in property which proceeds from the natural inequality of talents. “Those who hold, and those who are without property, have ever formed distinct interests in society.” Moreover, because of the inherent nature of democracies, where a small number of citizens conducts the government in person, those factions are most likely to become entrenched, with the stronger party sacrificing the weaker. “Hence it is, that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security, or the rights of property; and have, in general, been as short in their lives, as they have been violent in their deaths.” This remark might as well have been a summary of Athenian politics. Again, Aristotle’s observation, “When, in consequence of their disputes and quarrels with each other, either the rich get the better of the poor, or the poor of the rich, neither of them will establish a free state,” matches Madison’s critique.

The instability and short survival of democracies carried over to other small political entities.

“The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing the majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plan of oppression….[T]he same advantage, which a republic has over a democracy, in controling the effects of faction, is enjoyed by a large over a small republic…is enjoyed by the union over the states composing it.”

Specifically,

“…a religious sect may degenerate into a political faction in a part of the confederacy; but the variety of sects dispersed over the entire face of it, must secure the national councils against any danger from that source: a rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the union, than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district than an entire state.”

Samuel Adams’s letter to James Warren quoted in the introduction to this essay tied stable government and individual liberty to virtue and bound private and public virtue to each other. This emphasis on the interdependent virtue of the citizen and of the society was the essence of classical republicanism and a fundamental concept in the political philosophy of Greek and Roman writers. Moreover, Adams confided to his fellow New Englander that it was the “Principles & Manners” of that region which produced the spirit of liberty that fueled the drive to American independence. In the views of many New Englanders, especially Samuel’s cousin John Adams, widely-distributed land ownership of medium size lay at the heart of developing those New England principles that allowed for private and public virtue to take root.

In that letter to Warren, Adams also echoed Aristotle’s identification of a free city with a large middle class, whose ownership of a moderate estate made them most receptive to governance based on reason. Government by reason is analogous to the exercise of public or civic virtue and is most conducive to happiness (eudaimonia). When Aristotle declares, “It is plain then that the most perfect community must be among those who are in the middle rank,” he is associating excellence of government with a middle-class society. Excellence was arete in Greek. In Rome, the Latin translation became virtus and denoted a particular type of attribute and action that connected private character and public conduct.

The inevitable link between widespread property ownership of land, a virtuous citizenry, liberty, and survival of republican government was a common theme outside New England, as well. Although property ownership in the South was somewhat more complex due to the existence of the planter class in the Tidewater regions, other regions of the area still had a large class of yeoman farmers with moderate estates. Two of the most prominent advocates of Southern agrarian republicanism were Thomas Jefferson and John Taylor. Jefferson sought to realize his idealized virtuous republic of artisans and yeoman farmers politically through his promotion of land sales in the Old Northwest and the acquisition of Louisiana. Taylor’s writings on land ownership, virtue, liberty, and republican institutions brought systematic cohesion to agrarian republicanism and tied its principles to contentious issues of public policy.

But faith in a virtuous middle class as the source of personal liberty and political stability was not blind. Various writers, including John Adams in 1776, expressed reservations about the capacity of Americans to acquire the virtue necessary for self-government. New Englanders’ faith in their virtue and their fitness for republican government was shaken severely by the tax rebellion of Daniel Shays and his followers in 1786. Perhaps such virtue was not possible without a strong hand of government to correct deviations. More Americans were forced to confront that issue during and after the Whiskey Tax Rebellion in Pennsylvania from 1791 to 1794. After all, in both scenarios, the challenge to the republican governments had come from yeoman farmers, the supposed embodiments of republican virtue.

Southern agrarians had always been more skeptical that there was sufficient virtue among politicians to maintain republican government. Their experience with the turbulence and corruption of state governments after independence only confirmed their doubts. Madison expressed that sentiment in essay No. 51 of The Federalist. While there was some basis to believe that the people might acquire the requisite virtue, in the case of politicians it was best to assume that “the better angels of [their] nature,” to borrow Abraham Lincoln’s famous language from years later, would not direct their actions. It was more likely that pure self-interest and desire for power would be their motivation.

Therefore,

“[a]mbition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, nether external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

Those auxiliary precautions lay in the structure of the government under the Constitution, primarily a separation of powers and blending and overlapping of functions as in John Adams’s Massachusetts constitution.

Madison was not alone in declining to place all bets for success of republican self-government and liberty on human virtue. Samuel Adams may have been correct that those “Blessings of Liberty” cannot be passed on without cultivating virtue in the people, especially the virtues of the Aristotelian golden mean. Self-government requires self-restraint. But virtue, though necessary, may not be sufficient. “The best republics will be virtuous, and have been so,” the other Adams—John—concluded in the last pages of the multivolume Defence in the somewhat stilted syntax of his time,

“But we may hazard a conjecture, that the virtues have been the effect of the well-ordered constitution, rather than the cause: and perhaps it would be impossible to prove, that a republic cannot exist, even among highwaymen, by setting one rogue to watch another; and the knaves themselves may, in time, be made honest men by the struggle.”

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

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Principle of Civil Discourse To Keep Representative Government, Unhindered Freedom of Speech in the Airing of Grievances

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Guest Essayist: Andrew Langer

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

“To suppress Enquiries into the Administration is good Policy in an arbitrary Government: But a free Constitution and freedom of Speech have such a reciprocal Dependence on each other that they cannot subsist without consisting together.” – Pennsylvania Gazette, November 17, 1737, printed by Benjamin Franklin, later reprinted in the Barbados Gazette, 1738, and attributed to Andrew Hamilton, a Pennsylvania Colonial Representative, and lawyer who defended John Peter Zenger who was arrested for criticizing the government, as having possibly been the author of the article.

The age-old proclamation made in the Pennsylvania Gazette, attributed to Andrew Hamilton, regarding the “reciprocal dependence” between the United States Constitution and free speech, resonates powerfully with the principles held dear by anyone deeply concerned with balance of power between individuals and their government: the inseparability of a free constitution and freedom of speech. For a republican form of government to remain genuinely representative, it is imperative to ensure that citizens can air their grievances without fear of retaliation. To suppress the voice of the people is, in effect, to suppress the very essence of democracy which is the means a representative republic uses to make apparent the consent of the governed.

At the heart of a representative government lies the principle that those in power are there to serve, and not to dictate. They are but emissaries, chosen by the populace to voice their hopes, aspirations, and concerns. Such representation is hollow if the populace cannot, or is afraid to, communicate openly.

Civil discourse, which is simply the ability to discuss and debate matters of public interest in a reasoned and respectful manner, is the bedrock upon which representative government stands. Without it, the bridge between the representatives and those they represent is broken. The essence of representative government is lost if its constituents cannot engage in free discourse without fear of persecution.

Traditionally, classical liberals (which is how one can describe most, if not all, of the founding fathers) firmly believe in the principle of minimal government intervention in the lives of its citizens. Freedom of speech, as a cornerstone of liberty, is not just the ability to speak one’s mind but to do so without fear of government retribution. To silence or suppress speech is to curb the very freedom that serves as a bulwark against tyranny.

The case of John Peter Zenger, defended by Andrew Hamilton, stands as a testament to the dangers of a government that seeks to stifle criticism. Arrested for merely voicing his critique of the establishment, Zenger’s plight underscores the importance of preserving unhindered freedom of speech. When governments are allowed to decide what can and cannot be said, we tread perilously close to the realms of despotism.

The quote from the Pennsylvania Gazette highlights a profound truth: a free constitution and freedom of speech are interdependent. Without the liberty to speak one’s mind, a constitution, however free in letter, becomes tyrannical in spirit. Conversely, freedom of speech without a constitution that protects and upholds it is but an illusion.

The reason for this reciprocal relationship is clear. A free constitution provides the framework within which rights, including freedom of speech, are preserved. Meanwhile, unhindered freedom of speech ensures that this constitution remains truly representative, constantly held to account by the voice of the people.

In an age where voices are increasingly stifled under the guise of various reasons, it is paramount to remember the wisdom of yesteryears, as echoed by Andrew Hamilton. To suppress inquiries into administration might be the hallmark of autocracy, but in representative government, the voice of the people must remain unbridled and unbroken.

In any dynamic society that prides itself on progress, innovation, and the welfare of its people, the free flow and exchange of ideas is not just a luxury, but an absolute necessity. The significance of this cannot be overstated, particularly when it comes to addressing and solving the myriad problems society faces. At their core, the principles upon which this nation was founded cherish the values of individual freedom, limited government, and the sanctity of personal choice. This philosophy acknowledges that every individual, with their unique experiences and perspectives, has the capacity to contribute to the vast tapestry of human knowledge. However, this can only be realized if they are allowed and encouraged to express themselves freely, even if their ideas are unpopular or deemed contentious.

At the foundation of the free exchange of ideas is the belief in the “marketplace of ideas,” a theory that the truth will emerge from the competition of ideas in free, transparent public discourse. Just as economic markets rely on competition to produce the best goods and services, intellectual progress requires a contest of ideas. Suppressing unpopular or controversial ideas, even those deemed false or harmful, doesn’t necessarily make them disappear. Instead, it drives them underground where they are not subject to public scrutiny, critique, and potential refutation.

Moreover, it creates a “marketplace of ideas.” Many of the most groundbreaking discoveries and social movements in history were once viewed as controversial or even heretical. Galileo’s heliocentric model and the rights of women to vote were both, at different times, unpopular ideas. Without the freedom to challenge prevailing notions and the status quo, society would stagnate, and advancement would be hindered. A society that is open to the free exchange of ideas is more adaptable, resilient, and inventive.

Free speech also offers protection from despotism and tyranny. One of the most potent tools at the disposal of tyrannical regimes is the suppression of speech and the curtailment of the free exchange of ideas. By controlling the narrative and silencing dissent, these regimes can maintain power and perpetuate their ideologies unchallenged. History has repeatedly shown the dangers of this approach. Protecting even unpopular speech ensures a check against potential governmental overreach and tyranny.

One can also not understate the importance of freedom of speech to the betterment of men and women themselves, outside of just the political realm. On an individual level, exposure to a wide array of ideas, even those that challenge our deeply held beliefs, is essential for personal growth. It encourages critical thinking, promotes empathy by understanding various perspectives, and enriches our knowledge base. Suppressing unpopular speech denies individuals these opportunities. Promoting the greatest amount of speech ensures a vibrant civil society.

The freest speech also is a way to ensure that society solves its own problems. No society is without its problems, and often, it is only through open dialogue and the free exchange of ideas that these issues come to light. Unpopular speech can draw attention to overlooked issues, catalyze movements for change, and present alternative solutions to pervasive problems. Silencing such speech, on the other hand, can perpetuate ignorance and hinder society’s ability to address its challenges.

The suppression of speech, particularly when it involves the silencing of religious or ethnic expressions, can have dire consequences on societal cohesion and stability. Yugoslavia, under its Communist regime, is a poignant example of this phenomenon. The country, a mosaic of ethnicities and religions, was kept together through strong centralized governance and strict control over nationalist sentiments. The Communist authorities aimed to forge a unified Yugoslav identity, which involved suppressing religious and nationalist expression, relegating it to the private sphere, and often demonizing it in the public sphere. This suppression did not eradicate the deeply-rooted ethnic and religious sentiments; rather, it drove them underground, where they festered, accumulated grievances, and lacked the necessary open space for dialogue and reconciliation.

When the Communist regime in Yugoslavia disintegrated in the early 1990s, the suppressed sentiments and grievances came to the surface with a vengeance. Without the structures or platforms for peaceful dialogue in place, these sentiments exploded into sectarian violence, leading to a series of brutal wars that resulted in the dissolution of Yugoslavia. Had there been a more open space for religious and ethnic expression during the Communist era, communities might have had the opportunities to address and possibly reconcile their differences or at least coexist peacefully. Instead, the suppression created a vacuum, and when the lid was abruptly removed, the pent-up frustrations and hostilities were unleashed in a tragic wave of violence. This serves as a powerful reminder of the dangers inherent in suppressing speech and the importance of fostering open dialogue in multi-ethnic and multi-religious societies.

The importance of the free flow and exchange of ideas, even those that are unpopular, cannot be emphasized enough. Such freedom is at the very core of a thriving, advancing society. In embracing the free exchange of ideas, the fundamental human right to express oneself is championed, and fostered is an environment ripe for innovation and the holistic betterment of society.

Andrew Langer is President of the Institute for Liberty, a Fellow with Constituting America, as well as Chairman and Founder of the Institute for Regulatory Analysis and Engagement. IFL is a non-profit advocacy organization focused on advancing free-market and limited government principles into public policy at all levels. IRAE is a non-profit academic and activist organization whose mission is to examine regulations and regulatory proposals, assess their economic and societal impacts, and offer expert commentary in order to create better public policies. Andrew has been involved in free-market and limited-government causes for more than 25 years, has testified before Congress nearly two dozen times, spoken to audiences across the United States, and has taught at the collegiate level.

A globally-recognized expert on the impact of regulation on business, Andrew is regularly called on to offer innovative solutions to the challenges of squaring public policy priorities with the impact and efficacy of those policies, as well as their unintended consequences. Prior to becoming President of IFL and founding IRAE, he was the principal regulatory affairs lobbyist for the National Federation of Independent Business, the nation’s largest small business association. As President of the Institute for Liberty, he became recognized as an 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.

Andrew has had an extensive career in media—having appeared on television programs around the world. From 2017 to 2021, he hosted a highly-rated weekly program on WBAL NewsRadio 1090 in Baltimore (as well as serving as their principal fill-in host from 2011 until 2021), and has filled in for both nationally-syndicated and satellite radio programs. He also created and hosted several different podcasts—currently hosting Andrew and Jerry Save The World, with long-time colleague, Jerry Rogers.

He holds a Master’s Degree in Public Administration from Troy University and his degree from William & Mary is in International Relations.

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Principle of Freedom of Assembly

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Guest Essayist: Scot Faulkner
Carpenter's Hall In Old City Philadelphia, Pennsylvania

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

“New England town meetings have proved themselves the wisest invention ever devised by the wit of man for the perfect exercise of self-government and for its preservation.” – Thomas Jefferson, 1816

“Local assemblies of citizens constitute the strength of free nations. Town-meetings are to liberty what primary schools are to science; they bring it within the people’s reach, they teach men how to use and how to enjoy it. A nation may establish a system of free government, but without the spirit of municipal institutions it cannot have the spirit of liberty.” – Alexis de Tocqueville, 1835

The concept of people openly gathering to discuss matters of public interest was developed among the ancient Greek city states in the 6th Century B.C.  It became known as “Athenian Democracy” under the leadership of Pericles (461-429 B.C.) during Athens’ “Golden Age.” Participation was open to all adult free male citizens.

In actions that would be repeated throughout history, Athenian public meetings were suppressed to centralize government power. This occurred in 322 B.C. by the rulers of the Macedonian Empire, first Philip II and then his son, Alexander “the Great.”

Freedom of assembly vanished during the Roman Empire and the feudal states. People could still petition the chief, warlord, or king for grievances, but local democracy was lost.

Iceland rekindled community-based democracy in 930 A.D.

The Althing (Norse for “assembly field”) was an open area (near present day Reykjavik) reserved for the annual gathering to discuss and decide issues facing the community. The presiding official, Lögsögumaður (Norse for “Law Speaker”), stood on a central rock outcropping known as the Lögberg (Norse for “Law Rock”).  He established the procedures for the Althing and declared decisions after open discussion and voting. All free men had the right to attend and participate.

The Althing lost its authority when Iceland was annexed by Norway in 1262.

In 1231, the freedom of assembly, and early federalism, arose among the various independent regions (Cantons) in Switzerland. The Landsgemeinde (German for “cantonal assembly) was established as a system of direct democracy, open voting, and majority rule among the communitas hominum (Latin for “the community of men”). This terminology was to emphasize that it was an assembly of all citizens, not just the elite.

Citizens of the Swiss Cantons fiercely defended their assemblies. In 1499, they defeated the forces of Emperor Maximillian I, the Holy Roman Emperor, at the battle of Dornach. They retain their system to this day.

The practice of holding town meetings in Colonial America developed from 17th Century English “vestry” meetings. These meetings allowed parishioners to discuss and decide issues relating to their local parish. These became integral to New England communities in the mid to late 1600s. Their agendas ranged beyond church governance to community matters.

In 1691, the Colonial Parliament (General Court) of the Commonwealth of Massachusetts passed a Charter that declared that final authority on bylaws rested with town meetings. In 1694, the Massachusetts General Court granted town meetings the authority to appoint assessors. In 1715 it granted town meetings the right to elect their own presiding officers (moderators) instead of relying on outside appointees.

Colonial meeting houses remain places of reverence in small towns throughout New England.

It is not surprising that eradicating town meetings, and restricting the right to free assembly, were key elements in Britain’s suppression of America’s Independence movement in the early 1770s.

Lord North, the British Prime Minister (1770-1790), instituted harsh measures to suppress dissent and disrupt the culture of self-government, which he viewed as the root cause of the chaos. On May 2, 1774, North declared Massachusetts was “in a distempered state of disturbance and opposition to the laws of the mother country.”

On May 20, 1774, the British Parliament passed the Massachusetts Government Act, which nullified the Massachusetts Charter of 1691. It abolished local town meetings because, “a great abuse has been made of the power of calling them, and the inhabitants have, contrary to the design of their institution, been used to treat upon matters of the most general concerns, and to pass dangerous and unwarrantable resolves.” Ongoing local meetings were replaced by annual meetings only called with the Colonial Governor’s permission, or not at all.

A series of five punitive acts were passed by Parliament intended to restrict public discourse and punish opponents. It was England’s hope the “Intolerable Acts” would intimidate rebellious Colonists into submission. The “Acts” ignited a firestorm of outrage throughout Colonial America. More importantly, it generated a unity of purpose and inspired a willingness for collective action among leaders in the previously fragmented American colonies.

In a bold “illegal” act to assert its right to free assembly, the First Continental Congress met in the Carpenters Hall in Philadelphia from September 5 to October 26, 1774. Twelve of the thirteen colonies (Georgia opted out) were represented. They issued the “Declaration of Rights and Grievances,” the first unified protest of Britain’s anti-colonial actions.

The British Crown’s assault on the right to free assembly was among the top Grievances listed in the Declaration of Independence less than two years later.

Scot Faulkner is Vice President of the George Washington Institute of Living Ethics at Shepherd University. He was the Chief Administrative Officer of the U.S. House of Representatives. Earlier, he served on the White House staff. Faulkner provides political commentary for ABC News Australia, Newsmax, and CitizenOversight. He earned a Master’s in Public Administration from American University, and a BA in Government & History from Lawrence University, with studies in comparative government at the London School of Economics and Georgetown University.

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Principle of Freedom of Religion

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Guest Essayist: Patrick Garry

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

“Whereas Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as it was in his Almighty power to do;…that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical;…and finally, that truth is great and will prevail if left to herself; that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless by human interposition disarmed of her natural weapons, free argument and debate, errors ceasing to be dangerous when it is permitted freely to contradict them:…Be it enacted by the General Assembly, That no man shall be compelled to frequent or support any religious worship, place, or Ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief;” – Thomas Jefferson, Virginia Statute for Religious Freedom, January 16, 1786.

Freedom of religion has been a foundational belief ever since America’s colonial beginnings in the seventeenth century. Most of the colonies were religiously inspired enterprises, and the early laws and charters of the colonies reflected those religious beliefs.

The European settlement of America owed much to the desire of the new settlers to escape the religious oppression of their old country. They braved the long, treacherous ocean journey to come to an unknown land filled with unknown dangers, all for the sake of finding the freedom to practice their religion.

A belief in freedom of religion stems from the conviction that religion reflected a higher source of authority than do civil governments; therefore, those governments should not coerce individuals from following their religious beliefs, especially when those beliefs do not threaten the state or pose harm to any other individual.

England, an originating country for many early settlers, possessed a state established religion—the Church of England. The government both supported this religion, with tax revenues, and regulated its theological practices. This meant that individuals who did not adhere to the tenets of the Church of England and who did not wish to belong to that religion were nonetheless forced to support it. Moreover, religious dissidents were often oppressed and discriminated against in various ways. It was this oppressive environment from which many American settlers wished to escape.

Once in America, the settlers initially formed their colonies around the single religion of their belief. However, as settlement increased and the colonies became more diverse in their population, the colonies in turn became more diverse in their religious identities, with the result that the American colonies acquired a practice of religious tolerance unknown in Europe.

This tolerance continued after America achieved its independence and formed a constitutional republic. The very first freedom enshrined in the First Amendment of the Bill of Rights guarantees individuals the right to freely exercise their religious beliefs. To further protect religious freedom, the First Amendment also prohibits Congress from establishing a state-run religion, as England had done with the Church of England.

Over the years, courts have grappled with the application of these religious liberty provisions in the First Amendment. The courts have ruled that the Free Exercise Clause prohibits government from targeting religion for selective burdens or discriminating against religious believers. However, because courts have not wanted to adjudicate all the areas in which religious beliefs might conflict with secular laws, the courts have held that neutral and generally applicable laws that incidentally burden religion are not unconstitutional. This holding has left religious believers vulnerable on a number of fronts, and so Congress in 1993 by an overwhelming margin passed the Religious Freedom Restoration Act, which sought to strengthen legal protections for religious liberty. Unfortunately, during the thirty years since passage of that law, the commitment to religious liberty on behalf of many political and governmental leaders appears to have waned.

With respect to the Establishment Clause of the First Amendment, courts have been even more confused and divided. Whereas some judges believe that the Establishment Clause was intended as another means by which to protect religious liberty, other judges have seen the Clause as a tool by which to prohibit any interaction between government and religion, thereby preventing religious institutions from receiving any government benefits or recognitions that all other social institutions are entitled to receive. This latter position rests on the argument that any government benefit given to a religious organization, regardless of whether that benefit has anything to do with religious beliefs, amounts to an unconstitutional establishment of religion. Essentially, this argument equates a Christmas display of a nativity scene in a public park with the tax-supported Church of England.

The judicial dispute on the Establishment Clause has come down to a debate over whether the Clause was intended to protect religious liberty or the secular identity of society. Recently, the U.S. Supreme Court has greatly clarified the nature and purpose of the Establishment Clause. Several years ago, it held that a cross monument constructed by private parties to honor military veterans, but now standing on public property, did not rise to the level of an unconstitutional establishment of religion. And in 2022, the Court held that a public school district did not violate the Establishment Clause by not forcibly prohibiting an assistant football coach from voluntarily saying a private prayer at mid-field after the conclusion of a game.

Opinion polls and political agendas suggest that Americans may not value religious liberty in the same manner as eighteenth-century Americans did. But the constitutional Framers foresaw that religious liberty should not be left up to the dictates of political opinion. The Framers so valued religious liberty that they placed it as the first liberty protected by the Bill of Rights.  And unlike contemporary critics who see religion as divisive, the Framers valued religion for contributing to the civic virtue and welfare of society.

For the constitutional Framers, freedom of religion was necessary not just to protect what was considered the most important individual liberty, but to protect the vitality and thriving of religious beliefs and institutions that in turn did much to strengthen society. Through religion, citizens learned the values of public service, honesty, and the rule of law. Religious belief combatted the vices of selfishness and greed and helped strengthen the virtues of self-sacrifice and self-restraint, which were seen as necessary traits for a stable nation.

Patrick M. Garry is professor of law at the University of South Dakota. He is 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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Defending Liberty and Rights in Property Through the Fruits of One’s Own Labor

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Guest Essayist: Joerg Knipprath

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

Alexander Hamilton responded in numerous essays in The Federalist to the charges that Congress might impose excessive taxation. Among his efforts to calm the torrents of dissent was essay No. 21, where he opined that imposts, excises, and other duties on articles of consumption were preferable to other types of taxes. Consumption taxes were unlikely to be excessive, as they had a built-in safety valve. The higher the tax, the less of the article would be consumed, which would result in less revenue collected. “This forms a complete barrier against any material oppression of the citizens, by taxes of this class, and is itself a natural limitation of the power of imposing them.”

As a supporter of the wealthy merchant class, Hamilton might have been supportive of consumption taxes for another reason. In England as well as North America, the tendency was for legislative majorities to impose most taxes on other than their own class. As the historian Forrest McDonald describes the matter of taxes as “gifts” to the government in his book Novus Ordo Seclorum, “When deciding whether to give away one’s own property or somebody else’s, humankind—being imperfect—has a disposition to give away somebody else’s. Hence, for several centuries, the landed gentry in the House of Commons elected to have as much of the tax burden as possible fall either upon their tenants or upon gentlemen of trade. When the latter gained influence and power proportionate to their wealth, this trend was altered; but the costs of government rose astronomically during the eighteenth century, and country and city gentlemen tended to meet these costs by multiplying the kinds and amounts of taxes upon consumer necessities. They volunteered as many of the ‘gifts’ as possible from the unrepresented poor.”

In the American colonies, according to McDonald, legislatures were mostly controlled by the landed gentry, elected by the broad proportion of the adult male population which owned sufficient land to meet the property qualifications for voting. “The American colonists developed an aversion to taxation for which they were to become celebrated. What was less celebrated, they tended to place the main burden of taxation, insofar as was possible, on merchants and on the well-to-do. The euphemism for this practice was requiring the most taxes from those who were best able to pay; again the reality was requiring somebody else to make the gift.” James Madison, in his 1792 essay, “Property,” was making that same point when he wrote, “A just security to property is not afforded by that government under which unequal taxes oppress one species of property and reward another species: where arbitrary taxes invade the domestic sanctuaries of the rich, and excessive taxes grind the faces of the poor.” Those attributes of taxation remained, although mainly in the form of income taxes, which grind the middle and upper middle class.

Thomas Jefferson, on the other hand, rather predictably supported taxes on merchants and manufacturers. In April of 1811, in a letter to General Thaddeus Kosciusco, Jefferson wrote of his ideas about restraining the tendency for manufacturing to concentrate wealth and encourage corruption, dependence, and servility among the population. “…. [W]e shall soon see the final extinction of our national debt, and liberation of our revenues for the defence and improvement of our country. These revenues will be levied entirely on the rich, the business of household manufacture being now so established that the farmer and laborer clothe themselves entirely. The rich alone use imported articles, and on these alone the whole taxes of the General Government are levied. The poor man who uses nothing but what is made in his own farm or family, or within his own country, pays not a farthing of tax to the general government, but on his salt; and should we go into that manufacture also, as is probable, he will pay nothing. Our revenues liberated by the discharge of the public debt, and its surplus applied to canals, roads, schools, etc….” Jefferson did not take into account the imposition of tariffs on imported goods, which increased the influence and wealth of domestic manufacturers at the expense of the landed yeomanry, raised the prices of domestic goods, and caused frequent sectional conflicts between the South and West on the one hand, and the Northeast on the other.

Other than proceeds from the sale of western lands, the most common source of revenue for the early United States was import duties. Those were generally acceptable during the first several decades, because they involved voluntary purchases and were often seen, as Jefferson’s remarks show, as luxury taxes paid by the wealthy. Attempts to tax the fruits of labor, such as the Whiskey Tax of 1791, precipitated significant political opposition and a drawn-out period of unrest from 1791 to 1794. There were incidents of violence against federal tax collectors and the property of federal officials. That unrest, dubbed the Whiskey Rebellion, ended only after a show of military force by federalized militia, the arrest and trial of a handful of participants, and, eventually, the repeal of the tax.

A later tax on labor, the 1894 federal peacetime income tax, was struck down as unconstitutional by the Supreme Court in 1895 in Pollock v. Farmers’ Loan and Trust Co. It took another couple of decades and a constitutional amendment before a one percent tax on income above $3000, affecting only about three percent of the population of the United States, was enacted. Since then, the federal government has relied primarily on taxes on production and labor, such as excise taxes on products and income taxes, rather than on import duties and tariffs.

Another threat to the rights in property was expropriation and redistribution of land. Many Revolutionary War era state legislatures found it impossible to resist the lure of seizing property owned by British subjects and American Loyalists and reselling it to American Patriots, either settlers or speculators. But, in general, there probably was nothing that more viscerally frightened and repelled most Americans than redistribution of property. As noted earlier, many Americans reacted in shock to the alleged goal of Daniel Shays and his followers to force a redistribution of land. There was no less opposition to a peaceful redistribution of land through what were called “agrarian laws.” Hamilton, Washington, Adams, Madison, Jefferson, and John Taylor of Caroline County might view agrarian republicanism with lesser or greater degree of favor, but all rejected such interference with a person’s rights in property.

Even Taylor, the foremost American theorist and defender of agrarian republicanism, declared that redistributions of property were grotesque infringements of liberty. He noted that government was instituted primarily to protect private property, the “acquisitions of private people, which no law can transfer to other private people.” On a curious note, Taylor assured his readers that, as a practical matter, it would be futile to support such laws, because the political system was rigged against them: “My fellow laborers, mechanical or agricultural, let us never be deluded into an opinion, that a distribution of wealth by the government or by law, will advance our interest.” The mechanics and farmers may constitute the majority of nations, but “a minority administers governments and legislates.”

The judiciary also placed themselves firmly in categorical opposition to such laws, using both specific constitutional restrictions and more abstract political theory. A clear statement to that effect came from Justice Samuel Chase in 1798 in Calder v. Bull. In language similar to that of Taylor, Chase insisted that “a law that takes property from A. and gives it to B.” would “take away that security for personal liberty or private property for the protection whereof the government was established” and would be “contrary to the great first principles of the social compact.” Presumably, even an exercise of eminent domain through which government compensated the property owner for the land seized was unconstitutional if the land was transferred to another private person. For better or worse, that strictness was not always observed as states condemned land for private canal and turnpike operations. Not unexpectedly, given the breeziness with which rights in property are infringed today, the Supreme Court no longer sees forced transfers of property from one person to another as fundamentally objectionable, as long as the original owner is compensated, and the transfer achieves some vague public purpose.

In Vanhorne’s Lessee v. Dorrance, a federal circuit court case in 1795, Justice William Paterson, a leading figure at the Philadelphia Convention, struck down as an unconstitutional taking of property a Pennsylvania law that vested title to tracts of land after the land had previously been granted to another claimant. Using both the Constitution’s text and natural law reasoning Chief Justice John Marshall and Justice William Johnson wrote opinions in Fletcher v. Peck in 1810 striking down a similar Georgia law as a violation of vested rights in property. Johnson, a Jeffersonian republican, went so far as to announce that such laws went against a general principle which binds all legislatures, “the reason and nature of things; a principle which will impose laws even on the deity.” Setting aside theological disputation about the last part of that assertion, Johnson’s opinion recognized the fundamental nature of rights in property.

The final threat to property and the fruits of one’s labor in the early United States came in the form of laws which interfered with duly made contracts. State legislatures in the 1780s, responding to depressed economic conditions, repeatedly meddled in debtor-creditor relations with a plethora of laws designed to assist debtors. Most notorious were state laws making depreciated paper currency legal tender for the payment of debts. Neither state constitutional guarantees nor the frail central government created by Articles of Confederation proved able to halt these legislative abuses. State courts were simply unable to uphold the rights of creditors in the face of public pressure. “Americans,” Forrest McDonald concluded, “were not as secure in their property rights between 1776 and 1787 as they had been during the Colonial period.”

When discussing the destructive influence of political factions in essay No. 10 of The Federalist, Madison described the types of pernicious laws that have resulted from factions gaining majority control of legislatures. He was obviously referring to the laws enacted through the tumultuous factional politics of the state governments of his time: “…a rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than any particular member of it, in the same proportion as such a malady is more likely to taint a particular county or district, than an entire State.” Such laws, too, interfered with the legitimate expectations of people to have the fruits of their labor protected, because funds lent in good faith could be repaid in worthless scrip and contracts for goods and services performed in good faith could be undone on legislative whim. The Constitution sought to remedy this problem by prohibiting state laws which impaired the obligations of contract and frustrated rights vested under such contracts. Unfortunately, over the past century, the Supreme Court has effectively neutered that clause.

Justice Stephen Field, the most influential American judge of the latter part of the 19th century, put it succinctly in 1890 in an address on the occasion of the centenary of the Supreme Court: “It should never be forgotten that protection to property and persons cannot be separated. Where property is insecure the rights of persons are unsafe. Protection to the one goes with protection to the other; and there can be neither prosperity nor progress where either is uncertain.”

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

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Principle of Keeping the Fruits of One’s Own Labor

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Guest Essayist: Joerg Knipprath

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

“A just security to property is not afforded by that government, under which unequal taxes oppress one species of property and reward another species: where arbitrary taxes invade the domestic sanctuaries of the rich, and excessive taxes grind the faces of the poor; where the keenness and competitions of want are deemed an insufficient spur to labor, and taxes are again applied, by an unfeeling policy, as another spur; in violation of that sacred property, which Heaven, in decreeing man to earn his bread by the sweat of his brow, kindly reserved to him, in the small repose that could be spared from the supply of his necessities.” – Property, an essay by James Madison, March 29, 1792.

One of the fundamental philosophical tenets of American republicanism in the late 18th and the 19th century was the inviolability of rights in property. Influenced by the writings of John Locke on political theory, the definition of property extended not only to material property, but to the status of ownership over oneself. One had natural rights in one’s person. The exercise of one such right, labor, would lead to the acquisition of an estate in material property. As James Madison explained in essay No. 10 of The Federalist, there is a “diversity in the faculties of men, from which the rights of property originate…. The protection of these faculties is the first object of government.” It is these inherent characteristics of mind, body, and talents that government must protect, not handicap. “From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results.”

Property in both senses, metaphysical and material, was the source of a person’s liberty. In the metaphysical sense, one’s property in oneself meant that one was not by nature the slave of another, and that, therefore, as a free person, one had certain rights of which one could not be deprived. In the material sense, a sufficient portion of property, especially of land, provided the independence that was necessary for the effective exercise of one’s liberty. Further, that independence from others’ control must exist broadly within the community to supply the civic virtue needed for republican self-government. Property as so understood was at the basis of human flourishing for the individual and the community. When Thomas Jefferson changed the last aspect of Locke’s formulation of natural rights from property to the pursuit of happiness in the Declaration of Independence, he did not change the fundamental point that property was critical to human happiness understood as individual flourishing within a political commonwealth governed by consent of its people.

Locke had posited that one’s labor, mixed with the land (or with other raw materials in the case of non-agricultural pursuits), created private property out of what God had given humans in common in nature. An estate, therefore, was a fruit of one’s labor, and government action to take or diminish one’s estate or to commandeer one’s labor was a violation of fundamental rights to property and liberty. A century after Locke, Adam Smith made a similar point in 1776 in Wealth of Nations. “The property which every man has in his own labor,” Smith wrote, “as it is the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of the poor man lies in the strength and dexterity of his own hands; and to hinder him from employing this strength and dexterity in what manner he thinks proper, without injury to his neighbor, is a plain violation of this most sacred property. It is a manifest encroachment upon the just liberty both of the workman and of those who might be disposed to employ him. As it hinders the one from working at what he thinks proper, so it hinders the others from employing whom they think proper.”

Writing yet another century later, in 1872 in The Slaughterhouse Cases, the highly-respected Justice Joseph Bradley observed in a dissent from a Supreme Court decision to uphold a slaughterhouse monopoly, “Rights to life, liberty, and the pursuit of happiness are equivalent to the rights of life, liberty, and property. These are the fundamental rights which can only be taken away by due process of law, and which can only be interfered with, or the enjoyment of which can only be modified, by lawful regulations necessary or proper for the mutual good of all; and these rights, I contend, belong to the citizens of every free government.

“For the preservation, exercise, and enjoyment of these rights the individual citizen, as a necessity, must be left free to adopt such calling, profession, or trade as may seem to him most conducive to that end. Without this right, he cannot be a freeman. This right to choose one’s calling is an essential part of that liberty which it is the object of government to protect, and a calling, when chosen, is a man’s property and right. Liberty and property are not protected where these rights are arbitrarily assailed.”

The right to engage in labor of one’s choosing, and the right to retain the fruits thereof in the form of property, are central to one’s liberty, yet experience has shown that governments have threatened these rights repeatedly. Taxation, redistribution of property, especially of land, and abolition of debts have been the most potent threats to security in property. Taxes, notably those on land or its produce, were particularly suspect because they could deprive people of their most basic means of subsistence and status, while benefiting some favored politically powerful individual or group.

Sounding much like Plato in The Republic about the defects of democracy, John Adams identified the danger in his Defence of the Constitutions of Government of the United States. Although his posited facts appear odd considering his assurances elsewhere about the widespread distribution of property in New England, he argued, “[A] great majority of every nation is wholly destitute of property, except a small quantity of clothes, and a few trifles of other movables. Would Mr. Nedham be responsible that, if all were to be decided by a vote of the majority, the eight or nine millions who have no property, would not think of usurping over the rights of the one or two millions who have? Property is surely a right of mankind as really as liberty. Perhaps, at first, prejudice, habit, shame or fear, principle or religion, would restrain the poor from attacking the rich, and the idle from usurping on the industrious; but the time would not be long before courage and enterprise would come, and pretexts be invented by degrees, to countenance the majority in dividing all the property among them, or at least, in sharing it equally with its present possessors. Debts would be abolished first; taxes laid heavy on the rich, and not at all on the others; and at last a downright equal division of every thing be demanded, and voted. What would be the consequence of this? The idle, the vicious, the intemperate, would rush into the utmost extravagance of debauchery, sell and spend all their share, and then demand a new division of those who purchased from them. The moment the idea is admitted into society, that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. If ‘Thou shalt not covet,’ and ‘Thou shalt not steal,’ were not commandments of Heaven, they must be made inviolable precepts in every society, before it can be civilized or made free.”

The long struggles over taxation between king and barons in Magna Charta, and subsequently between king and Parliament, had ended with Parliament’s power over the purse confirmed in the settlement offering the throne to William and Mary after the Glorious Revolution of 1688. Taxes were said to be a “gift” of property from the people to the king. Therefore, the king could not simply impose taxes, any more than a thief could help himself to one’s property or command one’s labor. However, under the class-based theory of virtual representation which held that all Englishmen other than the high nobility were represented in the House of Commons, that body had the authority to vote in favor of granting the king such a gift. The American colonists had a different theory of representative government, one based on geographic communities whose residents selected “their” representatives. As such, they rejected taxes levied by vote of the House of Commons in which, the colonials averred, they were not represented. That basic difference over the nature of representation led to the revolutionary slogan “no taxation without representation.” But even domestically, contests between royal governors and colonial legislatures over taxation were endemic.

Americans’ distrust of taxation continued after independence. The power to tax was still the power to destroy, even if it was exercised by a legislative majority elected by themselves. The problem existed at the state level and, if anything, was considered even more of a threat at the national level. The Articles of Confederation tried to strike a balance between taxes and liberty by giving Congress only the power to levy requisitions on the states, not to impose taxes directly on people. When the Constitution of 1787 gave Congress a broad taxing power, it produced significant resistance. One concern was that the Congress might impose a level of taxation that destroyed the liberty of persons by impoverishing them. Another was that the power threatened the vitality of the states.

The example of Shays’s Rebellion in Massachusetts in 1786 provided a concrete lesson about the former concern. The state legislature, acting on the prompting of Governor John Hancock, had voted expensive programs of repaying the state’s war debts at face value, even though the state’s notes had depreciated significantly in value. This benefited wealthy speculators in those notes. It also placed a severe burden on the state’s finances. However, Hancock refused to collect the taxes the legislature had voted to cover the costs. When he left office, the state’s treasury was in dire straits, and that politically unpleasant task fell to his successor, James Bowdoin. The taxes heavily burdened farmers in the western part of the state. The resulting discontent produced statements of grievances, interference with court proceedings, and a loosely organized armed force of debtor farmers eventually defeated by a volunteer army recruited in the state’s eastern counties.

Shays’s Rebellion frightened many Americans. They were alarmed by exaggerated accounts of Shays’s “army,” especially the report written to George Washington by Henry Knox, the superintendent of war under the Confederation. Washington believed Knox’s wild claims, including that Shays intended to march south and to seize and redistribute land. A letter from Abigail Adams to Thomas Jefferson noted that some Shaysites called for an equal distribution of property. Another letter, from James Madison to his father, asserted that “an abolition of debts, public and private, and a new division of property are strongly suspected to be in contemplation.” The tumult gave strong impetus to the convening of the constitutional convention in Philadelphia.

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

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Principle of a Free Press

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Guest Essayist: Patrick M. Garry

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

“Without Freedom of Thought, there can be no such Thing as Wisdom; and no such Thing as publick Liberty, without Freedom of Speech” – Part of an article by Benjamin Franklin, under the pseudonym Silence Dogood, a name he used due to threats against free speech. Franklin wrote it on freedom of speech and of the press; it published in a newspaper: No. 8 on July 9, 1722, The New-England Courant.

The principle of a free press is enshrined in the First Amendment of the United States Constitution. This principle has shaped and characterized American society and political governance from the nation’s earliest beginnings. Americans of every generation have valued a free and independent press, protected from the controlling or censuring arm of government.

This strong American cherishing of a free press has its roots in the colonial period, during the lead-up to the movement for independence from Britain. As the colonists learned, such a movement would not have been successful without a free and vibrant press.

One of the political catalysts of the American Revolution was the effort of the British to subdue the popular press in colonial America. This attempt was twofold. The first was an accelerated use of the law of seditious libel. The second was the Stamp Act, under which a prohibitive tax was placed on the paper used by the presses. This tax threatened to force the inexpensive press out of circulation and thus to suppress colonial discussion of politics.

The Stamp Act passed by Parliament in 1765 proposed a host of unprecedented and, in the American view, unconstitutional burdens. The passage of the Stamp Act hurt printers by threatening an increase in their costs and by jeopardizing their subscription base, since many subscribers refused to even indirectly pay a tax to the Crown.

Following passage of the Act, the colonial newspaper documented the public’s mounting opposition to the Act. Indeed, the outburst of popular resentment against the Act was so great that it led to the start-up of four new newspapers. Printers took an active role in the debate and developed a close alliance with political groups such as the Sons of Liberty. These political groups also founded new newspapers whenever they felt it desirable.

As the Stamp Act became effective, the majority of colonial newspapers became inspired by the wave of public opposition to the Act, and in one manner or another opposed the Act. By the time the Stamp Act was repealed, newspaper printers had acquired a heightened sense of their role in the community. The principle of “liberty of the press” had become a battle cry against the Stamp Act. The campaign against the Stamp Act also increased the opinion role of newspapers. No longer mere transmitters of information, they had become engines of opinion.

The newspapers carried forward the role they had played in the Stamp Act crisis to the protest against the Townshend Acts. Even more so than the Stamp Act, the Townsend Acts sparked an intense battle of opinion waged in the newspapers. This battle was fought between the patriot press and the government press, revealing the degree of public support behind each cause. The spirited campaign fought by the patriot newspapers against the Townshend Acts contributed to the eventual repeal of nearly all of the duties.

During the controversy surrounding the Stamp Act and Townshend Acts, printers were greatly swayed by the opinions of their readers. The more radical the readers, the bolder the printers. The content of colonial newspapers closely mirrored the particular issues that were important to the local constituencies. The press in effect became intertwined with local partisan battles, and newspapers often started up just as a political issue rose in importance.

During the interim period between the Townshend Acts and the Revolutionary War, newspapers continued to exist and to flourish, keeping open the channels of public discussion, which would become valuable in the crucial years ahead.

In 1773 when Parliament passed the Tea Act, a roar of protest once more emerged from the newspapers. The most aggressive editors were those who had participated in the protests in the 1760s. Again, the public mood thrusted the newspapers into the midst of the protest.

The American press played a major role in opposing British rule. The distinct gain in prestige made by the press during the revolutionary period began with the Stamp Act, the repeal of which was recognized as the result of a united colonial opposition made possible by the important role played by the newspapers of the day.

In addition to its political consequences, the newspaper offensive unleashed by the Stamp Act made several permanent impacts on American journalism. First, the influence of the press was enormously enhanced, instilling a newspaper-reading habit that would characterize many succeeding generations. In 1800, for instance, a magazine declared the United States to have become a nation of newspaper readers, and foreign observers noted in comparison with Europe the prevalence of newspapers in America.

After achieving independence from Britain and setting out to form a new constitutional republic in the United States, the Framers knew and treasured the role that a free press had played in shaping a new nation. This principle would receive not only constitutional protection in the Bill of Rights but would also command widespread popular support throughout America for centuries to come.

Patrick M. Garry is professor of law at the University of South Dakota. He is 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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Principle of Free Market Trade, Industry, Innovation and Competition

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Guest Essayist: Stephen Tootle

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

“That is not a just government, nor is property secure under it, where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties, and free choice of their occupations, which not only constitute their property in the general sense of the word; but are the means of acquiring property strictly so called.” – Property, an essay by James Madison, March 29, 1792

Americans are exceedingly fortunate in some regards. The founding generation that theorized about creating a government did not evaporate into thin air or disappear into classrooms after publishing a few papers or demonstrating for change. Instead, most of them engaged in practical politics. They were around to find the limits and implications of their theories. James Madison, as the primary author of the United States Constitution could have retired and lived the life of a hermit and still made it into our history books. He did not do that.

By the Spring of 1792 Madison was a congressman from Virginia, engaged in the messy horse-trading of practical politics. He was also actively engaged in describing how the underlying principles of our government interacted with the real world. He watched the beginnings of the ideological and partisan divisions between people who shared all of the same fundamental principles. He saw regions compete with regions and nations serve as both positive and negative examples for America.  In that spirit, he wrote an essay on the subject of property published March 29, 1792.

Madison conceived of property rights in a way that was much broader, deeper, and more expansive than the mere protection of wealth or land. Understanding his conception is central to understanding the very nature of the American government. Unlike some later thinkers, Madison and the Founders did not consider the rights of property to be a “thing” that was separate, apart, held only socially, or distinct from all other rights of an individual. While that might seem like an inconsequential bit of political theory, the practical implications of this formulation were enormous and foundational to the idea that human beings could live prosperous lives at peace with one another.

If property rights were natural to all other rights, things like free market trade, industry, innovation, and competition were the consequences of the deeper foundational principles of the Founders—not their purpose.  To put it another way, Madison and the Founders did not envision liberty in order to justify the free market or property rights; Madison merely recognized the implications of property rights in the real world. To pretend that our system of government could function without the protection of individual property rights would have seemed oxymoronic and absurd to the framers of our political institutions.

In the American system and as outlined by Madison, the same set of individual rights have both a private and public function. He understood that every right an individual holds has some manifestation in the physical world. Understanding that simple fact led him to a conclusion that was inescapable, profound, and should be obvious: Every right lived and breathed in its relationship to the rights of property. No just government could sever property rights from any of the natural rights held by any individual. This was not enough.

Because individuals exercise the rights of property in a social context, they depend on a reciprocal, peaceful recognition within a political system. A just system protected the rights of every individual. As Madison wrote, property, “…embraces every thing to which a many may attach a value and have a right, and which leaves to every one else the like advantage.”[1] Any right you have and anything you find valuable is defined as property. Because everyone has rights, everyone has property worthy of protection.

Property then, was more than simply money, wealth, land, or objects. Madison understood that one could not claim to have free opinions without being free from violence when communicating those ideas. One could not freely express religious belief and practice when personal safety and property were threatened. The freedom to choose where to work, what to work for, and what to do with the product of one’s work were inseparable. All were rights. All were inseparable from property.

To Madison, any pretended choice between the rights of property and any other right was a false dichotomy. The rights of property were inextricably linked to every other right and should be recognized and balanced in a peaceful constitutional order. As he concluded, “…a man is said to have a right to his property, he may be equally said to have a property in his rights.”[2] Protecting property rights – in this expansive understanding of property – was the very purpose of just government. There could be no other definition of justice beyond every individual peacefully having what they deserved to have while secure in their peaceful possession of all liberties. Because of this, Madison believed government ought only to interfere with property rights sparingly.

Any government that violated religious liberty with tests, taxes, or an imposed hierarchy would not be just. Any government that failed to enforce contract law, engaged in arbitrary property seizures, or allowed one class of people to oppress another would be violating the rights of conscience, which Madison called “the most sacred of all property.”[3]  But he had a special ire for the regulated markets of the British mercantilist system and worried that America might follow their example.

Government itself could easily fall out of balance by imposing, “restrictions, exemptions, and monopolies” that would interfere with property rights.[4] Property was not secure when government encouraged one form of work or manufacturing over another. Such encouragement would be similar to an unjust tax designed to reward friends and punish enemies. He deplored the use of taxation as social policy and recognized the temptation to, “invade the domestic sanctuaries of the rich,” or taxation that would, “grind the faces of the poor.”[5] He understood that human beings always sought advantages for themselves and would try to use taxation to gain those advantages.

Leaders needed to be scrupulous in dealing with all forms of property–including the property that individuals hold in ambitions, religion, opinions, and labors. None should be taken from an owner without full compensation. If the United States wanted to maintain its legitimacy and serve as an example to the world, its government had to “equally respect the rights of property, and the property in rights….”[6] There could be no substitute for this formulation.

Human beings are infinitely complex. Part of Madison’s genius was his understanding of the practical application of rights based on how imperfect human beings lived in an imperfect world. Instead of theorizing about how to turn human beings into angels, Madison understood the complexity of human experiences and the relationship between the internal and the external world. He knew that politics can do many things, but it cannot do everything.

Of course Madison and the Founders believed in the principles of free market trade, industry, innovation, and competition. Every competition requires the peaceful execution of its rules or it could not be said to be a competition. The violent suppression of innovation or use of violence in directing labor was anathema to anything resembling a free life. If all of our rights have a manifestation in property, individuals must be able to buy, sell, withhold, cherish, and labor for property – broadly understood – as they see fit. To say that our Founders believed in a “free market” is to state nothing so plain as the Founders believed that people could live peaceful lives. One could not protect any fundamental rights without protecting the “property in rights.”[7] There is no other way.

Stephen Tootle is a Professor of History at the College of the Sequoias in Visalia, California and Honored Visiting Graduate Faculty in History and Government at Ashland University in Ashland, Ohio. His writings have appeared in National Review, Presidential Studies Quarterly, The Claremont Review of Books, The Journal of the Gilded Age and Progressive Era, and other publications. He gives talks on politics and political history for the Ashbrook Center and the Bill of Rights Institute and is the co-host of The Paper Trail Podcast, a weekly public affairs podcast published by the Sun-Gazette.

[1] https://teachingamericanhistory.org/document/property/

[2] Ibid.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] Ibid.

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Principle of Private Property Ownership To Sustain Liberty, Encourage Commerce and Independence

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Guest Essayist: Tony Williams

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

In the early 1790s, Representative James Madison was a skilled politician, newspaper polemicist, and member of the Jeffersonian Republican Party. In all of these roles, Madison demonstrated increasing concerns about the centralizing tendencies occurring in the first of the American presidencies which began with the Washington administration. He was especially concerned about Secretary of Treasury Alexander Hamilton’s financial policies regarding the public credit and a national bank.

In late 1791 and throughout 1792, Madison penned a series of eighteen newspaper essays on various topics of government, law, and economics. He wrote them to reflect on various topics related to self-government, but his main purpose was to expose how Federalist Party policies stretched the boundaries of the United States Constitution by expanding the power of the national government.

On March 29, 1792, Madison published one of the essays entitled “Property.” In the essay, he leaned in on the principles of natural rights, the purposes of government, and limited government. These principles were important to Madison because they protected individual liberty. His ideas were heavily influenced by the ideas of Enlightenment philosopher, John Locke.

In his Second Treatise of Government (1689), Locke wrote that all humans  are in a state of nature, free and equal in their natural rights. For Locke, property was the most important natural right, and it included possessions but also most significantly a property in one’s person, labor, and rights. He wrote, “Yet every man has a property in his own person…The labour of his body, and the work of his hands.”

Government was established by common consent for the purpose of protecting a person’s property rights. He wrote, “The great and chief end, therefore, of men’s uniting into commonwealths, and putting themselves under government, is the preservation of their property.”

These Lockean ideas fundamentally shaped the Declaration of Independence in 1776. The Declaration lays down natural rights as the basis of self-government. It asserts that “all men are created equal,” and that they were “endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.” The Declaration also states the fundamental purpose of government is to protect rights. “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”

In 1792, these ideas continued to shape Madison’s thinking about American constitutionalism when he penned his “Property” essay. Locke clearly helped to influence Madison’s understanding of property as he argued that it included physical property, a person’s opinions, the right to have safety of one’s person, and an individual’s religious liberty. In fact, he described religious conscience as the “most sacred of all property.”

Importantly, while Madison had all of these conceptions of property, he thought that individuals had an inalienable property in their rights. “In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights,” he wrote.

Like Locke and the Declaration of Independence, Madison believes that government exists to protect inalienable rights especially property. He explains that a just government is one that protects rights, and, conversely, an unjust government violates those rights or fails to protect them adequately. Therefore, he attacks arbitrary government, which is the definition of tyranny. He writes,

Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own…That is not a just government, nor is property secure under it, where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties.

Madison continued to oppose many of the policies of the Washington and Adams administrations. He served as vice-president under Thomas Jefferson and helped to usher in the “Revolution of 1800,” in which they believed they restored republican limitations on the national government. Madison was elected president in 1808 and served two terms. While his administration reflected his republican ideals from his “Property” essay, he did eventually change his mind on certain centralizing policies he opposed in the early 1790s including signing the Second National Bank into law in 1816. Still, James Madison believed in a natural rights republic and constitutionally limited government throughout his entire life.

The Founders applied the principle of limited government in the Constitution and early republic. The national government had no authority to tax without consent or to take property without consent or compensation. The First Amendment prevented a national establishment of religion and protected religious liberty. George Washington set the great example of limited republican government when resigned from the presidency after two terms.

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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Principle of Making Personal Contracts

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Guest Essayist: James C. Clinger

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

Contracts are the promises that are made individually or collectively that are presumed to be legally enforceable. They are normally the product of negotiation and deliberation among parties regarding the mutual obligations that they accept voluntarily.[1] Not every agreement is a contract, and not every promise is legally enforceable, but contracts have become an essential means by which individuals can organize themselves and carry out personal and professional interactions, particularly with persons or entities with whom they have no personal or familial connection. The ability to make contracts, and the capacity and willingness for a neutral arbiter to guarantee that contracts will be enforced, became one of the critical developments that made long-term and long distance trade relations possible.[2] Contracts also became a building block of the modern corporation, which is often described today as a “nexus of contracts.”[3]

The freedom to make contracts and the confidence that contracts will be enforced cannot be taken for granted. Prior to the United States Constitutional Convention of 1787, many of the original thirteen states were actively undermining the enforcement of contracts among citizens. In most cases, the contracts that were threatened by state actions were concerned with debts. State legislatures enacted a number of laws which prevented creditors from collecting debts in the time frame stipulated in contracts. For this reason, many creditors looked to the federal government to curb state actions which threatened the execution of contracts. Congress, under the Articles of Confederation, provided in the Northwest Ordinance that in that soon to be developed territory stipulated “no law ought ever to be made, or have force in the said territory, that shall in any manner whatever interfere with, or affect private contracts or engagements, bona fide and without fraud previously formed.” [4] Notably the clause pertained only to “private” contracts that were already in existence.

At the Constitutional Convention, a stand-alone contracts clause was debated and ultimately rejected, but the Committee on Style inserted a general form of the clause within a section dealing with limits on state power, which the convention did approve.[5] The final language in Article 1, Section 10, reads as follows: “No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.”[6] The clause is sandwiched between other provisions that limit states’ ability to engage in diplomacy, affect international trade, or carry out monetary policy. There is no language limiting the clause’s application to private contracts, nor is the clause clearly limited to contracts that were “previously formed,” although the courts quickly established that state law could regulate future behavior that might otherwise be the subject of a contract. It should also be noted that the contracts clause does not forbid the federal government from “impairing the obligation of contracts.” In fact, the federal government may modify debt contracts very dramatically through bankruptcy laws, which were authorized explicitly by the bankruptcy clause in Article I, Section 8 of the United States Constitution.

The clause was applied in some early cases of the Supreme Court. In 1810, the Court ruled in Fletcher v. Peck that the state of Georgia could not revoke a previously issued land grant to private parties. This ruling established that the contract clause applied to both public and private contracts.[7] A few years later, the Court more clearly asserted the constitutional protection of contracting in the case of Dartmouth College v. Woodward. In this ruling, the Court held that a charter establishing and organizing a private academic institution could not be fundamentally changed by an enactment of the New Hampshire legislature.[8] This decision was not only significant because it defended the right of private parties to have their contracts respected, but also because it recognized that private associations and incorporated entities could be at least somewhat insulated from state government control.

In later cases, the Court made clear that the right to engage in personal contracts is not absolute. In Ogden v. Saunders, the Court ruled that the states could make laws affecting contracts as long as those laws had prospective effect.[9] Later, in Stone v. Mississippi, the justices ruled that the contract clause did not prevent states from exercising their police powers to protect health and morals.[10] This ruling was echoed in a twentieth century case, Home Building & Loan Association v. Blaisdell, in which the Court expanded that exception to include advancing public welfare through a redistribution of resources.[11] In recent years, some legal scholars have said that the federal Constitution’s contract clause has been eviscerated because the courts have ruled that its applicability is limited by so many public policy related exceptions.[12] Nevertheless, it should be noted that many state constitutions contain contract impairment laws which are still applied, often in legal challenges to legislative changes in public employee pension fund benefits.[13]

The freedom to contract and the expectation that contractual obligations will be enforced has been critical to American economic life since its founding. Courts have long been involved in the settling of contractual disputes, sometimes invoking the contract clause, but more often using common law principles or provisions of the Uniform Commercial Code, which every state has adopted. But the implications of the freedom to contract is not limited to economic matters. Contracts are involved in many forms of association,  including political organizations and civic and religious entities. Without protection for these contracts, these associations could not function effectively.

James C. Clinger, Ph.D., is an emeritus professor of political science at Murray State University. His teaching and research has focused on state and local government, public administration, regulatory policy, and political economy. His forthcoming co-edited book is entitled Local Government Administration in Small Town America.

[1]  Cornell Law School.   Legal Information Institute.  https://www.law.cornell.edu/wex/contract  Accessed August 12, 2023.   On the view that contracts should be seen essentially as promises, see Fried, Charles.   Contract as Promise: A Theory of Contracting Obligation. Cambridge, Mass.: Harvard University Press, 1981.

[2] Wallis, John Joseph.  “Institutions, Organizations, Impersonality, and Interests:  The Dynamics of Institutions.”   Journal of Economic Behavior & Organization 79 (1-2)

[3]  Jensen, Michael C., and William H. Meckling. 1976. “Theory of the Firm: Managerial Behavior, Agency Costs and Ownership Structure.” Journal of Financial Economics 3 (4): 305–60.

[4]  Northwest Ordinance.  Article II, Clause 5.   See also McConnell, Michael W. “Contract Rights and Property Rights: A Case Study in the Relationship between Individual Liberties and Constitutional Structure.” California Law Review 76, no. 2 (1988): 267–95.

[5]  Douglas W. Kmiec and John O. McGinnis, “The Contract Clause: A Return to the Original Understanding, 14 Hastings Const. Law Quarterly 5 (1987): 525-560.

[6]  United States Constitution, Article I, Section 10

[7]  Fletcher v. Peck.  10 US 87 (1810).   See also  Hobson, Charles F. 2017. “The Yazoo Lands Sale Case: Fletcher v. Peck (1810).”      Journal of Supreme Court History 42 (3): 239–55.

[8]  17 US 518. See also O’Kelley, C. R. T. (2021). What Was the Dartmouth College Case Really About? Vanderbilt Law Review, 74(6), 1645–1725.

[9] 25 US 518 (1827).

[10]  101 US 814 (1879).

[11]  290 US 398 (1934).

[12]  Ely, James W., Jr. “Whatever Happened to the Contract Clause?” Charleston Law Review 4 (2010): 371–94.

[13]  Hull, Bradley. 2015. “State Contract Impairment Clauses and the Validity of Chapter 9 Authorization.” Emory Bankruptcy Developments Journal 32 (1): 87–122.

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Principle of Money With Intrinsic Value and Standards of Weights and Measures, Printing Money

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Guest Essayist: Robert E. Wright

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

“And since a Plentiful Currency will be so great a Cause of advancing this Province in Trade and Riches…I cannot think it the Interest of England to oppose’ us in making as great a Sum of Paper Money here, as we, who are the best Judges of our own Necessities, find convenient. And if I were not sensible that the Gentlemen of Trade in England, to whom we have already parted with our Silver and Gold, are misinformed of our Circumstances, and therefore endeavour to have our Currency stinted to what it now is, I should think the Government at Home had some Reasons for discouraging and impoverishing this Province, which we are not acquainted with…” – Benjamin Franklin, A Modest Enquiry into the Nature and Necessity of Paper Currency, Benjamin Franklin, April 3, 1729.

For over half a century, the colonists living in mainland British North America sought a monetary system like that described by Benjamin Franklin in his 1729 Modest Enquiry into the Nature and Necessity of Paper Currency. In other words, they wanted their own “inside” money composed of paper “bills of credit” (fiat notes like today’s Federal Reserve notes) useful only in local trade and an “outside” money composed of full-bodied gold and silver coins (referred to collectively as specie) useful in international trade.

All the colonies eventually emitted fiat paper bills of credit but only the Middle Colonies of New York, New Jersey, Pennsylvania, Maryland, and Virginia managed to do so without causing massive inflation, which the colonists perceived as depreciation of the bills of credit in terms of the “outside” or “real” money, specie.

As with most things in life, too much of a good thing can lead to bad outcomes. The colonists wanted “inside” money because each unit of it  (confusingly, for us, called “pounds”) they emitted into circulation allowed the same amount of gold or silver to be used to purchase goods abroad. That helped the colony’s economy but only until all the specie had been exported. The effect of issuing more bills of credit after that point was to make each unit less valuable domestically – price inflation or currency depreciation depending on your perspective.

The northernmost and southernmost colonies greatly exceeded that break-even point because they found it easier to finance their many wars against the French, Spanish, and their American Indian allies by printing more inside money than by raising taxes. Double-digit inflation ensued, which injured the interests of creditors, the rich people who lent money. That is because the purchasing power of the depreciated money they were repaid with, even with single-digit interest paid in addition, was less than they expected.

Those rich lenders had the ear of policymakers in London, who in 1764 prohibited the colonists, even those in the Middle Colonies, from emitting any more bills of credit. This may have merely miffed the colonists had the restriction not taken place in the midst of a postwar economic downturn and a period of toughened trade restrictions that made it difficult for the colonists to trade enough with the right partners abroad to maintain sufficient amounts of specie in domestic circulation. Instead of inflation, the colonists suffered from massive deflation.

As a result, foreign and domestic trade decreased markedly, as did real estate prices. Interest rates increased on mortgages, when they could be had at all, because money was in such limited supply. Money matters became so desperate that squirrel scalp bounties began to circulate as cash in Bucks County, Pennsylvania and newspapers published odes to coins that colonists rarely saw in circulation anymore.

By 1765, borrowers began to default and lose all their property at sheriff’s sales. Many found themselves still owing money even after all their assets had been sold at low prices and ended up in debtors’ prison, where some died. The colonists pleaded for relief but instead the “Mother” Country implemented the Stamp Act, which imposed new taxes and threatened to denude the colonists of all their remaining specie.

The colonists successfully protested the Stamp Act but in the process initiated a series of increasingly violent conflicts that ended with the Declaration of Independence and Revolutionary War. The Americans funded much of the war effort with a new inside money called Continentals, issued far too many, and saw them depreciate in value, at first slowly but later essentially to zero. No longer constrained by British trade policies and with help from French infusions, specie again became the predominate form of money in America.

Yet Franklin and younger financially savvy policymakers, like Robert Morris, Thomas Willing, and Alexander Hamilton, knew that inside money could help to stimulate the economy, so long as it did not displace all of the specie once again. So they created new institutions, commercial banks, that issued two forms of inside money, deposits and notes, convertible on demand into a fixed amount of specie.

When the new Constitution was framed, the financiers managed to ban state governments from issuing fiat money but were silent about the new federal government’s power to issue it. For over a century, it did so only during major wars and afterwards withdrew it from circulation via taxes, as the Middle Colonies had done.

Before the Federal Reserve became operational in 1914, most money in America took the form of bearer or “cash” instruments like banknotes and specie coins, supplemented by money of account in the form of bank deposits transferable by check. Deposits could be tracked but the government rarely tried to access private bank records because of strong customs concerning confidentiality. Notes and specie provided anonymity and hence even stronger privacy protections.

From its inception, America defined its dollar in terms of specie, eventually settling, as most other nations did, on gold alone. Dollar denominated banknotes and deposits were not legal tender but convertible into legal tender coins on demand. They circulated because they were more convenient than coins but always could be exchanged for them.

Retail convertibility meant that international trade, not policymakers, determined America’s money supply. Gold flowed in when exports exceeded imports and out when imports outstripped exports. As explained by Scottish Enlightenment thinker David Hume and well understood by policymakers like Hamilton, the gold flows automatically adjusted the domestic money supply and interest rates towards more balanced international trade and long-term price stability.

During the New Deal of the 1930s, however, the nature of money changed dramatically in America, starting a process that culminated in the 1970s with the nation’s monetary system returning to its Revolutionary War roots, or in other words a fiat inside money delinked from specie and of constantly declining value.

Some dispute the Constitutionality of the current monetary regime, which simultaneously greatly diminished the privacy of bank accounts. A planned central bank digital currency (CBDC) threatens to end anonymous cash transactions entirely and wipe away the last legal vestiges of transaction privacy. Benjamin Franklin and the other Founders and Framers would not approve. Instead, they would urge moving back to the retail specie standard that the nation enjoined from its inception until the New Deal.

It will be up to the American people to push for a return to Constitutional money, though, because politicians dislike the constraints that come with linking the dollar to gold, or anything else, like Bitcoin, in relatively fixed supply. Unlike the statesmen of the founding generations, partisan policymakers today want to borrow and spend so they can appear to help some people without immediately increasing taxes on others. In the process, though, they run huge deficits that have compounded over the last few decades into a massive national debt that would be impossible with a gold-linked dollar.

Robert E. Wright is a Senior Research Fellow at the American Institute for Economic Research. He is the (co)author or (co)editor of over two dozen major books, book series, and edited collections, including AIER’s The Best of Thomas Paine (2021) and Financial Exclusion (2019). He has also (co)authored numerous articles for important journals, including the American Economic Review, Business History Review, Independent Review, Journal of Private Enterprise, Review of Finance, and Southern Economic Review. Robert has taught business, economics, and policy courses at Augustana University, NYU’s Stern School of Business, Temple University, the University of Virginia, and elsewhere since taking his Ph.D. in History from SUNY Buffalo in 1997.

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Principle of Freedom of Speech in a Marketplace of Ideas

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Guest Essayist: Patrick M. Garry

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

The phrase marketplace of ideas has for more than a century been used to describe the nature and purpose of the First Amendment’s free speech protection. This phrase was famously articulated by Justice Oliver Wendell Holmes, Jr. in his dissenting opinion in the U.S. Supreme Court case of Abrams v. United States.

The issue in Abrams was whether the First Amendment protected Jacob Abrams from prosecution under the Espionage Act for distributing leaflets criticizing the dispatch of American troops to Russia and calling for a general strike in the U.S. The Supreme Court upheld Abrams’ conviction, ruling that his behavior posed a “clear and present danger” to the national security interests of the United States. Justice Holmes, however, disagreed. In a dissent that would later cast him as a defender of free speech and the First Amendment, Holmes wrote that the “best test of truth” of particular ideas is not the approval of government but the power of that speech “to get itself accepted in the competition of the market.”

Just because speech might be problematic or even contrary to government policy, it should not be prohibited by law, according to Holmes. Instead, the speech’s ability to gain approval in the social marketplace of ideas should determine its worth and staying power, Holmes argued. Only through the open competition of free and unhindered speech can society discover the truth necessary to govern itself. Since the people in a democratic society are the ultimate arbiters of social truth, there must exist a means by which the public can learn and acquire truth. As Justice Holmes recognized, and as courts have subsequently accepted, the best and perhaps only means to acquire truth is through the free exchange of ideas.

It would be nearly a half-century before the Supreme Court would accept the theory put forth by Justice Holmes in his 1919 Abrams dissent. Courts would come to value free speech as both a social and constitutional goal, and government restrictions on speech would be struck down as unconstitutional constraints on the marketplace of ideas. The constitutional protections of speech would not hinge on the government’s evaluation of the value or desirability of the speech.

The marketplace metaphor values free speech because only through open expression can society ever arrive at the social truths necessary for self-government. Consequently, to value truth is to value free speech; for without free speech, there can be no truth.

The enduring legacy of Holmes’ marketplace of ideas metaphor lay in its broadening of the justification for free speech. Prior to Holmes’ Abrams dissent, speech was looked upon as strictly an individual value. Thus, the only justification for protecting speech was the individual interest in being able to say whatever he or she wanted to say. At this point in America’s history, individual freedom to do or say whatever one felt like doing or saying was not highly valued. Social order and stability were far more valued, meaning the good of society prevailed over the interests of the individual. Survival and prosperity meant that individuals had to conform to societal norms.

Through his marketplace metaphor, Holmes demonstrated that free speech was not simply an individual value and that the reason for protecting free speech was not simply to grant unrestricted freedom to individuals. Instead, free speech was a necessary component to an effective and thriving society and nation. Without an open marketplace of ideas, the public could not come to a full and agreed upon appreciation of truth, which was the very foundation of self-government.

This marketplace principle can be violated today when unwanted speech is labeled “misinformation” and then censored.

Patrick M. Garry is professor of law at the University of South Dakota. He is 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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Principle of Individual Rights to Life, Liberty, and the Pursuit of One’s Own Happiness

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Guest Essayist: Gary Porter

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

“Life, liberty, and the pursuit of happiness.” As most Americans will recognize, these are words from the Declaration of Independence.

Dr. Larry Arnn, President of Hillsdale College, in his beautiful and insightful book: The Founders’ Key: The Divine and Natural Connection Between the Declaration and the Constitution and What We Risk by Losing It,” writes: “The Founders understood [the Declaration and Constitution] to be connected, to supply together the principles and the details of government, to be a persuasive and durable unity.”[i]

Most Americans have never encountered Thomas Jefferson’s first draft of the Declaration[ii] and are not aware the Declaration went through significant “wordsmithing” on its path to approval on July 4, 1776. In his draft, I particularly prefer Jefferson’s more powerful: “We hold these truths to be sacred & undeniable” to the final, “self-evident.” On the other hand, other sentences in Jefferson’s draft clearly benefited from the collaboration of the Congress, even while Jefferson later complained his work had been “mangled.” The judgment of historian Carl Becker was that “Congress left the Declaration better than it found it.”[iii]

“Life, liberty, and the pursuit of happiness.” Here Jefferson is of course referring to the “certain unalienable Rights” we have been “endowed by [our] Creator.” These natural, unalienable rights derive from natural law. In a 1775 newspaper essay entitled “The Farmer Refuted,” Alexander Hamilton explains the relationship between natural law and natural rights this way:

“To grant that there is a supreme intelligence who rules the world and has established laws to regulate the actions of his creatures; and still to assert that man, in a state of nature, may be considered as perfectly free from all restraints of law and government, appears to a common understanding altogether irreconcilable. Good and wise men, in all ages, have embraced a very dissimilar theory. They have supposed that the deity, from the relations we stand in to himself and to each other, has constituted an eternal and immutable law, which is indispensably obligatory upon all mankind, prior to any human institution whatever. This is what is called the law of nature … Upon this law depend the natural rights of mankind … The Sacred Rights of Mankind are not to be rummaged for, among old parchments, or musty records. They are written, as with a sun beam, in the whole volume of human nature, by the Hand of the Divinity itself; and can never be erased or obscured by mortal power.” (Emphasis added)

Indispensably obligatory? Sir William Blackstone explains why:

“Man, considered as a creature, must necessarily be subject to the laws of his Creator, for he is entirely a dependent being. A being independent of any other, has no rule to pursue, but such as he prescribes to himself; but a state of dependence will inevitably oblige the inferior to take the will of him, on whom he depends, as the rule of his conduct; not indeed in every particular, but in all those points wherein his dependence consists. This principle, therefore, has more or less extent and effect, in proportion as the superiority of the one and the dependence of the other is greater or less, absolute or limited. And consequently, as man depends absolutely upon his Maker for everything, it is necessary that he should in all points conform to his Maker’s will.”[iv]

If there was one political principle which was ubiquitous during the founding period, it was the natural, unalienable rights of the colonists. Early Americans almost never missed an opportunity to proclaim them. As Thomas West argues, “the founders shared a ‘theoretically coherent understanding’ of politics rooted in natural rights philosophy.”[v]

While Jefferson directly lists only three unalienable rights, other rights, both individual and collective, are hidden in plain sight. These include:

  • The right of a people “to dissolve the political bands which have connected them with another.”
  • The right “to alter or to abolish [an old government], and institute new government.” (Note: this right can also be seen as a duty!)
  • The right to secure their unalienable and civil rights through the institution of government.
  • The right to delegate power to government, through the people’s consent.

We must also note that Jefferson’s use of “the pursuit of happiness” is unusual. The normal “trio” of essential rights was “Life, Liberty and Property.” We find property mentioned in most “rights” documents from the founding period: “pursuit of happiness” is an outlier. John Adams, in A Defence of the Constitutions of Government of the United States of America (1787), reminds us:

“Property is surely a right of mankind as really as liberty.…The moment the idea is admitted into society, that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. If “Thou shalt not covet,” and “Thou shalt not steal,” were not commandments of Heaven, they must be made inviolable precepts in every society, before it can be civilized or made free.”

But as Thomas Paine warns us:

“[P]roperty will ever be unequal …. Industry, superiority of talents, dexterity of management, extreme frugality, fortunate opportunities, or the opposite, or the means of those things, will ever produce that effect, without having recourse to the harsh, ill-sounding names of avarice and oppression; and besides this there are some men who, though they do not despise wealth, will not stoop to the drudgery or the means of acquiring it, nor will be troubled with it beyond their wants or their independence; while in others there is an avidity to obtain it by every means not punishable; it makes the sole business of their lives, and they follow it as a religion. All that is required with respect to property is to obtain it honestly, and not employ it criminally; but it is always criminally employed when it is made a criterion for exclusive rights.”[vi]

Is there a relationship between property and other rights? To James Madison there certainly was: “In its larger and juster meaning, it [property] embraces every thing to which a man may attach a value and have a right; and which leaves to everyone else the like advantage… In the latter sense, a man has a property in his opinions, and in the free communication of them. He has a property of peculiar value in his religious opinions, and in the professions and practice dictated by them. He has a property very dear to him in the safety and liberty of his person. He has an equal property in the free use of his faculties and free choice of the objects on which to employ them. In a word, as a man is said to have a right in his property, he may be equally said to have a property in his rights.”9 Madison then explains that “conscience is the most sacred of all property … more sacred than his castle.”[vii]

With “property” aside, the unalienable rights of Life and Liberty are relatively easy to understand, but a right to “pursue happiness” begs further explanation.

In his First Inaugural Address, George Washington explained: “There exists in the economy and course of nature, an indissoluble union between virtue and happiness.” Jefferson would agree. But perhaps we should first clarify what the pursuit of happiness did not mean. To America’s founders, it was not the pursuit of licentiousness, the pursuit of base pleasure or the pursuit of wealth for wealth’s sake. John Locke warns us: “mistake not imaginary for real happiness”[viii]

“[T]he “pursuit of happiness” as envisaged by [John Locke] and by Jefferson was not merely the pursuit of pleasure, property, or self-interest (although it includes all of these). It is also the freedom to be able to make decisions that result in the best life possible for a human being, which includes intellectual and moral effort. We would all do well to keep this in mind when we begin to discuss the “American” concept of happiness.”[ix]

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 periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter @constitutionled.

[i] Larry Arnn, The Founders’ Key; The Divine and Natural Connection Between the Declaration and the Constitution and What We Risk by Losing It, Nashville, 2012, p.11.

[ii] https://founders.archives.gov/documents/Jefferson/01-01-02-0176-0004.

[iii] Carl Becker, Declaration of Independence, New York, 1922, p. 209.

[iv] Sir William Blackstone, Commentaries on the Laws of England, Section 2, Of the Nature of Laws in General, accessed at: https://www.laits.utexas.edu/poltheory/blackstone/cle.int.s02.html.

[v] Thomas West, The Political Theory of the American Founding: Natural Rights, Public Policy, and the Moral Conditions of Freedom, 2017.

[vi] Thomas Paine, Dissertation on First Principles of Government, 1795.

[vii] Kurland, Philip B. The Founders’ Constitution. Vol. 1. Chicago , IL: Univ. of Chicago Pr., 1987, p.598.

[viii] John Locke, An Essay Concerning Human Understanding, 1689, accessed at https://oll.libertyfund.org/title/locke-the-works-vol-1-an-essay-concerning-human-understanding-part-1.

[ix] Anonymous, accessed at https://www.pursuit-of-happiness.org/history-of-happiness/john-locke/.

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Principle of Individual Free Enterprise

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Guest Essayist: Andrew Langer

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

The essence of the American Dream lies in the belief that every individual, irrespective of their background, has the opportunity to succeed based on their talents, abilities, and hard work. A central driver of this dream is the principle of individual free enterprise, a system where businesses are free from excessive government interference, and individuals have the right to use their resources to create, innovate, and grow.

The beauty of individual free enterprise is that it unleashes the inherent potential within each of us. It allows an individual with a great idea to take that concept, build upon it, and bring it to the marketplace. It encourages creativity, fosters competition, and drives innovation. In this arena, an entrepreneur’s vision can be actualized, and dreams can truly come alive.

The American Dream, therefore, can be aptly described as the Entrepreneur’s Dream. It is a dream that does not discriminate based on race, color, or creed, but instead extols the resilience, tenacity, and spirit of individuals who are willing to take risks and work hard to realize their visions. It is the dream of creating something that can not only change an individual’s life but potentially impact the world.

The cornerstone of the American dream, the pursuit of happiness, is intrinsically linked to the principles of private property rights and individual free enterprise. Rooted in the United States Constitution and the Bill of Rights, these tenets have been the lifeblood of our nation’s prosperity and ingenuity for centuries. Understanding the interconnectedness of these concepts and their critical importance is paramount to preserving the spirit of liberty that fuels American progress.

The right to “pursue happiness” is not merely a poetic phrase; it is the Declaration of Independence’s embodiment of the American dream, anchoring the pursuit of personal fulfillment and prosperity to the soul of the nation. Rooted in the Enlightenment philosophy of John Locke, the Founding Fathers believed that government’s primary role was to safeguard the natural rights of its citizens, granting them the autonomy to seek their own path to happiness. This novel notion freed the American people from the chains of monarchical rule and ushered in a new era of self-determination, where individuals were encouraged to chart their destinies with vigor and determination.

Yet, for this dream to thrive, we must create and maintain an environment conducive to entrepreneurial growth. An essential ingredient of this environment is a regulatory and policy framework that facilitates rather than hinders enterprise. The government’s role should be to provide a stable, predictable legal framework that protects property rights, upholds the rule of law, and maintains a level playing field.

The concept of individual free enterprise, which underpins the American economic system, complements the right to pursue happiness perfectly. Free enterprise embodies the principles of economic freedom, private property rights, and voluntary exchange. By unleashing the entrepreneurial spirit of the American people, it facilitates the pursuit of happiness on an unprecedented scale. Indeed, the Founding Fathers understood that the realizations of one’s dreams and aspirations were inextricably tied to the freedom to engage in commerce and create wealth.

At the core of the Constitution’s protection of private property rights is the Fifth Amendment, which states, “nor shall private property be taken for public use, without just compensation.” The Founding Fathers understood that private property is the bedrock of personal liberty and economic growth. It is a tangible manifestation of an individual’s labor, ingenuity, and ambition; it fuels motivation and contributes to societal development. Moreover, the right to private property extends beyond the mere possession of physical goods to encompass intellectual property, businesses, and even ideas.

Inextricably linked to the notion of private property rights is the concept of individual free enterprise. This principle is the foundation upon which America’s economic success has been built. Free enterprise allows individuals to use their private property—whether it be their labor, capital, or ideas—to create value, compete in the marketplace, and achieve their own version of the American dream.

These concepts are not separate entities, but rather two sides of the same coin, each strengthening and reinforcing the other. The security of private property rights fosters an environment conducive to free enterprise, where individuals are more inclined to take risks, innovate, and invest, knowing that their efforts and resources are safeguarded. Similarly, free enterprise, through its production of wealth and opportunities, allows for the further accumulation and managing of private property.

Another critical factor is the societal attitude towards failure. In a true free enterprise system, failure is not a stigma but a stepping stone toward success. It is through trial and error that entrepreneurs refine their ideas, hone their skills, and ultimately succeed. A culture that encourages risk-taking, celebrates entrepreneurial spirit, and sees failure as a learning opportunity is one that will generate more innovation and prosperity.

Education also plays a significant role. Equipping individuals with the knowledge and skills to start and manage businesses, understand market dynamics, and adapt to changing economic landscapes is vital. This isn’t merely about promoting business education but encouraging a mindset of creativity and problem solving.

However, it is essential to note that these principles do not exist in a vacuum. The government plays a crucial role in ensuring their existence and efficacy, providing a stable legal framework and enforcing the rules of the game. Nevertheless, the balance is delicate. Overreaching government intervention can stifle creativity, disrupt the natural mechanisms of the free market, and erode private property rights. Thus, the principle of limited government—another pillar of our constitutional order—is central to this discussion.

The government should avoid policies that stifle ingenuity or add unnecessary burdens to entrepreneurs. High taxes, excessive regulations, and restrictive labor laws can serve as barriers to entry, preventing new ventures from getting off the ground and stifling the creativity and dynamism that drive economic growth and job creation.

The connection between the Constitution’s protection of private property rights and individual free enterprise is a testament to the profound wisdom of our Founding Fathers. Their understanding of human nature, individual freedom, and economic principles enabled them to construct a system that has fostered unprecedented prosperity and liberty.

Today, as we face the challenges of an increasingly globalized and digital world, these principles are more important than ever. Protecting private property rights and promoting free enterprise will enable us to preserve individual liberty, spur economic growth, and maintain America’s position as a bastion of invention.

The success of free enterprise in America is rooted in the belief that individuals, not government, are best suited to determine their needs and aspirations. This laissez-faire approach to economic governance has unleashed an unparalleled era of prosperity, creating the world’s largest economy and improving the lives of countless citizens. The unyielding spirit of entrepreneurship, driven by the pursuit of happiness, has fostered a culture of risk-taking and relentless ambition that has propelled America to greatness.

Individual free enterprise embodies the principles of meritocracy, rewarding hard work and creativity while fostering competition. It allows individuals to utilize their unique talents and skills to create value for others and, in turn, realize their own dreams. By removing bureaucratic barriers, free enterprise empowers citizens to participate in an ever-changing economic landscape, ensuring that success is not predestined but earned through dedication and effort.

The right to pursue happiness, as written in the Declaration of Independence, and the ideal of individual free enterprise are intrinsically linked. Together, they form the bedrock of the American dream, empowering individuals to chart their own destinies, create prosperity, and leave a lasting impact on society. Embracing the principles of liberty and free enterprise ensures that the pursuit of happiness remains not just a mere aspiration, but a tangible reality for all American citizens, as it has been for centuries since the nation’s founding.

Andrew Langer is President of the Institute for Liberty, a Fellow with Constituting America, as well as Chairman and Founder of the Institute for Regulatory Analysis and Engagement. IFL is a non-profit advocacy organization focused on advancing free-market and limited government principles into public policy at all levels. IRAE is a non-profit academic and activist organization whose mission is to examine regulations and regulatory proposals, assess their economic and societal impacts, and offer expert commentary in order to create better public policies. Andrew has been involved in free-market and limited-government causes for more than 25 years, has testified before Congress nearly two dozen times, spoken to audiences across the United States, and has taught at the collegiate level.

A globally-recognized expert on the impact of regulation on business, Andrew is regularly called on to offer innovative solutions to the challenges of squaring public policy priorities with the impact and efficacy of those policies, as well as their unintended consequences. Prior to becoming President of IFL and founding IRAE, he was the principal regulatory affairs lobbyist for the National Federation of Independent Business, the nation’s largest small business association. As President of the Institute for Liberty, he became recognized as an 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.

Andrew has had an extensive career in media—having appeared on television programs around the world. From 2017 to 2021, he hosted a highly-rated weekly program on WBAL NewsRadio 1090 in Baltimore (as well as serving as their principal fill-in host from 2011 until 2021), and has filled in for both nationally-syndicated and satellite radio programs. He also created and hosted several different podcasts—currently hosting Andrew and Jerry Save The World, with long-time colleague, Jerry Rogers.

He holds a Master’s Degree in Public Administration from Troy University and his degree from William & Mary is in International Relations.

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Principle of Private Property Ownership of Land To Encourage Self-Reliance for Maintaining and Strengthening Individual Liberty and American Independence

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Guest Essayist: Joerg Knipprath

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

In 1785, in his book Notes on the State of Virginia, Thomas Jefferson wrote in Query XIX, “Those who labor in the earth are the chosen people of God, if ever he had a chosen people, whose breasts he has made his peculiar deposit for substantial and genuine virtue. It is the focus in which he keeps alive that sacred fire, which otherwise might escape from the face of the earth. Corruption of morals in the mass of cultivators is a phenomenon of which no age nor nation has furnished an example.” In similar tone, in a passage in a letter to John Jay that same year, Jefferson effusively tied together all of the notions American agrarians held dear: “Cultivators of the earth are the most valuable citizens. They are the most vigorous, the most independent, the most virtuous, & they are tied to their country & wedded to its liberty & interests by the most lasting bonds.” He repeated similar sentiments throughout his life.

Jefferson was not alone in these adulatory opinions. Americans, whose beliefs otherwise might be quite heterodox about the nature of virtue or the best government or economic system, broadly shared his views. Nor was this mindset restricted to Americans, who occupied—rather sparsely, on the whole—a large tract of land and whose nation was overwhelmingly agricultural. The French physiocrats of the mid-18th century endorsed agricultural production as the true measure of a nation’s wealth, and land combined with agricultural labor as its only source. Going back further, Aristotle had extolled the virtues associated with agrarian society. But it was Roman writers such as Cato, Cicero, and Virgil whose works most influenced Enlightenment agrarians. Roman republicanism exalted land ownership to the point that senators were formally prohibited from engaging in any but agricultural endeavors, a restriction the senators avoided through various artifices as Rome became a more commercial society. The ideal of the Roman statesman was told in the story of Cincinnatus, the nobleman who was called from his pastoral existence to lead Rome in a time of crisis, only to lay down his office and return to his small farm when the crisis ended. For Americans, the resemblance to George Washington was not a coincidence.

But the most immediate influence on Americans’ exaltation of the yeoman farmer was a school of British Whiggism, the so-called country party. The 17th-century political philosopher James Harrington had penned Oceana, his description of an ideal commonwealth based on roughly equal holdings of land by its citizens. The land must be enough, unencumbered by debts, to provide for himself and his family. Only in this manner could he avoid dependence on another, his would-be master. That independence was crucial to cultivating the virtue necessary for self-government. English essayists of the 18th century, such as John Trenchard and Thomas Gordon, writing in Cato’s Letters, and Henry St. John, 1st Viscount Bolingbroke, with whose works Americans were quite familiar, also advocated the necessary relationship among ownership of an adequate estate in land, independence, virtue, and liberty.

Perhaps the single most influential philosopher for Americans of the Founding was John Locke. As with other political principles, Locke’s ideas on property, virtue, and limited government resonated in Jefferson’s writings. Locke posited that God gave the world to mankind in common. But man had the right to his own labor and could claim as his own both the land with which he mixed his labor and the fruits of his labor in the crops the land produced. At least implicitly, this required a plentiful supply of land that would be available for future generations.

Not surprisingly, Locke’s views found favor among Americans, who saw a virtually limitless bounty of land in their world. Although some areas along the Atlantic seaboard were becoming more populated, it was always possible to decamp for a tract unsettled, at least by Europeans, just a few dozen miles farther west. Various plans of settlement were grounded in the easy availability of land. There was the almost feudal system of land ownership designed for the Carolinas by John Locke, the secretary for one of the proprietors of that colony. Fortunately, his Fundamental Constitutions were substantially amended by the proprietors and then suspended after two decades, in 1690. More consistent with Locke’s other writings was the project of the proprietor of Georgia, James Edward Oglethorpe, in 1733. Oglethorpe designed a plan of economic and social development founded on land grants of equal size. Acquisition of additional land by marriage or purchase was prohibited. Likewise, slavery was prohibited as immoral, but also to prevent the emergence of large plantations as had happened in other colonies.

There was plenty of land in Georgia, as well as in the country west of the Allegheny Mountains. But there was a catch. After the end of French rule in North America, the British government signed treaties with the Indians to end Pontiac’s Rebellion and issued the Proclamation of 1763 to prevent western settlement. Existing settlers were ordered to abandon their tracts. Americans considered this to be a blatant attempt to prevent an increase in the population. The Proclamation was immensely unpopular among all classes, from the land speculators and investors in land syndicates with their fortunes now at risk, to the settlers looking for cheap and plentiful land. It became a major contributor to the ill will emerging against the British government.

Once American independence was achieved, settlers poured through the mountain passes into the western lands of the states and then into the unorganized areas of the Old Northwest. The Confederation Congress adopted the Land Ordinance of 1784, drafted by Jefferson, and the implementing Land Ordinance of 1785 to survey the lands and prepare them for sale.

While the peace treaty with Britain opened up potentially vast tracts of land for sale or, more frequently, squatting, some of the most committed ideologues of American agrarianism were still ill at ease. In particular, the rise of manufactures and merchant commerce troubled them. They saw in England the fate that awaited Americans of future generations. As the population there grew and the supply of land became filled, people were forced into wretched conditions in cities to labor for others. Adam Smith had described their condition in 1776 in Wealth of Nations: Farming required a variety of knowledge and practical understanding; not so factory work. “The man whose whole life is spent in performing a few simple operations, of which the effects too are, perhaps always the same…has no occasion to exert his understanding …. He naturally loses, therefore, the habit of such exertion, and generally becomes as stupid and ignorant as it is possible for a human creature to become.” This was hardly the stuff of the virtuous and enlightened citizen, jealous of his liberty, but ready to sacrifice for the well-being of the community, the free yeoman farmer or artisan suited to self-government in a republic.

Jefferson needed no convincing. He agreed with Smith that the division of labor in the emerging capitalist manufacturing sector produced significant material benefits. But he was also convinced that the nascent banking system with its creation of debt, as well as the monotony of factory work, created a dependency that robbed ordinary citizens of the autonomy needed for republican government. Regardless of material wealth produced by manufacturers and “stock jobbers,” a nation of farmers was better suited for a republic. Writing in Notes on the State of Virginia, Jefferson declared, “Manufacturing, and its attendant commerce, as European evidence had so graphically shown, distorted relationships among men, bred dependence and servility, and spawned greed and corruption which became a canker on the society. A nation of farmers, on the other hand, each of whom owned his own plot of land, who was free and beholden to no one, would assure the preservation of those qualities on which the strength of a republic depended.”

It was important, therefore, to provide land for as many as possible, including future generations. Echoing Locke, Jefferson wrote in a letter to James Madison on October 28, 1785,

“The earth is given as a common stock for man to labor and live on. If for the encouragement of industry we allow it to be appropriated, we must take care that other employment be provided to those excluded from the appropriation. If we do not, the fundamental right to labor the earth returns to the unemployed… It is not too soon to provide by every possible means that as few as possible shall be without a little portion of land. The small landholders are the most precious part of a state.”

Jefferson’s advocacy for the Land Ordinances of 1784 and 1785 reflected his eagerness to promote widespread land ownership. But his most edifying moment was the stroke of good fortune in the form of the Louisiana Purchase of 1803. For a bargain price of $15 million, or an estimated $350 million in today’s money, the territory acquired from France almost doubled the size of the United States. More accurately, the United States acquired the exclusive right to deal with the American Indian tribes that occupied most of the land. While there were other benefits, commercial and military, sufficient to overcome whatever constitutional scruples President Jefferson voiced to others about his authority to make the treaty, he was most gratified that the purchase achieved his goal of plentiful land for his republic of farmers and artisans: “The fertility of the country, its climate and extent, promise in due season important aids to our treasury, an ample provision for our posterity, and a wide-spread field for the blessings of freedom.” By this action, he could assure himself, he had guaranteed a republican future for generations of Americans to come, where the plenitude of land made certain that no one would have to subject himself to exploitation or domination by another.

Whereas Jefferson returned to the theme of his republic of farmers and artisans in frequent correspondences, he was not a systematic theorist of American agrarianism. That description best fits John Taylor of Caroline County, Virginia. Taylor was a lawyer, planter, military officer, and politician. He engaged in scientific agriculture, becoming a leader in promoting crop rotation, and published pamphlets and a book about those endeavors. He also wrote several books about political economy and the connection among land ownership, private happiness, independence defined as republican self-government, liberty, a limited and decentralized political system, division of political powers, and the laissez-faire economics of a free market. He vigorously opposed wealth and political power from the emerging capitalist manufacturing enterprises fueled by burdensome protective tariffs. But his most fervent denunciations were of banks, the paper issued by them unbacked by sufficient specie, and their practice of patronage and lobbying which according to Taylor, secured them unnatural privilege and wealth.

Taylor’s five books, especially his 1814 work, Inquiry into the Principles and Policy of the Government of the United States, brought philosophical discipline to the agrarian mythos among Americans. His contributions to political theory have been declared among the best that Americans have produced. Taylor’s adoration of agrarian republicanism at times took on a religious tone. He tied the story of the Garden of Eden to an agrarian social order and was convinced that an agrarian republic would allow man to regain his lost paradise.

Agriculture provided freedom which, in turn, produced private happiness. With family roots in the land, social organizations could develop organically, and people would enjoy true community through friendship, love, religion, education, and leisure. As well, agriculture provided the independence needed for republican self-government and the resulting public happiness created by wise laws. Manufacturing and capitalism had the opposite effect. In language reminiscent of Adam Smith, and to a degree of Karl Marx, Taylor denounced the emerging factory system as degrading human nature by destroying man’s freedom and happiness. The laborer was nothing more than a wage slave, paid a wage that supported him for that day and left no money for savings and improvement of his condition. Capitalists got the laborers to work for them but did not reward their efforts in commensurate manner. Like Smith and the French physiocrats, Taylor believed that true wealth ultimately was derived through the profits from land. Capitalism robbed that wealth from farmers and workers through tariffs and banks, and substituted paper wealth for true prosperity.

In all societies, some groups or classes dominate the exercise of political power at a given time. In a republic, a landed gentry was best. Perhaps not coincidentally, Taylor was among the landed gentry exercising political power in Virginia. Admittedly, a landed gentry had a degree of inherited power. The disparity in wealth and power among the agrarian class was tolerable, because these resulted from working the land. The broad availability of land and the nature of agricultural work would keep such differences within appropriate limits. On the other hand, a “paper system” of banking and commercial speculation created exorbitant wealth dangerous to society. Such a paper aristocracy relied on patronage and on taxation of productive farmers and laborers to maintain itself.

Taylor’s acceptance of inequality of landed wealth as sufficiently innocuous not to threaten personal liberty or republican self-government touched on a ticklish point for American agrarians. If republican government depended on broad participation by a politically fit and independent people, exercising their freedom through their connection with the land, was it not obligatory on republican government to assure broad equality in land ownership? Those who wrote passionately about the republic of yeoman farmers and artisans inevitably had significant land holdings themselves. Taylor, for example, at one point owned three plantations in Virginia and thousands of acres of western lands, so there was a limit to how far he was willing to press agrarian fundamentalism. There was the scent of self-interest in their discussions when they opposed proposals to redistribute land through “agrarian laws.” The only estates that were redistributed were those seized from Loyalists during the Revolutionary War, and even those were generally sold to purchasers of substantial means, often for speculation.

The opposition to such redistribution was broad and deep among those who determined policy. Jefferson may have been a supporter of the idea of equality in landed estates, but was less enthusiastic about redistributive laws. As he wrote in a letter to Joseph Milligan on April 6, 1816, “To take from one, because it is thought his own industry and that of his fathers has acquired too much, in order to spare to others, who, or whose fathers, have not exercised equal industry and skill, is to violate arbitrarily the first principle of [political] association, the guarantee to everyone the free exercise of his industry and the fruits acquired by it.”

Madison devoted considerable attention to the matter in the debates over the Constitution. He was strongly critical of the more enthusiastic exponents of agrarianism and considered the whole doctrine potentially turbulent. At the Philadelphia Convention, Madison warned about the “leveling spirit” manifested in the tax rebellion of farmers in western Massachusetts in 1786, known as Shays’ Rebellion:

“An increase of population will of necessity increase the proportion of those who will labour under all the hardships of life, & secretly sigh for a more equal distribution of its blessings. These may in time outnumber those who are placed above the feelings of indigence. According to the equal laws of suffrage, the power will slide into the hands of the former. No agrarian attempts have yet been made in this Country, but symtoms [sic], of a leveling spirit, as we have understood, have sufficiently appeared in a certain quarters to give notice of the future danger. How is this danger to be guarded agst. on republican principles? How is the danger in all cases of interested coalitions to oppress the minority to be guarded agst.?”

In short, as John Adams succinctly observed in 1790, “Property must be secured, or liberty cannot exist.” People were equal in that no one should be dependent on the will of another, and property, in particular land, made this independence possible. The way to such independence was not, however, through radical redistribution schemes but through the acquisition of plentiful land. Adams observed in a May 26, 1776, letter to James Sullivan:

“The balance of power in a society accompanies the balance of property in land. The only possible way, then, of preserving the balance of power on the side of equal liberty and public virtue is to make the acquisition of land easy to every member of society, to make a division of land into small quantities, so that the multitude may be possessed of landed estates. If the multitude is possessed of the balance of real estate, the multitude will take care of the liberty, virtue and interest of the multitude, in all acts of government.”

Americans at the Founding and for several generations thereafter saw themselves and their communities as naturally fit for republicanism precisely because they were “a people of property; almost every man is a freeholder.”

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

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Corruption and the Constitution: Principle of Constitutional Law and a Foundation of a Virtuous and Moral People

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Guest Essayist: Will Morrisey

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

Corruption means rottenness—disintegration caused not by external pressure but by some inner flaw. Political corruption occurs when a ruler, responsible for the country’s good, the good of the citizens, instead uses his authority to obtain a private benefit—something that seems good for himself, his family, his friends. Distrust and faction then weaken the body politic.

At the Constitutional Convention, the American Founders knew what corruption was. They had read the Bible which had taught them that corruption began with the human heart, that sin persisted in each of them, and that they might succeed in suppressing it. Each man at the Constitutional Convention was wary of the American people, their colleagues, and himself.

They had declared independence from the British Empire, a monarchic regime which had elevated political corruption to a routine practice, a way in which government ran. British monarchs exerted control over Parliament, the supposedly separate legislative branch, by offering key members positions within the royal administration, positions members could hold while continuing to sit in Parliament. The Founders saw a similar form of corruption in George III’s rule over the American colonies. Amongst the “long train of Abuses and Usurpations” designed to reduce the colonists to the status of subjects under an “absolute Despotism,” we find: “He has made Judges dependent on his Will alone, for the tenure of their Offices, and the Amount and Payment of their Salaries,” and “He has erected a Multitude of new Offices, and sent hither Swarms of Officers to harass our People, and eat out their Substance.” Such patronage bound public officials to the monarch, putting them at his service, turning them against governing for the good of the people governed.

George III was no anomaly. “All men having power ought to be distrusted to a certain degree,” James Madison warned, at the Convention. Corruption being ingrained in every human heart, the Framers of the United States Constitution never supposed it to be limited to regimes in which one person or a few persons ruled. Elected representatives in a democratic republic might engage in corrupt rule as readily as tyrants who call themselves kings or oligarchs who call themselves aristocrats. The small republics, the states whose people they represented at the Constitutional Convention had seen any number of such incidences. And the states, delegates agreed, were highly “democratical.”

In late June, the delegates were considering the legislative branch—instantiated by law in what would become Article I of the Constitution. How shall the members of the House of Representatives be paid? And will they be eligible for appointment to the executive branch? Money and power: indispensable to any government, the purpose of which is to secure the unalienable rights of life, liberty, and the pursuit of happiness, but also potentially the means of corruption, whereby the instruments of public good might be diverted to the acquisition of private wealth and aggrandizement.

When it came to paying Congressional representatives, all agreed that they should receive, in the words of one delegate, “adequate compensation for their services.” But who should pay them? To avoid the corruption that might creep in if they set their own salaries, some delegates argued that the states should determine them. Edmund Randolph of Virginia disagreed, arguing, “If the States were to pay the members of the National Legislature, a dependence [upon the States] would vitiate the whole system.” More specifically, Madison observed, this would make Senators “mere Agents and Advocates of State interests and views instead of being the impartial umpires and Guardians of justice and the general Good.” Alexander Hamilton concurred, distinguishing between “the feelings and view of the people” and “the Governments of the States,” as the latter might well be unfriendly to “the General Government.” Since “the science of policy is the knowledge of human nature” as it is seen in ruling and being ruled, and since such knowledge tells us that “all political bodies love power, and it will often be improperly attained,” state legislatures ought not be “the pay masters” of federal officials.

These arguments prevailed. Indeed, the state legislatures were to select the members of the United States Senate anyway, giving the state governments substantial influence on the Congressional conduct. Control over pay would have extended states’ control to the House of Representatives. Article I, section 6 stipulates that “Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law”—federal law—and “paid out of the Treasury of the United States.”

George Mason expressed no concern about corruption in the form of salaries, but the corruption itself worried and disgusted him. He had also become increasingly concerned about the ability of the states to defend themselves against encroachments by a newly empowered federal government, which, he worried, might ruin the states by corrupt means. When the question of making Congressional representatives ineligible for executive branch offices during their terms, and perhaps for a year after leaving office, he rose to say, “I admire many parts of the British constitution and government, but I detest their corruption.” Citing “the venality and abuses” of the British regime, he described the disqualification of Congressmen from executive offices as “a cornerstone of the fabric of the Constitution” and “the cornerstone on which our liberties depends.” Though mixed, the metaphor was ardently raised, for, whether offices are filled by the executive, as in Great Britain, or by the legislature, as in Virginia (“many of their appointments are most shameful”), “it is necessary to shut the door against corruption.” If legislators are allowed to take executive offices, “they [might] make or multiply offices, in order to fill them”—precisely what George III had done in North America. Mason identified ambassadorial posts as a rich field for such bestowals, as there are many small and obscure countries where a Congressman might find himself and his wife elevated to high and remunerative positions in exchange for a few votes on important national matters. Exactly this practice explains why “the power of the [British] crown has so remarkably increased in the last century.”

Against this, proponents of dual officeholding—in particular, James Wilson of Pennsylvania—maintained that disqualification would prevent good men from serving their country to the fullest extent of their abilities. Elected representatives are likely seen by their fellow citizens as men of virtue and ability. “This is truly a republican principle. Shall talents, which entitle a man to public reward, operate as a punishment?” In reply, Mason deprecated the thought. Can such men not be found outside Congress? Or, if Congressmen leave Congress for executive branch positions, are no good men available to replace them? “If we do not provide against corruption, our government will soon be at an end, nor would I wish to put a man of virtue in the way of temptation.”

Although he opposed Mason on the larger question of empowering the federal government, Hamilton sided with him here. “Our great error is that we suppose mankind more honest than they are.” But “our prevailing passions are ambition and interest.” Therefore, “when a member [of Congress] takes his seat, he should vacate every other office,” whether in the state or the federal government.

For his part, Madison disagreed with his future collaborator on The Federalist. Without the possibility of dual officeholding, he claimed, it will be hard to recruit qualified men for Congress. Further, disqualifying members won’t disqualify their cronies, so corruption will occur, anyway.

The majority of delegates found Mason and Hamilton persuasive. Article I, section 6 thus reads, “no Person holding any office under the United States, shall be a member of either House during his Continuance in Office.” To prevent legislators from creating new federal offices or raising the salaries of new ones and then quitting Congress to occupy one of them, “no Senator or Representative shall, during the Time for which he is elected,” be appointed to any such office (emphasis added).

But who shall appoint executive officeholders? If not the legislators or the president, and surely not the Supreme Court justices, then—who? Mason did not say. But his argument leaves only the states to perform this task. Mason had earlier argued that state legislatures’ election of U.S. Senators provided one means of self-defense for the states. In his mind, state legislative control of executive branch appointments might have been another, even as control of salaries had been, in the eyes of delegates who later joined him in becoming Anti-federalists. If so, the notion went nowhere, and the delegates eventually split the power between presidential appointment and Senatorial approval.

The argument over political corruption thus went well beyond the moral objection to corruption itself—ingrained in human nature, to be sure, but also susceptible to rational discipline and dilution. Corruption raised the overall question the delegates addressed, the question of the structure of the American regime. A republic, if you can keep it, Mr. Franklin famously said. But how to keep it? In shaping a government strong enough both to represent and to rule the people, to secure their unalienable rights and not to undercut them, the Framers sought to set down institutional barriers that would impede corruption, without pretending to remove it from the human heart.

Will Morrisey is Professor Emeritus of Politics at Hillsdale College, editor and publisher of Will Morrisey Reviews, an online book review publication.

 

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Principle of Appropriate Role and Purpose of Government Upon Protecting the People From Violence and Fraud

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Guest Essayist: Andrew Langer
Writing the Declaration of Independence, 1776. Benjamin Franklin, John Adams, and Thomas Jefferson working on the Declaration, a painting by Jean Leon Gerome Ferris, 1900

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

“I do believe that men of genius will be deterred unless possessed of great virtues. We may well dispense with the first characters when destitute of virtue I should wish them never to come forward–But if we do not provide against corruption, our government will soon be at an end: nor would I wish to put a man of virtue in the way of temptation. Evasions, and caballing would evade the amendment. Nor would the danger be less, if the executive has the appointment of officers. The first three or four years we might go on well enough; but what would be the case afterwards? I will add, that such a government ought to be refused by the people–and it will be refused.” – George Mason, Farrand’s Records, Federal Convention, Saturday, June 23, 1787, regarding provisions against fraud and corruption regardless of an invasion’s origin slowly eroding the United States.

In the true spirit of the American founding, George Mason’s assertion during the Federal Convention of 1787 deeply resonates with our contemporary political and social landscape. As he opined, a lack of virtue and unchecked corruption pose significant threats to the integrity and endurance of our government. Today, as we explore the principle of the appropriate role and purpose of government in protecting people from violence and fraud, we must bear these foundational truths in mind. We must also heed the wisdom of Mason, understanding the immense potential of the government as a force for good, but also the catastrophic possibilities when it strays from the path of virtue and integrity.

At its most fundamental level, the government exists to serve and protect its citizenry, a contract defined and limited by the United States Constitution. In this regard, the state’s role as a protector against violence and fraud becomes manifestly clear. This duty underscores the necessity for law enforcement agencies, a system of justice that ensures accountability, and regulatory mechanisms that guard against fraudulent actions. It is within these parameters that the government can and must act, without overstepping its boundaries and encroaching upon individual liberties.

Mason’s words have their roots in the prose written by his fellow Virginian, Thomas Jefferson, in the Declaration of Independence: “to secure… rights, Governments are instituted among Men” and is the very the heart of the United States’ philosophy and the very nature of democratic governance. These words are an affirmation of the contract between the governed and their governors, denoting a central truth of political theory and civil society: the state’s primary purpose is to protect the individual rights of its citizens.

Liberty has an intrinsic value, not as an abstract philosophical concept, but as a practical, living principle that shapes our everyday lives. The freedom to pursue our dreams, express our thoughts, associate with others, and engage in economic transactions without undue restraint is what gives life its richness and vitality. Yet, as vital as individual liberty is, it does not exist in a vacuum. Rights inevitably come into conflict, and when they do, a mechanism is needed to adjudicate those conflicts in a fair and just manner. This is where government steps in.

The role of government in protecting individuals from harm when individual rights conflict is a delicate balancing act. The government must tread carefully to prevent undue encroachments on individual liberty while simultaneously safeguarding the common good. It must protect individual rights without creating a lawless society where might makes right and the strongest prevail over the weakest. In doing so, it preserves the delicate balance between individual freedom and societal stability.

Consider the realm of property rights. Suppose one person’s use of their property causes harm to another’s property, such as pollution flowing downstream from a factory to a farmer’s field. Here, the rights of one individual or group, the factory owners, are in direct conflict with the rights of another, the farmers. If left unresolved, such conflicts can escalate, potentially leading to animosity, legal battles, and even violence.

In this instance, government, as the arbiter of rights and protector of the public good, has a vital role to play. By setting and enforcing regulations that prevent harm, it can ensure the factory owner’s right to conduct business without infringing on the farmer’s rights to a clean environment and productive land. In this way, the government upholds the tenets of liberty and justice for all, ensuring that no individual or group’s rights supersede another’s to the detriment of society.

All just law is rooted in this concept: where rights come into conflict, the party that is more aggrieved/harmed is supposed to be protected by the law. However, as the government steps in to mediate such conflicts, it must be careful not to overreach, a common pitfall in the quest to ensure harmony. Overreach can manifest in excessive regulation, infringing upon individual freedoms, and stifling economic prosperity. The challenge lies in striking the correct balance, respecting individual rights while preserving the common good.

Moreover, it is vital to remember that government itself is not immune to the temptation of overreach. This is precisely why the Founding Fathers, mindful of the potential for tyranny, insisted on a system of checks and balances to prevent any one branch of government from gaining too much power. It is incumbent upon us, as citizens, to remain vigilant against any such overreach, to question and challenge when necessary, and to insist on our rights and freedoms.

The delicate balance between liberty and security is a critical concern. Too much emphasis on security, and we risk suffocating individual freedom; too little, and we expose ourselves to the danger of anarchy and lawlessness. This tension forms the crux of the government’s challenge in protecting its people from violence and fraud while preserving the inalienable rights of its citizenry.

However, in today’s increasingly complex society, the government’s role is constantly being tested and redefined. As we delve further into the 21st century, we find ourselves grappling with unprecedented challenges—cybercrime, international terrorism, economic fraud on a massive scale—that blur the boundaries of the state’s role. In this context, it is crucial to reassert the primacy of integrity and virtue, two pillars Mason identified as essential to good governance. Without them, the government risks becoming a tool for the powerful, rather than an institution that serves its people.

Indeed, Mason’s concerns about corruption, temptations, and the erosion of government integrity remain as pertinent today as they were in the 18th century. The key to preserving the integrity of our government lies in adhering to the principles of transparency, accountability, and the rule of law. Our elected officials must remain accountable to the people they serve, demonstrating their commitment to these ideals in every decision they make. Additionally, the government’s regulatory role must be applied uniformly, without favor or prejudice, to ensure a level playing field for all.

Mason was also prescient in his prediction of how unchecked corruption could spell the end of a government. In this, we are reminded of the ever-present need for vigilance and active participation from the citizenry. The fight against corruption and fraud should not be left to the government alone. As citizens, we must hold our government accountable, demanding transparency and integrity in all its dealings. Furthermore, we should also resist the allure of complacency, instead embracing our civic duty to contribute to the democratic process, whether that be through voting, peaceful protest, or public discourse.

Mason’s words serve as a beacon, guiding us through the murky waters of modern governance. As we navigate the complexities of the 21st century, his emphasis on virtue, the prevention of corruption, and the importance of a government that serves its people rather than its self-interests continues to ring true. As we affirm the government’s role in protecting us from violence and fraud, we must also insist on its adherence to the principles that have defined our nation since its inception: liberty, integrity, and the unyielding pursuit of justice. Only by doing so can we ensure the preservation of our government and the endurance of America.

The role of government as the protector of individual rights when they come into conflict is an essential one. It balances the scale between liberty and societal stability, ensuring harmony among conflicting interests. Yet, it must perform this duty with due respect for the very rights it is sworn to protect, treading the line between regulatory oversight and individual freedom. As we navigate these complex issues, we must remember that preserving liberty is the ultimate goal, and a government that respects this will indeed be a government of the people, by the people, for the people.

Andrew Langer is President of the Institute for Liberty, a Fellow with Constituting America, as well as Chairman and Founder of the Institute for Regulatory Analysis and Engagement. IFL is a non-profit advocacy organization focused on advancing free-market and limited government principles into public policy at all levels. IRAE is a non-profit academic and activist organization whose mission is to examine regulations and regulatory proposals, assess their economic and societal impacts, and offer expert commentary in order to create better public policies. Andrew has been involved in free-market and limited-government causes for more than 25 years, has testified before Congress nearly two dozen times, spoken to audiences across the United States, and has taught at the collegiate level.

A globally-recognized expert on the impact of regulation on business, Andrew is regularly called on to offer innovative solutions to the challenges of squaring public policy priorities with the impact and efficacy of those policies, as well as their unintended consequences. Prior to becoming President of IFL and founding IRAE, he was the principal regulatory affairs lobbyist for the National Federation of Independent Business, the nation’s largest small business association. As President of the Institute for Liberty, he became recognized as an 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.

Andrew has had an extensive career in media—having appeared on television programs around the world. From 2017 to 2021, he hosted a highly-rated weekly program on WBAL NewsRadio 1090 in Baltimore (as well as serving as their principal fill-in host from 2011 until 2021), and has filled in for both nationally-syndicated and satellite radio programs. He also created and hosted several different podcasts—currently hosting Andrew and Jerry Save The World, with long-time colleague, Jerry Rogers.

He holds a Master’s Degree in Public Administration from Troy University and his degree from William & Mary is in International Relations.

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Principle of Strong Defense Capability To Protect the United States Against the Danger and Severity of Treason

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Guest Essayist: James P. Pinkerton

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

The new movie Oppenheimer offers us a window into the past: Into a key moment in the evolution of our national defense—and along the way, the film underscores the importance of fending off treason.

The authors of the U.S. Constitution, steeped as they were in history, knew all about the danger a nation faced from betrayal. In particular, the Catilinarian Conspiracy of the ancient Roman Republic loomed large in their minds, such that in the 18th century, “Catiline” became synonymous with “traitor.” Yet that same knowledge of history told the Americans that oftentimes in the past, mere dissent, peaceful and legitimate, had been labeled as treachery, the easier to crush the dissenters. So Article Three, Section Three, of the Constitution carefully circumscribes the offense; it declares that treason “shall consist only in levying War against [the United States], or in adhering to their Enemies, giving them Aid and Comfort.” Explaining this narrowly constructed language in The Federalist Papers, the essays aimed at encouraging the ratification of the Constitution, James Madison wrote, “Artificial treasons have been the great engines by which violent factions . . .  have usually wreaked their alternate malignity on each other.” That is, bad regimes were too easily tempted to label troublemakers as traitors. Seeking to reassure Americans that their rights and liberties would be protected, Madison pledged that the Constitution establishes “a barrier to this peculiar danger, by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the Congress, even in punishing it, from extending the consequences of guilt beyond the person of its author.” In other words, no overbroad definition of treason, and no collective punishment—no reigns of terror—for the acts of an individual.

The Constitution’s sense of moderation and due process informs the new movie about J. Robert Oppenheimer, director of the laboratory at Los Alamos, N.M., which developed the atomic bomb during World War Two. Oppenheimer was a scientific genius blessed with, in addition, great skills of organization and leadership. And he was also at least something of a communist. Thus the paradox in the film: Oppenheimer was needed for national defense, and he was also a potential security threat.

Beyond any reasonable doubt, the atomic bomb has been vital to defending America and protecting American lives. During World War Two, there was reason to believe that Nazi Germany was building an atomic weapon, and we had to have the bomb before Hitler. And even after that satanic regime was crushed, the other enemy, Japan, was still fighting, still killing Americans; the Okinawa campaign of April-June 1945 led to the death of some 12,500 GIs, as well as more than 110,000 Japanese. Yet despite these terrible defeats, Japan showed no inclination to give up its hopeless fight—until the U.S. used atomic bombs in August 1945. The carnage of Hiroshima and Nagasaki notwithstanding, Japan’s surrender saved hundreds of thousands of American lives, and many millions of Japanese lives. To illustrate the depths of the challenge the U.S. faced, in 1946, Karl Compton, president the Massachusetts Institute of Technology, reported on his conversation with a Japanese military officer who suggested that were it not for the intervening surrender, every Japanese would have died combating Americans. “We would have kept on fighting until all Japanese were killed, but we would not have been defeated,” the officer told Compton. The population of Japan at the time was 77 million.

So Oppenheimer was a hero of our national defense, just as Americans were heroes for mobilizing the resources needed to build the bomb. The Manhattan Project employed a total of 610,000 Americans. And some of those Americans were traitors, spies for the Soviet Union. Only after World War Two, with the onset of the Cold War against the Soviets, did we discover the espionage of such figures as Klaus Fuchs, David Greenglass, and Ted Hall. All had worked at Los Alamos under Oppenheimer.  Fuchs and Greenglass were tried, convicted, and imprisoned—but in both cases, for less than a decade (Fuchs served his time in Britain). As for Hall, he was stripped of his security clearance, but allowed to continue his career as a physicist.

This pattern of treachery, of course, reflected on Oppenheimer himself. In 1954, after a quasi-judicial proceeding lasting two months—complete with witnesses to be examined and cross-examined by lawyers—Oppenheimer was stripped of his security clearance. Yet even so, he was free to live his life; he wrote a book, lectured widely, toured the world (although not the USSR or any other communist country), and even received an award from President Lyndon Johnson in 1963. He died in 1967.

So we can see: The Constitution’s carefully crafted words about treason—and the overall tone of restraint applied to the charge—prevented any of these convicts and suspects from drastic punishments.  (Other spies of that era were treated more harshly.)

The freedoms accorded to us by the Constitution have made us prosperous, of course, in no small part because liberty makes the U.S. a magnet for talent from around the world—four of the top Manhattan Project scientists were born in Hungary, and none of them were spies. Those strengths give us the capacity to build wonder-weapons such as the atomic bomb. And yet that same freedom makes it harder for us to keep secret our secrets.

So this is our Republic: If we can keep it.

James P. Pinkerton worked in the White House domestic policy offices of Presidents Ronald Reagan and George H.W. Bush and in their 1980, 1984, 1988 and 1992 presidential campaigns. In 2008, he served as a senior adviser to Mike Huckabee’s presidential campaign. From 1996 to 2016, he was a Contributor to the Fox News Channel. A frequent contributor to Breitbart, The Daily Caller, and The American Conservative, he is a senior fellow at the America First Policy Institute. He is finishing a book on directional investment.

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Truman Lamers, Rhinelander, Wisconsin – 2025 Turner Maurice Gauntt, Jr. Exemplary Citizen Award Winner

Truman is an outstanding young leader who exemplifies excellence in academics, athletics, service, and character, which are the four cornerstone areas of this award. Maintaining a GPA of 4.563 at Wisconsin’s Rhinelander High School, earning AP Scholar with Honor distinction, and achieving a composite ACT score of 33, he has excelled as captain of the football, basketball, and track teams, earning All-Conference honors in each sport.

As a servant leader, he mentored younger students, served as Vice President of the National Honor Society, and volunteered through Key Club, Link Crew, and numerous community projects. Truman’s leadership fosters kindness, inclusion, and perseverance, and his openness about his own mental health challenges inspires others and breaks stigma. With a goal of becoming a psychiatrist, he seeks to help others as he has led and served throughout high school.

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Alexa McMillan, Woodbridge, Virginia – 2024 Turner Maurice Gauntt, Jr. Exemplary Citizen Award Winner

Alexa McMillan is a Senior from Woodbridge, Virginia, who enjoys studying the topic of mental health. She’s been a part of multiple clubs at her school such as the National Honors Society, Black Student Union, and she was co-president of her schools first ever NAMI (National Alliance on Mental Illness) On-Campus club. She loves working in her community and helping those around her to the best of her abilities. She plans on attending Randolph-Macon College to study Psychology with a minor in Black Studies, hoping to one day work with minority youth who struggle with their mental health. She loves playing and watching sports, creating art, and spending time outdoors in her free time. Alexa is so grateful for every opportunity that she’s been given and it couldn’t have been done without her amazing parents as well as God who has gotten her through it all.

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Parthiv Varanasi, Plano, Texas – 2023 Turner Maurice Gauntt, Jr. Exemplary Citizen Award Winner

Parthiv Varanasi is an 18-year-old who is graduating from Plano East Senior High School in Plano, TX. He plans to attend the University of Texas at Austin to pursue a double major in Mathematics and Economics and wants to work in international economic policy eventually. Outside of school, Parthiv has been playing tennis for 11 years competitively and has been on the varsity tennis team for four years, serving two of them as the captain of the team. He has also been a leader in his high school’s JROTC program for four years reaching the senior-most leadership position as the Battalion Commander. In the JROTC program, Parthiv led the Academic team and qualified for the JROTC Leadership and Academic Bowl International Championship. In his free time, he enjoys cooking and being active through running and rock climbing. During his time in high school, Parthiv helped raise over 15,000 pounds of food for homeless people, wrote a 4000-word essay evaluating the 17th amendment, and got selected to represent his peers and programs on the Principal’s Advisory Committee and the Student-Athlete Leadership Team.

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Principle of Unity as Americans, Limiting Faction Through Election Only of Representatives Who Understand and Will Uphold the United States Constitution

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Guest Essayist: Ron Meier

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

“They were likewise sensible that on a subject so comprehensive, and involving such a variety of points and questions, the most able, the most candid, and the most honest men will differ in opinion…Although many weeks were passed in these discussions, some points remained, on which a unison of opinions could not be effected. Here again that same happy disposition to unite and conciliate, induced them to meet each other; and enabled them, by mutual concessions, finally to complete and agree to the plan they have recommended, and that too with a degree of unanimity which, considering the variety of discordant views and ideas, they had to reconcile, is really astonishing…Reflect that the present plan comes recommended to you by men and fellow citizens who have given you the highest proofs that men can give, of their justice, their love for liberty and their country, of their prudence, of their application, and of their talents. They tell you it is the best that they could form; and that in their opinion, it is necessary to redeem you from those calamities which already begin to be heavy upon us all.” – John Jay, first Chief Justice of the United States Supreme Court, in his pamphlet, A Citizen of New York: An Address to the People of the State of New York, April 15, 1788.

“I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.”

The Oath of Office for elected and appointed officials of the United States government, including Congressional Senators and Representatives, states that they will “support and defend” and “bear true faith and allegiance” to the United States Constitution. Yet, the first time the Constitution was read aloud in the Congress was in 2011. Every two years since, at the beginning of each new Congressional term, members of the House from both parties, for most years since 2011, read aloud the Constitution.

Many Americans support Congress taking time (approximately 45-90 minutes) at the beginning of each Congressional session to read aloud the document they pledge to support; many other Americans consider the reading a waste of time. Videos of the readings seem to support the latter opinion. The only members of Congress in the Chamber during the reading appear to be those who read passages. If all members are not present following along, one can easily conclude that there is little to no value to the exercise.

In September, 1787, upon completion of the writing of the Constitution, a Mrs. Powel is reported to have asked Benjamin Franklin, upon exiting Independence Hall in Philadelphia, “Well, Doctor, what have we got, a republic or a monarchy?” Dr. Franklin replied “A republic, if you can keep it.”

The creation of the document, the Constitution, over the summer of 1787 involved much heated debate among the Convention’s delegates, focused primarily on the concern over the transition from a Confederation, where the states were relatively independent and sovereign, to a Representative Republic, which many feared would eventually become more authoritarian in practice, leaving the states with little to no sovereign powers. New York’s ratification was a concern.  Alexander Hamilton and John Jay of New York and James Madison of Virginia took it upon themselves to write the Federalist Papers for publication in New York newspapers to promote ratification by New York.

Jay also wrote a pamphlet entitled Address to the People of New York in April 1788, to further convince New York to ratify the Constitution. At the time of his Address, only six of the required nine states had ratified the Constitution. New York ratified the document in July, after the required nine had been achieved.

After the Constitution was ratified, the desired “more perfect union” quickly reflected Madison’s warning of faction, expressed in Federalist 10. Jefferson and Madison formed the Democratic Republican Party to oppose their perceived centralized national government tendencies of the Federalist Party of George Washington and John Adams. Over the past 231 years, the “more perfect union” has been under constant attack and counterattack by factions.

Some of today’s influential politicians believe that the 1787 Constitution no longer is relevant in a more pluralistic and modern nation than existed in 1787. Some others differ and believe that the core principles of the Declaration of Independence and the Constitution reflect the best aspirations of the nation formed in the 18th century, that those aspirations remain relevant today and must be retained.

So, many questions are worth asking. For example, if a member of Congress professes to be a Socialist and intends to propose legislation that makes the country more Socialist in nature, is he or she not “bearing true faith and allegiance” to the Constitution? If a member of Congress encourages universities to stifle the speech of members of opposition parties in the classroom and at on campus events, is he or she rejecting the First Amendment to the Constitution, not “supporting and defending” the Amendment? Many other similar questions can be posed.

All factions over the past 231 years have believed that they have better plans for how the American government should be structured. But, John Jay’s 1788 remarks on that topic are as relevant today as they were in 1788.

Jay also noted in his address to the People of the State of New York that:

“zeal for public good, like zeal for religion, may sometimes carry men beyond the bounds of reason. Remember that a power to do good, always involves a power to do harm. The objections made to it (the Constitution) are almost without number, and many of them without reason—some of them are real and honest, and others merely ostensible.”

He acknowledges man’s hubris, saying:

“Let it be admitted that this plan, like everything else devised by man, has its imperfections: That it does not please everybody is certain and there is little reason to expect one that will. It is a question of great moment to you, whether the probability of your being able seasonably to obtain a better, is such as to render it prudent and advisable to reject this, and run the risk.

They do not hold it up as the best of all possible ones, but only as the best which they could unite in, and agree to. What reason have we at present to expect any system that would give more general satisfaction?”

Today, some on both sides of the political divide suggest that we should have a Constitutional Convention. Jay addressed this also.

“Some will answer, let us appoint another Convention. This reasoning is fair, and as far as it goes has weight; but it nevertheless takes one thing for granted, which appears very doubtful; for although the new Convention might have more information, and perhaps equal abilities, yet it does not from thence follow that they would be equally disposed to agree. The contrary of this position is the most probable. You must have observed that the same temper and equanimity which prevailed among the people on the former occasion, no longer exists. We have unhappily become divided into parties.

Nor will either party prefer the most moderate of their adherents, for as the most staunch and active partisans will be the most popular, so the men most willing and able to carry points, to oppose, and divide, and embarrass their opponents, will be chosen. The same party views, the same propensity to opposition, the same distrusts and jealousies, and the same unaccommodating spirit which prevail without, would be concentrated and ferment with still greater violence within. As vice does not sow the seeds of virtue, so neither does passion cultivate the fruits of reason. To expect that discord and animosity should produce the fruits of confidence and agreement, is to expect “grapes from thorns, and figs from thistles.”

A discordant warning follows:

“But if for the reasons already mentioned, and others that we cannot now perceive, the new Convention, instead of producing a better plan, should give us only a history of their disputes, or should offer us one still less pleasing than the present, where should we be then? The old Confederation has done its best, and cannot help us; and is now so relaxed and feeble, that in all probability it would not survive so violent a shock. Then “to your tents Oh Israel!” would be the word.”

Jay concludes, saying:

“Let us also be mindful that the cause of freedom greatly depends on the use we make of the singular opportunities we enjoy of governing ourselves wisely; for if the event should prove, that the people of this country either cannot or will not govern themselves, who will hereafter be advocates for systems, which however charming in theory and prospect. are not reducible to practice. If the people of our nation, instead of consenting to be governed by laws of their own making, and rulers of their own choosing, should let licentiousness, disorder, and confusion reign over them, the minds of men everywhere, will insensibly become alienated from republican forms, and prepared to prefer and acquiesce in Governments, which, though less friendly to liberty, afford more peace and security.

Some of our Congressional Representatives and Senators may sincerely believe that a better government can be formed than the Republic under which we have prospered for 231 years. If so, then they should meet, not in a Constitutional Convention, but in study groups outside of Congress to discuss, plan, and test their ideas against history. In the meantime, their duty, expressed in their oath of office, is to better understand the Constitution under which they serve and to faithfully uphold its principles and laws. They should not propose legislation, nor ignore enforcement of existing legislation, that they can, and should, know is inconsistent with the Constitution to which they have obligated themselves to “bear true faith and allegiance” as well as to “protect and defend.”

Ron Meier is a West Point graduate and Vietnam War veteran. He is a student of American history, with a focus on our nation’s founding principles and culture, the Revolutionary War, and the challenges facing America’s Constitutional Republic in the 20th and 21st centuries.

Sources:

Bowen, Catherine.  Miracle at Philadelphia.  New York:  Little, Brown and Company, 1986

“I Do Solemnly Swear” – The Oath Of Office And What It Means | FedSmith.com

1787: Jay, Address to the People of N.Y. (Pamphlet) | Online Library of Liberty (libertyfund.org)

Order of States in Ratification of the US Constitution (thoughtco.com)

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Principle of Civil Over Military Authority: Protection Against Corruption, Foreign or Domestic Attempts To Divide and Destroy America

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Guest Essayist: Tony Williams

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

The way is plain, says the anonymous Addresser. If War continues, remove into the unsettled Country; there establish yourselves, and leave an ungrateful Country to defend itself. But who are they to defend? Our Wives, our Children, our Farms, and other property which we leave behind us. or, in this state of hostile separation, are we to take the two first (the latter cannot be removed), to perish in a Wilderness, with hunger, cold and nakedness? If Peace takes place, never sheath your Swords Says he until you have obtained full and ample justice; this dreadful alternative, of either deserting our Country in the extremest hour of her distress, or turning our Arms against it…what can this writer have in view, by recommending such measures? Can he be a friend to the Army? Can he be a friend to this Country? – George Washington, Speech to the Officers of the Army at Newburgh, in response to petitions for the United States military to protest in mutiny. March 15, 1783.

In late 1782, General George Washington was encamped with the army at Newburgh, New York and was deeply troubled. He had won the Revolutionary War with the stunning allied victory over the British at Yorktown and awaited word of a preliminary peace treaty that had been signed in France. However, the British still occupied New York City. Virginia revoked its approval of a five-percent tariff which meant that Congress had little funds. Therefore, it could not pay the officers and soldiers of the Continental Army who were increasingly disgruntled and ready to mutiny. Washington would soon face one of his greatest crises that would test his character and the survival of the republic.

Throughout the war, as Commander-in-Chief, Washington had scrupulously deferred to the civilian authorities of the states and the national Congress. Even when the states and Congress did not pay the troops or offer much-needed supplies, weapons, and money, the general always supported the republican government. He was often frustrated by the civilian government as it hampered the war effort, but he set the right precedents for civil-military relations within a republic.

On December 28, the officers sent a delegation from Newburgh to Congress with a threatening petition that read, “We have borne all that men can bear – our property is expended – our private resources are at an end, and our friends are wearied and disgusted with our incessant applications.” They warned, “Any further experiments on [our] patience may have fatal effects,” and hinted at an overthrow of Congress and civilian government.

A few politicians in Philadelphia saw an opportunity to use the anger to secure a more powerful central government rather than the weak government under the Articles of Confederation. For example, financier Robert Morris threatened to resign if Congress did not pass a tax to collect revenue to pay the soldiers. Representative Alexander Hamilton and others also wanted to use the threats of the officers to pressure Congress to adopt greater powers.

Despite the woeful financial situation, Washington did not stand alone in his support of Congress. His trusted friend and general of the artillery, Henry Knox, was a patriot who refused to take the bait of his fellow officers and defended the civilian government. Knox told them, “I consider the reputation of the American Army as one of the most immaculate things on earth. We should even suffer wrongs and injuries to the utmost verge of toleration rather than sully it in the least degree.”

In February, Hamilton tried to persuade Washington to join the scheme. Hamilton wrote, “The claims of the army urged with moderation, but with firmness, may operate on those weak minds . . . so as to produce a concurrence in the measures which the exigencies of affairs demand.” Washington would have none of it and responded that the consequences of a general mutiny against Congress “would at this day be productive of civil commotions and end in blood. Unhappy situation this! God forbid we should be involved in it.” He cautioned Hamilton that, “the army is a dangerous instrument to play with.”

In mid-March, General Horatio Gates, the hero of the American victory at the Battle of Saratoga in 1777, joined the conspiracy. Gates’ aide penned an address to American soldiers that fanned their anger towards Congress: “Faith has its limits, as well as temper; and there are points beyond which neither can be stretched.” Gates called the officers to a meeting to discuss the situation.

The rebellion against the government was averted by the character of George Washington, who dedicated himself to the republican principle of military deference to the civilian government. He learned about the Newburgh conspiracy and strode into the appropriately-named Temple of Virtue on the symbolically-fraught March 15—the Ides of March. In the Newburgh Address, he called on his soldiers to stop those who would “overturn the liberties of our country, and who wickedly attempt to open the flood gates of civil discord.”

Washington continued: “This dreadful alternative, of either deserting our Country in the extremest hour of her distress, or turning our Arms against it…what can this writer have in view, by recommending such measures? Can he be a friend to the Army? Can he be a friend to this Country?” His view of patriotism was rooted in Roman virtue—serving the republic, acting with reason over passion, putting country over himself, respecting civilian authority.

When the general’s patriotic appeal fell somewhat flat and his audience seemed unpersuaded, Washington made a dramatic appeal based upon his love of theater. He pulled out his glasses while stating, “Gentlemen, you will permit me to put on my spectacles, for I have not only grown gray, but almost blind, in the service of my country.” Most of the men present had never seen their general use eyeglasses; this simple action reminded the officers that Washington, like the men he led, had made great sacrifices for the cause of liberty. The men renounced their intent to overthrow Congress and pledged their support for the republican government.

Washington quelled the rebellion in the army and established the right precedent for civilian control of the military. He refused to become a Caesar who overthrew the Roman republic for his own glory and became a modern Cincinnatus who served the republic in its hour of need and returned to his plow. The Newburgh Conspiracy became Washington’s finest hour.

The history of American civil-military relations has seen its share of challenges from ambitious individuals. Perhaps the most notable and infamous case was President Harry Truman firing an insubordinate General Douglas MacArthur during the Korean War. In each challenge, the example laid down by Washington held, and the American republic continued to be governed by the constitutional rule of law and popular self-rule rather than military dictatorship.

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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Principle of Peace, Commerce and Honest Friendship With All Nations, Entangling Alliances With None

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Guest Essayist: Tony Williams
George Washington, presided over the first Continental Congress; Commander-in-Chief of the Continental Army during the American Revolutionary War; first President of the United States; painting by Gilbert Stuart, 1796.

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

“The great rule of conduct for us in regard to foreign nations is in extending our commercial relations, to have with them as little political connection as possible. So far as we have already formed engagements, let them be fulfilled with perfect good faith…Our detached and distant situation invites and enables us to pursue a different course. If we remain one people under an efficient government. the period is not far off when we may defy material injury from external annoyance; when we may take such an attitude as will cause the neutrality we may at any time resolve upon to be scrupulously respected; when belligerent nations, under the impossibility of making acquisitions upon us, will not lightly hazard the giving us provocation; when we may choose peace or war, as our interest, guided by justice, shall counsel. Why forego the advantages of so peculiar a situation? Why quit our own to stand upon foreign ground? Why, by interweaving our destiny with that of any part of Europe, entangle our peace and prosperity in the toils of European ambition, rivalship, interest, humor or caprice? It is our true policy to steer clear of permanent alliances with any portion of the foreign world; so far, I mean, as we are now at liberty to do it; for let me not be understood as capable of patronizing infidelity to existing engagements…Taking care always to keep ourselves by suitable establishments on a respectable defensive posture, we may safely trust to temporary alliances for extraordinary emergencies.” – George Washington, Farewell Address, first published September 19, 1796 in Claypoole’s American Daily Advertiser and given the date September 17, 1796.

When George Washington assumed the office of the presidency in 1789, the new republic faced a world fraught with imperial rivalries of the European great powers. This struggle played itself out in North America where the British ruled Canada and had troops stationed in forts along the northwestern frontier of the United States. The Spanish held Mexico, the West, and the Floridas. Meanwhile, the new nation soon went to war with several hostile Native American tribes on the frontier. Several powers, including the French, contended for the valuable sugar islands of the West Indies, or Caribbean. The British Empire excluded its former colonies from lucrative imperial trade.

Washington and his Cabinet along with members of Congress had to formulate the principles and policies of American foreign policy according to the dictates of constitutionalism, American ideals, and prudence. The outbreak of the French Revolution in 1789 and its expansionary wars compounded the difficulties of American diplomacy in the early 1790s.

President Washington had to navigate these shoals keeping in mind that the new nation was weak compared to the great empires. The United States had only a small army and not much of a navy. The economy was similarly weak as the country was locked out of former markets in the British West Indies and had to get its public credit in order by paying off the Revolutionary War debt. National security was a priority for the Washington administration but securing it would not be easy.

When the French revolutionaries sought to spread the fires of revolution to liberate the people of Europe from monarchy and aristocracy, Washington had to decide an appropriate response for the new nation. Washington and his Cabinet debated the issue and prudentially decided that it was ill-prepared for war and would not join the French despite their 1778 treaty from the American Revolution. The United States would remain neutral with a presidential Proclamation of Neutrality.

This led to an internal debate within the administration that was played out in essays published in partisan newspapers. Among them were Alexander Hamilton writing as Pacificus, who urged presidential prerogative over asserting neutrality, and James Madison writing as Helvidius, who thought the Congress had power over war and peace. The debate fueled the emerging contentious party system and split the administration into factions.

The Washington administration pursued a policy of trade and non-interference, but the British and French were at war and began seizing American vessels because they traded with each of the belligerents. Soon, Washington dispatched John Jay to Britain to resolve the seizure of ships, impressment of American sailors into the Royal Navy, and outstanding issues from the Revolutionary War including western British forts.

The resulting Jay Treaty benefited the United States, including some trade concessions in the West Indies, but it did not resolve many of the key issues including impressment. Moreover, it further inflamed partisan tensions among Americans and in Congress. Even worse, as it soothed relations with Great Britain, the French saw it as an Anglo-American alliance aimed against France. The French became more belligerent and ramped up their seizure of American vessels leading to an informal war that continued into the John Adams administration.

In 1795, the administration signed the Pinckney Treaty with Spain which extended the western boundary of the United States to the Mississippi River. Americans also won long-contested rights to free navigation of the Mississippi River to conduct trade.

By the end of his second term, President Washington could proudly survey the diplomatic accomplishments of his administration. From a position of relative weakness, he had averted war, successfully negotiated important treaties, established a strong presidency respecting foreign policy, and placed the country in a stronger position in a dangerous world. As he prepared to retire and worked on his Farewell Address to his fellow countrymen, he used his decades of experience as general and president to lay down certain principles of American foreign policy.

In his Farewell Address, Washington asserted that it should be the policy of the United States to “steer clear of permanent alliances with any portion of the foreign world.” He explained that it should be the principle of the United States to establish “peace, commerce and honest friendship with all nations, entangling alliances with none. The great rule of conduct for us in regard to foreign nations is in extending our commercial relations, to have with them as little political connection as possible.”

Washington promoted an enlightened and principled national self-interest in foreign relations. The United States would pursue its self-interest trading with other nations and forming temporary alliances in its interest. As the French example proved, a nation might be a friend at one point but could become an enemy at another. So, the United States would not form a permanent alliance that would bind it in an untenable situation. Instead, as with all nations, it would pursue its own interest.

However, Washington strikes an important chord of principled self-interest according to the founding ideals of an exceptional nation. In the Address, he speaks of “amity,” “justice,” “liberality,” “good faith,” and “harmony” as the principles guiding American relations with the other countries of the world. He proposed the idea that America should demonstrate a good example for the world. He wrote, “It will be worthy of a free, enlightened, and, at no distant period, a great nation, to give to mankind the magnanimous and too novel example of a people always guided by an exalted justice and benevolence.”

American foreign policy has changed over the last two centuries. Successive administrations through the nineteenth century generally followed Washington’s vision; however, during the twentieth century, President Woodrow Wilson helped commit the United States to “making the world safe for democracy” and exporting it abroad. Wilsonian internationalism meant that the United States would not merely be a “City Upon a Hill” for other countries to emulate its ideals but would take an active role in bringing about more democratic regimes. This expansive and controversial foreign policy was at odds with Washington’s vision in the Farewell Address. George Washington’s words and example reminds us to exercise justice and good faith toward other nations but also defending American national security with enlightened self-interest.

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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Principle of Maintaining Freedom and Independence Through an Armed Citizenry: Right To Protect One’s Person and Property by the Personal Keeping and Bearing of Arms

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Guest Essayist: Joerg Knipprath

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

“to preserve liberty, it is essential that the whole body of the people always possess arms.” – Richard Henry Lee, Federal Farmer XVIII, January 25, 1788.

A significant point of contention in the debates over the proposed United States Constitution was the maintenance of a peacetime army. Some stalwart opponents, like Eldridge Gerry of Massachusetts, wanted a ban on a “standing” army written into the Constitution. Others wanted the text to specify a maximum number and an expressly limited peacetime use, such as for border garrisons. In the minds of many Americans, standing armies were a direct and dire threat to the people’s liberties. Recalling their use by the last Stuart kings and the debate over them in the English Glorious Revolution of 1688, those Americans saw such an army as a tool of monarchical absolutism unfit for a republican system.

Instead, those critics wanted to rely on the militias of the states as the principal armed forces. Militia service long had been the mainstay of colonial self-government. It extended to all men able to bear arms, with some variations as to age and race. Universal service was a practical necessity to suppress insurrections and counter Indian raids. It also maintained the ancient republican connection between military service and qualification to participate in the community’s public affairs. Laws required individuals to keep arms sufficient to serve in the militia and, in some communities, to bear those arms while walking about.

The critics’ alarms about the Constitution were only magnified when they saw that the proposed charter also gave Congress the power to organize, arm, and discipline the militia, and to govern the militia employed in the service of the United States. They considered this to be an obvious attempt to deprive the states of control over their militias by establishing a highly trained national “select militia” composed of only a small portion of the whole eligible militia, in effect creating a standing army by another means. The distinction between the whole militia and a select militia was a common practice at the state level and was also followed by the federal government with the Militia Act of 1792. Although men fifty-five years old might be part of a state’s whole militia, they were unlikely to be called out for actual service at that age. Alternatively, critics charged that these provisions allowed Congress to neglect funding and training the militia altogether.

Supporters of the Constitution pointed to the Revolutionary War to expose the deficiencies in armament and training of the militias. General George Washington wrote the Continental Congress about his wartime experience with the militia:

“To place any dependence on the Militia, is, assuredly, resting upon a broken staff. Men just dragged from the tender Scenes of domestic life; unaccustomed to the din of Arms; totally unacquainted with every kind of military skill, which being followed by a want of confidence in themselves, when opposed to Troops regularly trained, disciplined, and appointed, superior in knowledge and superior in Arms, makes them timid, and ready to fly from their own shadows….”

The general tenor of Washington’s letter reflected a common critique. Alexander Hamilton, a former militia officer who also served in the regular Continental Army, was more generous in Essay No. 25 of The Federalist, but nevertheless made similar points:

“The American militia, in the course of the late war, have, by their valour on numerous occasions, erected eternal monuments to their fame; but the bravest of them know and feel, that the liberty of their country could not have been established by their efforts alone, however great and valuable they were. War, like most other things, is a science to be acquired and perfected by diligence, by perseverance, by time, and by practice.”

It was not enough for the Constitution’s supporters to point out the practical need for a regular army. Thoughtful critics might accept that, but still be alarmed by the danger an army posed to republican liberty. James Madison in Essay No. 46 of The Federalist sought to assuage those concerns:

“Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still, it would not be going too far to say, that the state governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence.”

Madison lay great stock in three facts, that Americans were armed, that they could form themselves into militias that would still be commanded by men chosen by them or their states, and that there existed subordinate governments—the states—to which they were more attached than to the national government. As he wrote, “Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.”

The critics were not persuaded. True, even if Congress set up a select militia, or, worse, if Congress refused to fund the militia, the states could still, under their reserved powers and general principles of federalism, maintain militias outside those parameters. That authority was eventually confirmed by the Supreme Court in 1820 in Houston v. Moore. The problem was what else Congress might do. After setting up a select militia, Congress could, the critics reasoned, then pass laws to disarm the rest of the citizenry. Something else was needed to protect the people’s liberties.

Madison in that same essay had noted the distinction between the American states and other countries. In the kingdoms of Europe with their military establishments, “the governments are afraid to trust the people with arms.” But something more concrete than reliance on the willingness of politicians to trust the people was needed. American politicians are not necessarily and inherently more respectful of the people’s liberties or less prone to oppressive actions than the European versions. If Congress and the President join to form a national tyrant, and the states have been rendered impotent, the people have the right to organize themselves to oppose that tyrant, just as the Minutemen did to King George and his regular army. As the Declaration of Independence averred, each person is endowed by the Creator with certain “unalienable rights,” and each person individually has the right to defend his life and liberty, even if the right as a practical matter sometimes might be carried out collectively. As concerns a tyrannical government, that right normally might be exercised through the state’s formal militia structure, but it does not depend on such a structure.

It is this right of self-defense exercised through a personal right to keep and bear arms that is reflected in the language of the Second Amendment. Supreme Court Justice Joseph Story made that point in a famous passage in his influential 1833 work on the Constitution. “The militia is the natural defence of a free country,” he wrote. “The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers.”

The right to life, including the right to defend oneself and others from those who wantonly pose an imminent threat to that right, is the most fundamental of all rights. No government may deprive an individual of that right, including the right of defense by means reasonable and commensurate to the threat. That right of defense extends to defense of the community. It is an individual right. While, in the latter case, it is usually exercised collectively, that is not a requirement and is not the basis of the right’s existence.

The connection between the individual nature of the right and its practical collective application when used in defense of the community is reflected in the words of the Second Amendment. As the late Justice Antonin Scalia explained for the Supreme Court in D.C. v. Heller, the right protected in the amendment’s operative clause is the individual right to keep and bear arms. The prefatory clause explains the concerns that drove the adoption of the amendment, the right of the people to organize themselves into a militia to resist tyranny even if Congress and supine state governments seek to disarm them.

The formulation of the Second Amendment through a prefatory and an operative clause is unusual among those in the Bill of Rights. But the approach was not uncommon in other settings. The original proposal by James Madison was clearer, but the definition of the right and its distinction from the concerns that gave rise to the amendment are similar: “The right of the people to keep and bear arms shall not be infringed; a well regulated militia being the best security of a free country ….”

Likewise, various state proposals to amend the Constitution followed this structure. Thus, the Virginia convention observed in relevant part on June 27, 1788, “That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit ….” Lest the formulation “the people” suggest only a collective right, that same term was used by the Virginia convention to define the right of the people to freedom of speech and of writing and publishing their sentiments. Yet such a right is clearly one that is exercised individually.

Other state ratifying conventions generally used the same structure for various proposed amendments. The report of the Pennsylvania Minority declared, “That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals, and as stranding armies in the time of peace are dangerous to liberty they ought not to be kept up ….”  The New York convention urged, “That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defence of a free State ….” [Emphasis in the original.]

What if there were no Second Amendment? Ultimately, that would make no difference. The right to life and self-defense is a fundamental or natural right conferred not by the Constitution as a matter of political grace but, in the language of the Declaration of Independence, by the Creator. It is a long-recognized right inherent in each human that even as fervent an apologist for powerful government as Thomas Hobbes accepted. As to the right to defend the community by organizing a militia, that is exactly what the colonists did at Lexington and Concord when the British sent a military force to seize American weapons. It was this engagement that started the Revolutionary War and led directly to the Declaration of Independence with its endorsement of armed resistance to tyrannical government.

The Supreme Court has embraced this reasoning as to state and local laws in cases such as McDonald v. Chicago. After all, the Second Amendment, like the rest of the Bill of Rights, only applies to the federal government. States and cities are, however, limited by the Fourteenth Amendment, which includes protection against legislative violation of fundamental rights of life, liberty, and property. The rights to individual and collective self-defense, including the right to keep and bear arms and the right to organize a militia, are integral to all three.

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

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Principle of One Nation Under God

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“Embarkation of the Pilgrims” by Robert W. Weir, 1844, United States Capitol Rotunda. John Carver, William Bradford, Miles Standish kneeling in prayer during their voyage to North America; open Bible, symbols within the painting of God’s promises.https://en.wikipedia.org/wiki/Mayflower#/media/File:Embarkation_of_the_Pilgrims.jpg

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

“One nation, under God, indivisible, with liberty and justice for all.”[i]

As most Americans know, our pledge to the American flag concludes with those words; where did that phrase come from?

We owe a minister named Francis Bellamy for the original inspiration for our pledge. Bellamy went to work for a Boston-based magazine: Youth’s Companion[ii] which was published from 1827–1929, an impressive 102-year run. Bellamy’s pledge was not exactly what we recite today: it originally read “my flag” without saying whose or what nation’s flag was the object of the pledge. That was rectified in 1932 when “of the United States of America” was substituted.

The phrase “under God” was added in 1954 by an act of Congress[iii] at the urging of President Dwight D. Eisenhower, who was responding to citizen petitions.

Is America in fact “one nation under God?” Well, certainly we are – in one respect we cannot not be; the sovereign God overlooks our affairs whether we would like Him to or not, whether we acknowledge his presence or not, whether we worship Him or ignore Him. In that sense the phrase is true and will always be true. But let’s pick the phrase apart a bit.

There is disagreement on this point today,[iv] some arguing that America is a country and/or a federation or union of sovereign states, and not a nation. Some point to the fact that the word “union” appears six times in the Constitution; “foreign nations” and “the law of nations” are the only use of the word “nation” and neither refers directly to the United States. But the evidence is strong that the most prominent of America’s Founding Fathers considered us a true nation.

After the Constitution went into effect with the ninth ratification, various Founding Fathers did refer to “the Union” in speeches and letters, but they frequently used the word “nation” as well.

Alexander Hamilton compared us with “other nations” almost incessantly as Washington’s Secretary of State. But his boss used the word nearly as much. In fact, George Washington can rightfully be called one of the strongest nationalists of the founding era.

Even before the Constitution was ratified, Washington, as a private citizen albeit a celebrated one, wrote a circular letter to the Governors of the several states. He ended the letter by stating:

“I now make it my earnest prayer, that God would have you, and the State over which you preside, in his holy protection; that he would incline the hearts of the citizens to cultivate a spirit of subordination and obedience to Government; to entertain a brotherly affection and love for one another, for their fellow citizens of the United States at large; and, particularly, for their brethren who have served in the field; and finally, that he would most graciously be pleased to dispose us all to do justice, to love mercy, and to demean ourselves with that charity, humility, and pacifick temper of the mind, which were the characteristicks of the divine Author of our blessed religion; without an humble imitation of whose example, …, we can never hope to be a happy Nation.”[v]

In his first inaugural address, drafted by his friend and new Congressman, James Madison, Washington said:

“No People can be bound to acknowledge and adore the invisible hand, which conducts the Affairs of men more than the People of the United States. Every step, by which they have advanced to the character of an independent nation, seems to have been distinguished by some token of providential agency.”[vi]

In his first Thanksgiving Proclamation as President, Washington began by insisting that “it is the duty of all Nations to acknowledge the providence of Almighty God, to obey his will, to be grateful for his benefits, and humbly to implore his protection and favors.” Wouldn’t it be fitting and proper to read President Washington’s Thanksgiving proclamation each year at church on that holiday?

To a Jewish congregation in Savannah, Georgia, President Washington wrote:

that Jehovah God, who had delivered the Hebrews from their Egyptian Oppressors … has been conspicuous in establishing these United States as an independent Nation.”[vii]

James Madison called us a nation;[viii] Thomas Jefferson,[ix] James Wilson,[x] John Adams and John Jay[xi] did as well.

There is no doubt America’s Founding Fathers viewed us as “a nation under God;” and for them, that meant the God of the Bible. Donald Lutz, professor of political science at the University of Houston, reports: “Scholars in recent years seem to have forgotten the degree to which religious ideas permeated the political world of the seventeenth and eighteenth centuries.”[xii]

Carl Sandburg, a Pulitzer Prize winning poet and author, once wrote: “When a nation goes down, or a society perishes, one condition may always be found; they forgot where they came from. They lost sight of what had brought them along.”[xiii]

I’ll conclude with the words of Ronald Reagan, who said: “If we ever forget we are one nation under God, we will be a nation gone under.”[xiv]

The United States can never be a nation that is not “under God.” We can either be a nation that acknowledges that fact and seeks God’s superintending care, one that humbly asks God to heal our land,[xv] or we can be a nation that insists on going it alone. The choice is ours.

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 periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

[i] https://www.ushistory.org/documents/pledge.htm.

[ii] http://youthscompanion.com/.

[iii] https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title4-section4&num=0&edition=prelim.

[iv] https://mises.org/wire/united-states-not-nation-problem-national-conservatism

[v] https://founders.archives.gov/documents/Washington/99-01-02-11404.

[vi] https://teachingamericanhistory.org/document/first-inaugural-address-gw/.

[vii] https://founders.archives.gov/documents/Washington/05-05-02-0279.

[viii] James Madison, Federalist #46: “Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.”

[ix] Thomas Jefferson, Notes in the State of Virginia: “God who gave us life gave us liberty. And can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are a gift from God? That they are not to be violated but with His wrath? Indeed I tremble for my country when I reflect that God is just, and that His justice cannot sleep forever.”

[x] James Wilson, Remarks at the Pennsylvania Ratifying Convention, November 26, 1787: “Governments, in general, have been the result of force, of fraud, and accident.  After a period of 6,000 years has elapsed since the creation, the United States exhibit to the world the first instance…of a nation…assembling voluntarily…and deciding calmly concerning that system of government under which they would wish that they and their posterity should live.”

[xi] John Jay, Federalists #2: “As a nation we have made peace and war; as a nation we have vanquished our common enemies; as a nation we have formed alliances, and made treaties, and entered into various compacts and conventions with foreign states.”

[xii] Donald S. Lutz and Jack Warren, A Covenanted People; The Religious Tradition and the Origins of American Constitutionalism. 1987.

[xiii] https://www.brainyquote.com/quotes/carl_sandburg_400796.

[xiv] https://www.reaganlibrary.gov/archives/speech/remarks-ecumenical-prayer-breakfast-dallas-texas.

[xv] See: 2 Chronicles 7:14.

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Principle of Establishing Justice Through the Rule of Law

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Guest Essayist: Joerg Knipprath

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

The principle of establishing justice through the rule of law is a means of guarding against gradual erosion of law and order into chaos to break down America’s system of self-governing. It guards against eventually ushering in tyranny to control the people rather than protect liberty by protecting the rule of law.

“…you seem…to consider the judges as the ultimate arbiters of all constitutional questions: a very dangerous doctrine indeed and one which would place us under the despotism of an Oligarchy. our judges are as honest as other men, and not more so. they have, with others, the same passions for party, for power, and the privileges of their corps. their maxim is ‘boni judicis est ampliare jurisdictionem,’ and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective controul. the constitution has erected no such single tribunal knowing that, to whatever hands confided, with the corruptions of time & party it’s members would become despots.” – Thomas Jefferson in a letter to William Charles Jarvis, Monticello, September 28, 1820.

The quoted passage by Thomas Jefferson addresses an issue that has been a repeated topic of controversy since the United States Constitution was proposed to the state conventions, namely, the role of the unelected federal courts in a system grounded in popular consent and self- government. Courts are supposed to apply the law prescribed by the people’s representatives but not be swayed by popular opinion in particular cases. An independent judiciary long has been recognized in Western constitutionalism as a fundamental component of any political system which takes seriously the individual liberties of its citizens. In ordinary criminal cases or civil suits the role of the courts as guardians of individual rights and as dispassionate decision-makers is indisputable. In cases of constitutional law and judicial review of the constitutionality of the acts of elected officials, the matter becomes more ambiguous.

Such cases are inherently political in that they present a challenge to self-government and call into question the particular competence of judges to resolve them. True, some topics, such as foreign affairs, are more political than others, such as specific guarantees of individual rights. But, as has been noted by various writers, each time a court strikes down a law, that action can be seen as a blow against self-government. When the Supreme Court decides a constitutional law case, the holding affects the entire country, not just the specific litigants. Moreover, those litigants often do not represent the opinions of a popular majority on the issue. To be consistent with the fundamental republican principle of majority rule, should unelected courts be making such decisions at all, then?

Abraham Lincoln made the point succinctly in his first inaugural address when he pledged non-interference with the specific decision in the Dred Scott case about Scott’s inability to sue for his freedom but also declared, “At the same time, the candid citizens must confess that if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.” Clearly, our constitutional system has decided that judges ordinarily should make such decisions, but the inherent contradictions among first principles created thereby do not disappear.

Republican government is premised on the idea that the people, or some portion thereof deemed sufficiently qualified, decide the important public matters. Unlike in a democracy, they do so through representatives selected by them directly or, in the original design for the Senate and the President, more circuitously. Should a 5-4 majority of the unelected Supreme Court effectively have the final word, or should a majority of the people’s representatives have the power to override the Court’s holding on the matter? This is a particular problem in that the Supreme Court is selected from a very small class in society, an elite whose cultural and political values differ sharply from those of the American people as a whole. Should federal judges be elected, rather than appointed? Indeed, considering the classic republican principle that the greater the power, the shorter the term in office in order to avoid oligarchic control, should federal judges serve very short terms before returning to their ordinary stations in life? In turn, would such alternatives adequately preserve the necessary independence of judges?

All these questions were raised by various Anti-federalist writers during the debate over the adoption of the Constitution. The potential life tenure of federal judges was a glaring red flag for critics of the proposed charter. As a textual matter, the Constitution fixes their tenure by “good behavior,” but that ambiguous concept itself was tied to the practice of impeachment. Because impeachment in England had come to be seen as a limited tool requiring something more than political disagreement or general unpopularity, the Constitution expressly provided specific, and quite restricted, grounds for removal of officers by that method, effectively creating “life tenure.” But Antifederalist attacks on the federal courts were not limited to the issue of life tenure. Although the Constitution is silent on the matter, the opponents soon focused on the perceived ability of the Supreme Court to sit in judgment of the constitutionality of the actions of the people’s representative in Congress and the state legislatures.

A very sophisticated attack on the Supreme Court appeared in 1787 and 1788 in various essays of Brutus, one of two pen names generally attributed to the New York judge, and eventual state chief justice, Robert Yates. Yates had been selected as one of New York’s three delegates to the Philadelphia Convention but, along with Judge John Lansing, Jr., had left that assembly early because he objected to the nationalizing tendencies he saw in the emerging draft. His essays were authoritative during the debates in the critical New York ratifying convention.

In Essay No. 11, published January 11, 1788, Brutus observed that Article III, Section 2, of the Constitution vests the power to determine all questions that may arise under the Constitution. He questioned whether that power would be used for the general good. He explained his concerns, “[I[n their decisions, they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or controul their adjudications. From this court there is no appeal. And I conceive the legislature themselves, cannot set aside a judgment of this court, because they [the judges] are authorised by the constitution to decide in the last resort.”

Brutus worried that the federal courts would interpret the Constitution’s often ambiguous language broadly in favor of the general government to the eventual “subversion of the legislative, executive, and judicial powers of the individual states.” Applying the history of the English court of exchequer, he charged that the courts would extend their jurisdiction and influence well beyond that understood at their creation. “Every body of men invested with office are tenacious of power; they feel interested, and hence it has become a kind of maxim, to hand down their offices, with all its rights and privileges, unimpaired to their successors; the same principle will influence them to extend their power, and increase their rights; this of itself will operate strongly upon the courts to give such a meaning to the constitution in all cases where it can possibly be done, as will enlarge the sphere of their own authority. Every extension of the power of the general legislature, as well as of the judicial powers, will increase the powers of the courts; and the dignity and importance of the judges, will be in proportion to the extent and magnitude of the powers they exercise. I add, it is highly probable the emolument of the judges will be increased, with the increase of the business they will have to transact and its importance.”

In Essay No. 15, published March 20, 1788, Brutus again addressed the danger to the people’s liberty and to the existence of the state governments from the lack of any control over the constitutional rulings of the Supreme Court. “There is no power above them, to controul any of their decisions. There is no authority that can remove them, and they cannot be controuled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.”

For Brutus, the solution would have been to make such Supreme Court rulings subject to review by the legislature, much as English court holdings often were subject to review by the House of Lords. “Had the construction of the constitution been left with the legislature, they would have explained it at their peril; if they exceed their powers, or sought to find, in the spirit of the constitution, more than was expressed in the letter, the people from whom they derived their power could remove them [through elections], and do themselves right; … A constitution is a compact of a people with their rulers; if the rulers break the compact, the people have a right and ought to remove them and do themselves justice; but in order to enable them to do this with the greater facility, those whom the people chuse at stated periods, should have the power in the last resort to determine the sense of the compact; if they determine contrary to the understanding of the people, an appeal will lie to the people at the period when the rulers are to be elected, and they will have it in their power to remedy the evil; but when this power is lodged in the hands of men independent of the people, and of their representatives, and who are not, constitutionally, accountable for their opinions, no way is left to controul them but with a high hand and an outstretched arm.” [Emphasis in the original.]

The convincing effect those and similar other critical essays Yates wrote had on New Yorkers finally prompted Alexander Hamilton to write a response published on May 28, 1788, just ahead of the meeting of the New York ratifying convention on June 17. Essay No. 78 of The Federalist is among the longest of the papers and the one most frequently cited by the Supreme Court. Hamilton agreed with Yates that the federal courts would interpret the Constitution, because the Constitution being law, it “is the proper and peculiar province” of them to do so. Because judges owed their powers to the Constitution, just as did the legislators, the courts would, and must, disregard statutes which conflicted with the fundamental law of the Constitution. Hamilton dismissed Yates’s contention that this implied a superiority of the judicial branch, claiming instead that “[I]t is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.” Thus, Hamilton laid the groundwork for an independent federal judiciary in matter of constitutional law.

As his quoted letter attests, Jefferson shared Yates’s concerns and discomfort about the federal courts, especially the Supreme Court’s power of constitutional judicial review. Jefferson believed that the rule of law and the fundamental structure of a government of divided powers created under the Constitution was best served under a “departmental theory” of final authority. While the Supreme Court might have the final say as to how the courts will decide cases, their opinions about the constitutionality of a co-equal branch’s acts, although entitled to respect, were not binding on those other branches. The remark from Lincoln’s first inaugural speech, quoted above, is an application of that theory. So is the admonition, perhaps apocryphal, attributed to President Andrew Jackson on the occasion of an unpopular opinion by Chief Justice John Marshall in Worcester v. Georgia, “John Marshall has made his decision, now let him enforce it.”

Hamilton was not insensitive to such criticisms in his essay. He adamantly insisted that the judges’ life tenure was necessary to preserve their independence. Still, the scope of the courts’ constitutional judicial review must be limited. He wrote, “To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; …” The rule of law demands that such rules be clear and constant, knowable, and predictably applied. This was particularly important with the Constitution, which was “law” because it was written. Therefore, it was the letter of the document, not some vague notion of its “spirit” that the courts must apply, lest their opinions become exercises of “WILL instead of JUDGMENT,” which would merely be the “substitution of their pleasure to that of the legislative body.” [Emphasis in the original.]

Moreover, courts could disregard only those statutes which were clearly unconstitutional.

“If there should happen to be an irreconcilable variance between the two [a statute and the Constitution], that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.” Using tortuous arguments to discover theretofore unknown penumbras and emanations from constitutional language, or investing that language with personal notions of good policy or better morality would not suffice.

Finally, Hamilton laid down a crucial limitation by specifying the object of constitutional judicial review. Judges must be independent and zealous protectors of liberty rooted in law. But there was a limit to judicial independence, lest it become itself a threat to republican rule. “This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors [tempers], which the arts of designing men or the influence of particular conjunctures sometimes disseminate among the people themselves; and which, though they speedily give place to better information and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.” Judicial review was to be conservative, in the sense of protecting the received constitutional order from the excesses of momentary popular passions as well as from “the cabals of the representative body.” That, too, is consistent with the order provided by the rule of law. It is also consistent with republican self-government, as it merely seeks to slow down a heedless rush to action by allowing for further reflection and the triumph of reason.

What is not consistent with republican self-government and legitimate Hamiltonian judicial review is when the judiciary assumes the role of constitutional innovator. For example, when the Supreme Court abruptly overturns long-settled and widespread laws that affect basic institutions of society or traditional social relations, the justices are exercising independence. But they are not guarding the liberty of individuals or political minorities from temporary majoritarian passion. They are, in effect, amending the Constitution by a simple majority vote of one branch of government composed of a few members enjoying life tenure, the branch that has no accountability to the public and is drawn from a very small elite. That is consistent with neither the stability and predictability associated with the rule of law nor republican self- government. In taking such actions, the Court assumes the role of a constitutional convention.

Relying on the postulate of popular sovereignty, Hamilton, Madison, and other supporters of the Constitution emphasized as a first principle the people’s right to change their constitutions at any time and for any reason. Such innovations should not be undertaken lightly, and at least as codified in Article V of the Constitution, require a difficult super-majoritarian process involving multiple governmental bodies, radically different from judicial constitutional amendment by a 5-4 vote.

There is much to admire in a culture which has preserved for so long an independent judiciary within its constitutional structure. One hopes that this remains the norm, and that voices who have suddenly now discovered a political advantage from changing the rules of the game will go unheard. The Supreme Court has warranted the respect it has enjoyed overall as an institution, because in most cases the justices have performed their roles with wisdom and sagacity. But they are political actors, and their judgment has not been infallible. To preserve that respect and the independence required to counteract majoritarian passions when the need arises, the Court is well-advised to stay true to its role as the guardian of the rule of law and the received Constitution, not as a constitutional lawgiver leading a compliant people.

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

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Principle of Representative Government Only Under Authority of the American People

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Guest Essayist: J. Eric Wise
United States Congress, House Floor, United States Capitol, Washington, D.C.

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

Almost 250 years ago, on December 16, 1773, American colonists dressed as Mohawk Indians dumped tea into Boston Harbor protesting under a rallying cry of “No taxation without representation.” We call this the Boston Tea Party.

23 years ago, in May of 2000 Washington, D.C. changed the design of its license plates replacing the words “Discover and Celebrate” with “Taxation Without Representation.” This memorialized D.C. residents’ grievance that they have no voting representatives in Congress.

Suffice it to say, the principle of representation is an enduring opinion that is at the heart of what it means to be an American. But like many such opinions that spring from what Abraham Lincoln called “the mystic chords of memory” does anyone really know, concretely, what it means?

To understand, perhaps it helps to think about concepts of sovereignty. For the most part after the end of the Roman Republic most of Europe was ruled by kings or emperors. They ruled on a religious, revealed, and practical basis known as divine right of kings.

Derived from the Bible and history, divine right of kings relied on the authority of Abraham over his children, the authority of anointed kings beginning with Saul and David, and the authority of Caesar over Rome and its dominions. A single person embodies the sovereign for subjects, and that person’s authority comes down from divinely sanctioned anointing, according to hereditary rules and conquest.

The Scottish protested the oppressions of the English king, Edward II. In the Declaration of Arbroath, the Scottish appealed to their own divine right of kings through conquest.

“The Britons they first drove out, the Picts they utterly destroyed, and, even though very often assailed by the Norwegians, the Danes and the English, they took possession of that home with many victories and untold efforts.”

Contradictions aside, that was how most of Europe thought about the question of just government.

But did this mean they had no representation? To the contrary, when the English nobles at Runnymede in 1215 forced the king to sign the Magna Carta, representation in parliament became part of the English system of government though that system remained clearly under the notion of the divine right of kings. The French, whose monarchy was more absolute, had the Estates General, beginning in 1302 A.D. The German principalities of the Holy Roman Empire had the Imperial diet, as early as 777 A.D.

If there is any doubt about the compatibility of divine right of kings and representation note that the Mayflower Compact, organized to authorize the colonial pilgrims to frame “just and equal laws,” begins with the identification of the signers as “the loyal subjects of our dread sovereign Lord King James.”

But compatibility is not the same thing as perfection, and at some point after the Protestant Reformation, new ideas about the authority of men over their conscience in the concept of the “priesthood of every believer” [presbyterii fidelium] led to new ideas about the authority of men over their own government.

In Connecticut, in the 1600s, the Reverend Thomas Hooker established in his sermons consent as the basis of government rather than divine right of kings. “The foundation of authority is laid firstly in the free consent of people,” he propounded from the pulpit. And in 1639, he drafted the Fundamental Orders governing Windsor, Hartford and Wethersfield, the first charter government in the New World that did not appeal to the authority of a king for its basis in justice. Reverend John Wise of Massachusetts would preach and protest in 1687 against the imposition of taxation without representation. President Calvin Coolidge would later praise Reverend John Wise as an inspiration of the Declaration of Independence.

One should observe that the positions of Hooker preceded Thomas Hobbes’ theoretical writing on consent in Leviathan by more than 11 years, and John Locke’s theoretical writing on consent in Two Treatises by 50 years. Should anyone tell you the foundations of American notions of consent were dreamed up by theoreticians or first came to mind in 1776, correct them. Theory backfilled the practice and ethos that had taken root and was growing in America from the very start.

By the time the American Revolution rolled up on the English, Americans had been thinking about government and justice in terms of consent for more than 100 years. The Declaration of Independence reiterated and memorialized this, stating “Governments are instituted among Men, deriving their just powers from the consent of the governed.”

But consent requires renewal, and this implied that the practice of the colonists of electing their representatives would continue under the new forms of government of the new nation. Every election is a reflection of the principle of consent, which is not just compatible with consent but a microcosm of a broader conception of the universe. God chooses us; we choose our form of government; we choose to renew it through amendment of its form; we choose our representatives in our form of government.

J. Eric Wise is a partner in the law firm of Alston & Bird.

 

 

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Principle of Free, Fair, Independent Elections Involving Preservation of the Electoral College

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Guest Essayist: Tara Ross

 

Essay Read by Constituting America Founder, Actress Janine Turner

 

“[The President] will, under this Constitution, be placed in office as the President of the whole Union, and will be chosen in such a manner that he may be justly styled the man of the people.” – James Wilson, Speech at the Pennsylvania Ratifying Convention (December 4, 1787).

“It was also peculiarly desirable, to afford as little opportunity as possible to tumult and disorder. This evil was not least to be dreaded in the election of a magistrate, who was to have so important an agency in the administration of the government, as the president of the United States.” – Alexander Hamilton, Federalist No. 68

America’s founding generation gets a bad rap these days, and the presidential election system they created, if anything, receives even less respect.

News outlets blast the Electoral College as “terrible, skewed, [and] anachronistic.” The system was allegedly created because of slavery, one prominent critic writes, and it was intended to “help one group—white Southern males.” Others claim the system is anti-democratic, created by aristocratic white men who wanted to dilute the voices of the masses because they believed “ordinary citizens . . . too poorly informed to choose wisely.”

To listen to these critics, free and fair presidential elections will not exist until the Electoral College is eliminated, replaced by a national popular vote.

Except none of it is true. The reality is that the delegates to the Constitutional Convention strove to design a system that would accurately reflect the will of the people, knowing that the new United States government would be a miserable failure if the people’s voice was not expressed at election-time.

George Mason, delegate from Virginia, emphasized that “the genius of the people must be consulted.” Pennsylvania delegate James Wilson agreed that “[n]o government could long subsist without the confidence of the people.” Governmental authority, he concluded, must “flow immediately from the legitimate source of all authority. . . the mind or sense of the people at large. The Legislature ought to be the most exact transcript of the whole Society.”

This sentiment was just as strong when it came to election of the President.

“It was desireable, that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided,” Alexander Hamilton concluded.

Yet what does it mean to reflect the “sense of the people” in a nation composed of both large and small states, as well as many religions, industries, and subcultures? How can both rural and urban areas be represented? The questions are difficult. After all, the President is the only elected official expected to represent every single American, from every walk of life, simultaneously.

A simple national popular vote for President would be too easily manipulated, the delegates to the Convention concluded, ensuring that large states and heavily populated areas are over-represented while small states are ignored.

“An Election by the people [is] liable to the most obvious & striking objections,” Charles Pinckney of South Carolina observed. “They will be led by a few active & designing men. The most populous States by combining in favor of the same individual will be able to carry their points.” Roger Sherman, delegate from Connecticut, echoed this concern: “[The people] will generally vote for some man in their own State, and the largest State will have the best chance for the appointment.”

The Founders knew that a unique presidential election process would be needed to reflect the “sense of the people” in such a large, diverse country. Thus, they created our Electoral College: Its state-by-state election process requires presidential candidates to obtain more than just a simple majority, too heavily focused on one part of the country. Instead, candidates must obtain cross-regional support and federal majorities to win.

“[The President] is now to be elected by the people,” James Madison concluded. James Wilson, delegate from Pennsylvania, agreed that the President “will, under this Constitution, be placed in office as the President of the whole Union, and will be chosen in such a manner that he may be justly styled the man of the people.”

It’s an important point: The Electoral College seeks the fairest solution for the whole Union, not merely one part of it.

The Electoral College supports the principle of fair and free elections in a second way that often goes unnoticed. The system minimizes fraud and provides “as little opportunity as possible to tumult and disorder,” as Alexander Hamilton wrote.

Because of its state-by-state structure, the Electoral College typically produces quick and undisputed outcomes. When problems do occur, they are isolated to one or a handful of states, where they can be more easily resolved. Fraud is minimized because it is hard to predict where stolen votes will matter.

The election of 2020 proved—again—the ability of the Electoral College to provide stability when chaos threatens to reign. Because of the system, problems were isolated to a few states such as Michigan, Pennsylvania, and Wisconsin. Moreover, problematic areas such as Detroit and Philadelphia were highlighted.

Such transparency would not have occurred without the Electoral College. In a national popular vote system, local difficulties could have been glossed over, lost in the glare of the large 7-million national popular vote margin. As things stand today, however, state legislators have an opportunity to investigate and fix local problems, as needed.

An American historian once described the Founders’ conclusions about their presidential election system: “[F]or of all things done in the convention,” Max Farrand wrote, in his book, The Framing of the Constitution of the United States (2022), “the members seemed to have been prouder of that than of any other, and they seemed to regard it as having solved the problem for any country of how to choose a chief magistrate.”

Indeed, the Electoral College has done more to protect fair and free elections in America than the Founders could possibly have imagined.

Tara Ross is a retired lawyer and the author of several books about the Electoral College, including Why We Need the Electoral College (Regnery Gateway).

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Principle of Republican and Limited Form of Government, Representative Through American Citizens Voting in Free and Frequent Elections

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Guest Essayist: Joerg Knipprath

 

Essay Read by Constituting America Founder, Janine Turner

 

“There are however some things deducible from reason, and evidenced by experience, that serve to guide our decision upon the case. The one is never to invest any individual with extraordinary power; for besides his being tempted to misuse it, it will excite contention and commotion in the nation for the office. Secondly, never to invest power long in the hands of any number of individuals. The inconveniences that may be supposed to accompany frequent changes are less to be feared than the danger that arises from long continuance.” – Thomas Paine, Dissertation on First Principles of Government, 1795.

Advocates of republican systems long have insisted on certain features in a government to qualify it as a republic. Among those are the right to vote vested in a variable, yet sufficiently substantial, portion of adult residents, the election of the important figures in government, regular elections, short terms for those elected, rotation in office through restrictions on re-election, and the right of voters to recall elected officials. The objectives of these conditions are to keep the governing members responsive to the people’s wishes, to promote fresh blood in positions of authority, and to allow more persons to participate in governing, thereby bestowing legitimacy on the system even in the eyes of those who may lose a particular political contest.

The opponents of the United States Constitution found much to criticize in what they saw as the deficient republicanism of the proposed charter. Colonial practice had been annual or even semi-annual terms for legislators. Early state practice generally continued that tradition, although some permitted longer terms for the upper house of a bicameral legislature. Annual or biennial terms became the norm for governors. For example, the Massachusetts Constitution of 1780 provided that the governor, lieutenant governor, and senators and representatives in the state legislature be elected annually. The Virginia constitution of 1776 provided for annual election for the House of Delegates, the lower house of the state legislature, but allowed four-year terms for state senators, the terms ending on a rotating basis, with one-quarter of senate offices up for election each year. The governor was elected annually. He could be re-elected for three terms but then became ineligible for re-election for at least four years.

At the level of the national government, the Articles of Confederation left the precise mode of choosing delegates to the states, but limited their terms in Congress to three years in six. Virginia, for example, chose its delegates to the Confederation Congress anew annually. The Northwest Ordinance of 1787, enacted by the Confederation Congress to govern the Old Northwest territory also required annual election to the territorial legislature.

It is today taken for granted that only citizens might vote. But that was not always the American practice. The Constitution requires citizenship for those elected to either house of Congress and to the Presidency. But there is no similar qualification required for those doing the electing. The Constitution left it to the states to sort out. The Massachusetts Constitution of 1780, for example, discussed voting by “inhabitants” and imposed age, residency, and property qualifications, but not separate citizenship.

Nor was there a lack of awareness of the concept of citizenship versus residency. The Northwest Ordinance provided that voting for territorial representatives was open to two classes: those who were citizens of other states, had resided in the territory for one year, and owned a specified amount of property; and those who were not citizens, but had resided in the territory for three years, and owned the same specified amount of property. The Ordinance made a similar distinction between citizens and non-citizens for candidates for election to the territorial legislature.

States generally allowed non-citizens to vote well into the 19th century to attract immigrants. It is a common trope in historical accounts to write about urban political machines whose operatives at election time waited at the docks to welcome those fresh off the ships from Europe with job opportunities, a small gift, and a voting card filled out in favor of their benefactors. At the level of presidential elections, it was not until the election of 1928 that all states restricted voting to American citizens. Even today, about a dozen municipalities, mostly in Maryland, allow non-citizens to vote in local elections.

While there was no significant debate about citizenship for voting, the length of terms of office was a matter of significant contention at the convention in Philadelphia and in the state ratifying conventions. The Constitution’s supporters tried different approaches to blunt attacks. One was to cherry-pick the length of terms of particular state offices or offices in Great Britain. As to the two-year terms of the House of Representatives, James Madison in No. 53 of The Federalist agreed that there must be frequent elections, but “what particular degree of frequency may be absolutely necessary for the purpose, does not appear to be susceptible of any precise calculation,…” Thus, a range of terms of service reasonably would be sufficiently republican.

To illustrate his point, Madison contrasted the terms of the lower houses of various state legislatures:

“In Connecticut and Rhode Island, the periods are half-yearly. In the other states, South Carolina excepted, they are annual. In South Carolina they are biennial; as is proposed in the federal government. Here is the difference as four to one, between the longest and the shortest periods; and yet it would be not easy to show, that Connecticut or Rhode Island is better governed, or enjoys a greater share of rational liberty, than South Carolina;…”

If anything, shorter terms were undesirable, in that they encouraged electoral fraud, a concern not unheard of today: “[S]purious elections cannot be investigated and annulled in time for the decision to have its due effect….Hence a very pernicious encouragement is given to the use of unlawful means, for obtaining irregular returns.” It might be added that representatives complain that, even with modern transportation, two-year terms are burdensome because they need to spend so much time campaigning for re-election. It should be noted that these complaints have increased as the members of Congress have become full-time legislators and the size of the government has expanded.

Even if long terms of office might be undesirable as a matter of general consideration, there might be more justification for a longer term in Congress than in state or local legislative councils. National affairs regulated by Congress require greater acquisition of knowledge of complex policies and of the needs of other states. Hence, more time is needed to become sufficiently familiar with these complexities, whereas in a state the laws are uniform and the people and their needs are less diversified. In the end, Madison argued, “the business of federal legislation must continue so far to exceed, both in novelty and difficulty, the legislative business of a single state, as to justify the longer period of service assigned to those who are to transact it.”

The six-year terms for Senators came in for especially harsh criticism. Madison and other Federalists frequently defended the Senate’s long terms on two grounds, the need for a stabilizing influence over the popular passions likely to influence the short-term focus of the more democratic House of Representatives, and the Senate’s role in the potentially complex matters of foreign relations. After a brief attempt to analogize the terms of office of United States Senators to the five-year terms of senators in the state of Maryland, Madison in Essay No. 63 of The Federalist emphasized the role of the Senate as a stabilizing influence on the House of Representatives both by taking a “longer” view on policy and because of the “propensity of all single and numerous assemblies, to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions.” As well, there was the Senate’s function in foreign affairs which required sophistication, wisdom, and knowledge. Moreover, longer terms gave that body the stability to provide a “national character” needed for the United States to be effective in dealings with foreign nations.

The critics were not convinced. Even moderate opponents saw the Senate’s terms as dangerous. In Essay of Brutus No. 16 of April 10, 1788, the New Yorker Robert Yates agreed that the Senate’s stabilizing role and its tasks in foreign affairs required longer terms than those of the typical state legislature or of the House of Representatives. Yates also agreed that the Senate was to represent the country’s “natural” aristocracy. But the danger to republicanism remained. “Men that hold office for long become detached from their constituents.” This is especially a problem with the Senate, as “they will for the most part of the time be absent from the state they represent, and associate with such company as will possess very little of the feelings of the middling class of people. For it is to be remembered that there is to be a federal city, and the inhabitants of it will be the great and the mighty of the earth.” [Emphasis in original.]

The solution for Yates and for his fellow New York Anti-federalist Melancton Smith, writing as The Federal Farmer, was to reduce the term to four years. In addition, there must be rotation in office—Yates proposed a limit of three terns for Senators—and recall as existed in the Articles of Confederation. Otherwise, the reality will be that Senators will be reelected over and over for life, due to the influence of their “friends.” “Everybody acquainted with public affairs knows how difficult it is to remove from office a person who is long been in it. It is seldom done except in cases of gross misconduct. It is rare that want of competent ability procures it.”

The concerns of the Constitution’s critics found their way into proposals for reform even as the states approved the new plan of government. Among the list of proposed amendments from the Virginia convention sent on June 27, 1788, was one that called for rotation in office as a very useful tool to limit the potential threat to the people’s liberty from an entrenched political class: So that members of legislative and executive branches “may be restrained from oppression by feeling and participating the public burdens, they should, at fixed periods, be reduced to a private station, return into the mass of the people, and the vacancies be supplied by certain and regular elections,…”

None of the proposals have been adopted. Senate terms are still six years. There is no rotation in office, and an attempt by the people of Arkansas to provide “term limits” for members of both houses of Congress elected in Arkansas was struck down as unconstitutional by the United States Supreme Court. Likewise, an attempt by people in New Jersey even to collect signatures to allow a recall vote for a Senator was blocked by the state supreme court as unconstitutional. Meanwhile, members of Congress, especially Senators, generally hold office for decades, often until death. It is common for them to be “absent from the state they represent.” They live in the “federal city,” returning to their states only at election time. The environs of the District of Columbia include the wealthiest areas of the United States, so it may also be rightly said that they associate with “the great and mighty of the earth,” who “possess very little of the feelings of the middling class of people.”

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

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Principle of No Passage, Federal or State, of Ex Post Facto Laws

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Guest Essayist: Joerg Knipprath

 

Essay Read by Constituting America Founder, Janine Turner

 

The Framers of the United States Constitution considered ex post facto laws and bills of attainder so repugnant to justice that the document expressly bans them twice. In Article I, Section 9, the prohibition applies to the federal government. The subsequent section of the charter likewise targets state enactments. These provisions are a proto bill of rights in the body of the original document, which makes them unusual in that opponents of the Constitution often cited the lack of a bill of rights as the reason for their stance. Still more thought-provoking is the claim often made then that such laws would be invalid even without an express constitutional provision. That position required its advocates to appeal to higher principles of justice or law as limiting the power of legislatures.

Emblematic of that approach was the opinion of Justice Samuel Chase in the 1798 case of Calder v. Bull. The suit involved a Connecticut case in which a will initially had been denied probate, to the benefit of certain of the deceased’s heirs at law, Mr. and Mrs. Calder. The state legislature then enacted a law which provided for a new hearing that was not permitted under the statute in effect when the original proceedings were held. The will was then admitted to probate, which benefitted the beneficiaries under that will, Mr. and Mrs. Bull.

Justice Chase defined ex post facto laws as,

“1st. Every law that makes an action done before the passing of the law and which was innocent when done, criminal and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the offender.”

He also gave examples of English precedents to illustrate the dangers of such laws. Bills of attainder were acts of Parliament that imposed the death penalty on an individual for a criminal act. If Parliament imposed a lesser penalty, the law was a bill of pains and penalties. Either one was odious. Often, but not always, they operated ex post facto:

“These acts were legislative judgments; and an exercise of judicial power. Sometimes they respected the crime, by declaring acts to be treason, which were not treason, when committed; at other times, they violated the rules of evidence (to supply a deficiency of legal proof) by admitting one witness, when the existing law required two; by receiving evidence without oath; or the oath of the wife against the husband; or other testimony, which the courts of justice would not admit; at other times they inflicted punishments, where the party was not, by law, liable to any punishment; and in other cases, they inflicted greater punishment, than the law annexed to the offence.”

But Chase went further and declared that a legislature could not pass bills of attainder or other ex post facto laws, even if there were no express constitutional prohibition. He urged that such laws were against the social compact through which people enter into political society and against fundamental principles of free republican government. A legislature that undertook such an action might engage in an “act” but had not made a “law,” because a law must not conflict with the fundamental purposes for which governments are formed by the people, to protect their persons and property.

He provided examples of the types of laws that are so destructive of personal liberty and private property and so manifestly unjust, that they are obvious and flagrant abuses of power:

“A law that punished a citizen for an innocent action, or, in other words, for an act, which, when done, was in violation of no existing law; a law that destroys, or impairs, the lawful private contracts of citizens; a law that makes a man a Judge in his own cause; or a law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it. The genius, the nature, and the spirit, of our State Governments, amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them.”

If bills of attainder and ex post facto laws were so obviously contrary to justice, reason, and the essential purposes of governments, why then is there a need for specific prohibitions in the Constitution? Some delegates in the Philadelphia convention and in the state ratifying conventions raised that very question. A couple of reasons present themselves.

Consider another opinion in Calder, that of Justice James Iredell. He agreed about the definition of ex post facto laws and their unconstitutionality under the express provisions of the Constitution. But he also warned that, in their absence, a court was incompetent to declare such laws void.

“If, then, a government, composed of legislative, executive and judicial departments, were established by a constitution which imposed no limits on the legislative power, the consequence would inevitably be that whatever the legislative power chose to enact would be lawfully enacted, and the judicial power could never interpose to pronounce it void. It is true that some speculative jurists have held that a legislative act against natural justice must in itself be void, but I cannot think that under such a government any court of justice would possess a power to declare it so.”

The reason was that natural justice was not a sufficiently precise concept to allow judges to override the legislature’s power to make all laws which are not expressly prohibited to it: “The ideas of natural justice are regulated by no fixed standard; the ablest and the purest men have differed upon the subject, and all that the court could properly say in such an event would be that the legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice.”

Another reason was that, in fact, there had been such laws passed. During the debate in the Virginia ratifying convention in June 1788, Patrick Henry defended the use of bills of attainder and ex post facto laws in some circumstances. His example was the case of one Josiah Philips, a loyalist guerrilla leader during the Revolutionary War. Philips’s band had repelled a militia sent by then-governor Patrick Henry. Henry then had sought an attainder of Philips. None other than Thomas Jefferson had drafted the bill of attainder which the legislature had adopted unanimously on May 28, 1788. The bill accused Philips and his associates of various crimes amounting to treason and directed that they be executed expeditiously after their capture. Moreover, if those attainted had not turned themselves in to the authorities, the act directed that “it shall be lawful for any person with or without orders, to pursue and slay the said Josiah Philips and any others who have been of his associates or confederates… or otherwise to take and deliver them to justice to be dealt with according to law provided that the person so slain be in arms at the time or endeavoring to escape.”

Edmund Randolph, the state attorney general at the time, had opposed the attainder. Instead, when Philips was caught, he was tried and convicted by a jury for grand theft of 28 hats and five pounds of twine. That made little difference in the end, as the punishment for that conviction also was death by hanging. Both Henry and Jefferson years later still defended the attainder of someone they considered the equivalent of a pirate engaged in crimes against humanity and therefore hostis humani generis, beyond the protection of the law.

Nor was Virginia alone. Many other states engaged in the practice against Loyalist Tory sympathizers. It must be noted, however, that actual executions under such attainders were rare, estimated by one authority to number 15 during the entire war. The Pennsylvania legislature, acting on its own initiative or at the instigation of its judiciary, enacted attainders for treason in hundreds of cases, although only four ended in hangings, all of Quakers. Due to its pacifism, that religious minority was broadly suspected to be at least unfriendly to the Patriot side. A particularly colorful tale is that of the members of the extended Doane family of Loyalist Quakers who helped the British while marauding in the countryside.

Several states used such attainders, even though their own constitutions prohibited them. It was to these events that James Madison was reacting in The Federalist No. 44 in language similar to Justice Chase’s,

“Bills of attainder, ex post facto laws, and laws impairing the obligations of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. The two former are expressly prohibited by the declarations prefixed to some of the state constitutions, and all of them are prohibited by the spirit and scope of these fundamental charters. Our own experience has taught us, nevertheless, that additional fences against these dangers ought not to be omitted.”

Although all justices in Calder v. Bull agreed that ex post facto laws were those that retroactively altered rules about conduct to the detriment of the now-accused, there apparently was less unanimity about that definition during the debate over the Constitution. Some constitutional historians, most notably Professor William Crosskey writing in the mid-20th century, have argued that the phrase ex post facto was commonly understood in the 18th century to apply to any retroactive law. They have reviewed the records of the debates at the Philadelphia convention, primarily the printed Journal of the Convention, James Madison’s notes and notes taken by another delegate, David Brearley, a future New Jersey chief justice, and by convention president George Washington. Crosskey also analyzed numerous other contemporary English and American sources of 18th-century usage of the term.

The more restricted definition arose when, according to Madison’s notes, some delegates registered confusion about the phrase. John Dickinson, a much-respected authority on constitutional law at the time, then claimed to have researched the matter by consulting Blackstone’s influential Commentaries on the Laws of England. He concluded that Blackstone defined the phrase as applying only to retrospective criminal laws. The problem is that this definition appears to conflict with the Journal and with another part of Madison’s notes recording a debate about the clause a day earlier, on August 28, 1787, where the speakers assumed that the phrase applied more broadly to all retrospective laws. As well, the notes of Brearley and Washington reflect that earlier, broader understanding and say nothing about Dickinson’s remarks. Dickinson’s own papers about the Constitution do not show that he made those remarks.

Ten months later, during the intense debates in the Virginia ratifying convention, Patrick Henry also charged that the ex post facto clause applied to all retrospective laws, criminal and civil. Henry objected that, if no such laws were permitted, would the old worthless continental paper dollar notes have to be repaid at face value with gold and silver because no law could discharge such payment retroactively. Faced with such assertions, it is surprising that neither Madison nor his fellow delegate to the Philadelphia convention Edmund Randolph cited Dickinson or Blackstone. As a result, these historians speculate that Madison’s position in the Virginia convention and in essay No. 44 of The Federalist, which was adopted in Calder was not correct and that, indeed, Madison made up the Dickinson remarks and added them to his notes some years after the events.

Whatever the understanding about the scope of ex post facto was in 1787, the more limited meaning put forth by Madison in his essay and in the Virginia convention, and adopted by the justices in Calder is the accepted meaning today. Retroactive criminal laws create profound instability in that no one can predict whether one’s conduct is outside the law, because the law might be changed retroactively at any time. Their potentially destructive effect on people’s lives justifies Justice Chase’s description of ex post facto laws as contrary to basic conceptions of justice and a fundamental violation of the proper relationship between the government and the governed.

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

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Principle of Right to a Speedy Trial by a Jury of Peers, Public and Impartial, Without Cruel or Unusual Punishments

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Guest Essayist: Tony Williams

Essay Read by Constituting America Founder, Janine Turner

 

 

The right to a trial by jury is one of the core principles of the Anglo-American constitutional tradition. The trial by jury ensures that the government is limited, essential rights are protected, and the rule of law is preserved. As Thomas Jefferson noted to Thomas Paine, “I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

The trial by jury can be traced back to Magna Carta (1215), which King John signed as a limit on royal power. Clause 39 read, “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.” It protected the right of habeas corpus—meaning that one could not be indefinitely imprisoned.

The English Bill of Rights (1689) confirmed the right to a trial by jury. It also protected related rights for those accused of crimes. The document guaranteed a trial by jury as well as protections against arbitrary government. It outlawed cruel and unusual punishments, excessive fines, and unreasonable bail for the accused.

The English colonists brought this tradition of rights to British North America. They expected to enjoy the rights of Englishmen. The trial by jury became a core issue of the resistance to British tyranny during the 1760s and 1770s. The British began enforcing the Navigation Acts regulating imperial trade more stringently and tried colonial smugglers in Vice-Admiralty courts. These courts did not have juries, and cases were decided by judges. Colonists felt as if they could not get a fair trial and protested this injustice.

In late 1765, delegates from nine colonies attended the Stamp Act Congress in New York. They issued a list of resolutions claiming their rights especially the principle of “no taxation without representation.” They also asserted the right to a trial by jury. “That trial by jury is the inherent and invaluable right of every British subject in these colonies,” the Stamp Act Resolutions read. Many other documents claimed this essential right over the next decade.

The Declaration of Independence asserted the right of a people to overthrow an oppressive government violating their rights. The Continental Congress included a list of grievances against arbitrary government to prove British tyranny and justify separation. One of those grievances was blaming the king for “depriving us in many cases, of the benefits of Trial by Jury.”

When the Framers created the United States Constitution during the Philadelphia Convention in the summer of 1787, they protected some basic rights including habeas corpus and trial by jury. Article III, section 2 guaranteed the right to a trial by jury. It stated, “The Trial of all Crimes, except in Cases of Impeachment, shall be by jury; and such Trial shall be held in the State where the said Crimes shall have been committed.”

During the 1787-88 ratification debate, the opponents of the Constitution, the Anti-federalists, argued for a Bill of Rights to protect individual liberties against a more powerful national government. The Federalists, those who supported the Constitution, promised to create a Bill of Rights in the First Congress. In 1789, Representative James Madison urged his colleagues to craft a Bill of Rights and took the lead in the process.

Congress did pass a Bill of Rights that was ratified by all the states by 1791. It provided widespread protections of rights for the accused including the right to a fair and speedy trial in criminal prosecutions, the due process of law, the right to an attorney, and no cruel and unusual punishments. The Seventh Amendment guaranteed a jury in civil trials.

The right to a trial by jury and related essential rights have been a bedrock of justice and the rule of law in the American constitutional system. Controversies have arisen throughout American history such as the suspension of habeas corpus during the Civil War, the denial of trials for Blacks during slavery and rarely fair trials during segregation, the constitutionality of the death penalty, and the holding of terrorists in Guantanamo Bay without a trial during the War on Terror. During the 1960s, the Court also protected several rights of the accused including the right to a trial by jury for the indigent in Gideon v. Wainwright (1963) and the right against self-incrimination in Miranda v. Arizona (1966).

The right to a trial by jury has been one of the foundations of a just constitutional order and limited government in the British tradition and under the American Constitution. The trial by jury thwarts arbitrary government and provides a rule of law that preserves the liberties of the people.

*****

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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Principle of No Unreasonable Searches and Seizures

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Guest Essayist: James Humphreys

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

The Fourth Amendment to the United States Constitution protects Americans from “unreasonable searches and seizures” by government officials. The Fourth Amendment was ratified in 1791 along with the other nine amendments in the Bill of Rights. It reads, “The rights of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Fourth Amendment safeguards Americans from heavy-handed and arbitrary government action in some of the most private arenas of their lives.

The experience of the American colonists with British military and civil officials during the American Revolution convinced many colonists of the necessity of defending themselves from invasion and search of their homes by government agents. A number of state constitutions, written in 1776 during the early stages of the Revolution, included in a list of rights belonging to citizens a prohibition against the use of general warrants. Among the states with such a restriction in their constitutions were Maryland, Virginia, and Pennsylvania.

British officials, during the colonial era, often used general warrants to justify the search of a colonist’s home. General warrants provided little detail about whom or what were to be searched for, and, in some cases, colonists, with no evidence against them of illegal activity, suffered the indignity of having their homes searched. The Fourth Amendment demanded that a warrant be more detailed for a search and seizure to be legal. First, to obtain a warrant, there had to be “probable cause” or a good reason to believe a search was necessary in order to uncover evidence of a crime that might be used in a court of law.  Second, a search warrant had to denote explicitly whom or what authorities were searching for and where their search would take place. Third, a warrant had to be signed by a judge. These three conditions lessened the chance of government authorities carrying out a baseless search of an American’s home and personal property.

State and federal judges’ interpretations of the Fourth Amendment became more complicated in the twentieth and twenty-first centuries than in earlier eras with the explosion of technologies that enhanced government officials’ ability to carry out electronic surveillance of citizens. The members of the Supreme Court, for example, upheld the use of wiretapping in the 1928 case of Olmstead v. United States, but in later cases, they ruled that government officials needed search warrants to justify wiretapping. In 2010, in the case of City of Ontario v. Quon, the judges ruled that emails and other forms of communication sent by workers over their employers’ servers were searchable without a warrant. According to another Supreme Court ruling, information on a personal cell phone belonging to an individual, who had been arrested, could not be subjected to a warrant-less search. The cell phone could be confiscated by the police and searched later after the issuance of a warrant.

Online learning, widely implemented during the Covid pandemic, also has Fourth Amendment ramifications. A federal judge, in 2022, wrote that a testing system’s requirement that a student scan his room before remotely completing an online assignment met the Fourth Amendment’s definition of an unreasonable search. University officials, who appealed the decision, argued that a scan held the potential to reveal evidence that a student planned to cheat on an assignment. While questions regarding the application the Fourth Amendment to the use of electronic devices abound, there is no question that evidence, for it to be admitted in court, must be obtained legally, that is, in accordance with all laws and rulings on what constitutes a reasonable search. The Supreme Court, by a 6-3 vote, ruled that evidence gathered illegally was inadmissible in court in the 1961 case of Mapp v. Ohio.

That the Framers of the Fourth Amendment included protection from illegal searches and seizures in the Bill of Rights indicates the significance of the right to the Revolutionary generation. In no way, though, is that liberty less important now than it was in early America. Instead, with government officials’ enhanced ability to surveil American citizens through more clandestine ways than entering and searching homes, the right may be of even more significance today than it was in past eras. One thing is for certain: During every period of United States history, citizens’ freedom from illegal searches and seizures has been vital to the maintenance of a free society.

 James S. Humphreys is a professor of United States history at Murray State University in Murray, Kentucky. He is the author of a biography of the southern historian, Francis Butler Simkins, entitled Francis Butler Simkins: A Life (2008), published by the University Press of Florida. He is also the editor of Interpreting American History: the New South (2018) and co-editor of the Interpreting American History series, published by the Kent State University Press.   

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Principle of Courts With Justices Who Hold Their Offices During Good Behavior

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Guest Essayist: Ben Slomski

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

“Every man ought to be amenable for his conduct, and there are no persons so proper to complain of the public officers as the representatives of the people at large. The representatives of the people know the feelings of the people at large, and will be ready enough to make complaints. If this power were not provided, the consequences might be fatal. It will be not only the means of punishing misconduct but it will prevent misconduct. A man in public office who knows that there is no tribunal to punish him may be ready to deviate from his duty; but if he knows there is a tribunal for that purpose, although he may be a man of no principle, the very terror of punishment will perhaps deter him.” – James Iredell, U.S. Supreme Court Justice placed by George Washington, North Carolina Ratification Convention, July 24, 1788

The United States Constitution places members of the federal judiciary in a unique position. Article III stipulates that “the Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.” Unlike members of Congress or the President who are elected for a set term length, all federal judges are appointed for the term of good behavior. Practically, this means federal judges are appointed for life. The only way to remove a federal judge from office is through impeachment by Congress, which is limited to the cases of “Treason, Bribery, or other high Crimes and Misdemeanors.”

The logic of life tenure for judges was best explained by Alexander Hamilton in Federalist No. 78. Here, Hamilton declared that

[t]he standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.

Life tenure upon appointment creates independence for the judiciary in the administration of the laws. This ensures that the laws are applied in a consistent and fair manner. Even in a republican government, the individuals who comprise the legislature are human beings who can succumb to despotic passions. Judicial independence is just as useful a safeguard from oppression in a republican government as any other.

The institutional capacity of the judiciary makes life tenure especially necessary. Hamilton explained that the judiciary lacks Congress’ power of the purse and the President’s power of the sword and wrote that the judiciary “may truly be said to have neither FORCE nor WILL, but merely judgment.” The judiciary is comparatively weaker to the other two branches of government because it lacks the will to make laws as well as the force to enforce the law. There is a risk that the political branches could ignore the Constitution and the judiciary could be too weak to resist their usurpations.

In order to protect the judicial branch from the greater powers of the other branches, life tenure is necessary to create judicial independence. Hamilton stated that

as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.

Federal judges are appointed through a political process where they must be nominated by the President and confirmed by the Senate. Once judges are appointed, however, they have life tenure so that they do not need to rely on the political branches for any further security. Life tenure allows judges to be independent from politics so that they have the security to stand up against the political branches when necessary.

Judicial independence is beneficial under all forms of government but it turns out that it is especially necessary under the American form of government with a written Constitution. For Hamilton,

[t]he complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

A written constitution embodies the fundamental will of the people for the government. There is no point to writing down a constitution if the written limits are not enforced. The task of enforcing constitutional limitations cannot be left to Congress or the President because each would naturally be inclined to favor itself. The judiciary must exist as a third, independent branch that stands outside the political process to enforce the Constitution’s limits. Hamilton explained that it is natural that the judiciary fulfills this role because “[t]he interpretation of the laws is the proper and peculiar province of the courts.” Courts interpret and apply laws as part of their normal function and so it makes sense that it will be the judiciary that interprets the Constitution as the fundamental law of the land in legal cases.

Federal judges are given excellent job security because they are entrusted with a great responsibility. Article III ties life tenure to the specific office that is held, which is that of a judge on a court. Good behavior for judges is understood in the sense of carrying out one’s duties in a judicial manner. Judges act consistently with their constitutional charge when they remember that they are judges tasked with the application of the Constitution and the laws to particular legal cases. Judges stray from this responsibility when they seek to exercise the functions of legislating or executing laws and impose their will rather than the Constitution. Impeachment by Congress remains as a check on judges who misuse their office. Good behavior requires judges to resolve legal cases and invalidate government acts when necessary to preserve the sanctity of the Constitution.

Benjamin Slomski is Assistant Professor of History and Political Science at Ashland University.

 

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Principle of Freedom of a Person Under the Protection of Habeas Corpus

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Guest Essayist: Eric C. Sands

 

Essay Read by Constituting America Founder, Actress Janine Turner

 

It has been around since the Middle Ages. It’s been called the second Magna Carta by some, and the “great writ” by others. What we are referring to is habeas corpus, a Latin phrase meaning “you should have the body.” Put most simply, habeas corpus allows a person who has been detained the chance to challenge that detention in court. This prevents the government from holding an individual indefinitely without bringing charges against them. In the American system of justice, habeas corpus applies both at the federal and state level.

While some scholars locate the origin of habeas corpus in Roman law, a less disputed claim is that habeas corpus originated in Article 39 of the Magna Carta. Article 39 held that “no Freeman shall be taken, or imprisoned…but by lawful Judgment of his Peers, or by the Law of the Land.” It is true that this does not necessarily speak directly to habeas corpus as it is understood today, but it seems to have something like habeas corpus in mind. From this starting point, though, habeas corpus evolved in the English courts and sheriffs could be served with the writ.  A court could then issue an order to release a prisoner if it was found he or she was being held without cause.

The modern understanding of habeas corpus arose out of conflicts between Parliament and the king in the 17th Century. The Petition of Right in 1628 charged that the king’s jailers were ignoring the writs and were illegally detaining English subjects. In 1679, Parliament passed the Habeas Corpus Act, which applied to sheriffs and jailers who were causing delays in releasing prisoners. The Act imposed strict deadlines for responding to the writ and imposed heavy fines if sheriffs or jailers did not act promptly. By this point habeas corpus had come into its own in Britain, but it still needed to make its way to the new world.

When the United States Constitution was written, the writ of habeas corpus was the only English common law writ given specific reference in the document. Article I, Section 9 of the document provides that “the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”  This became known as the Suspension Clause and it both recognized the existence of the writ of habeas corpus and stipulated the conditions under which it could be withheld. Two years later, in the Judiciary Act of 1789, Congress provided that both justices of the U.S. Supreme Court and judges of the federal district courts “have the power to grant writs of habeas corpus for the purpose of inquiry into the cause of commitment.” Importantly, though, this law only applied to people in custody by the federal government or being tried in federal courts. Federal judges thus did not have the power to extend the writ to prisoners in the states.

During the Civil War, the Suspension Clause was put into effect by President Abraham Lincoln at the beginning of the war to deal with saboteurs and traitors operating in the state of Maryland. Under the suspension of the writ, John Merryman was arrested by military authorities, and was detained at Fort McHenry outside of Baltimore. Merryman’s lawyer petitioned Supreme Court Justice Roger Taney for a writ of habeas corpus. The issue in Ex parte Merryman was whether Lincoln, as president, could constitutionally suspend the writ in a case of rebellion. That the country was in a state of rebellion no one had any doubt. But the Constitution located the Suspension Clause in Article I, which dealt with the powers of Congress. This seemed to make it a legislative power and, therefore, one the president could not exercise alone. Lincoln believed the suspension of the writ could be undertaken by either the president or Congress, especially if Congress was not in session when an emergency began.

Taney disagreed with Lincoln and held that Lincoln had violated the Suspension Clause by suspending the writ. Yet, Taney seemed to recognize the limited scope of his power and, therefore, did not order Merryman’s release. Instead, he filed his opinion with the U.S. Circuit Court of Maryland and ordered that a copy of the opinion by delivered to the president. Taney concluded that “it will then remain for that high officer…to determine what measures he will take to cause the civil process of the United States to be respected, and enforced.” In the end, the Merryman decision became a moot point as Congress retroactively approved the suspension and passed sweeping legislation that authorized Lincoln to suspend the writ for the duration of the war. Moreover, the case left unanswered the question of who has the actual power to suspend the writ since Taney did not write in his capacity as Chief Justice and, therefore, the case did not become Supreme Court precedent.

During Reconstruction, in tandem with the passage of the Fourteenth Amendment, Congress passed the Habeas Corpus Act of 1867. This Act provided “That the several courts of the United States, and the several justices and judges of such courts, shall have power to grant writs of habeas corpus in all cases where any person may be restrained of his or her liberty in violation of the Constitution, or of any treaty or law of the United States.” What this meant, significantly, is that federal judges could now issue writs to state prisoners in state cases for violations of their constitutional rights. While this expanded protections for those charged with crimes throughout the United States, it also created a great deal of tension between the states and the national government and raised issues of federalism. Clearly, therefore, the issues related to habeas corpus have not all been resolved, yet it remains without question one of our most important civil liberties.

Eric C. Sands is Associate Professor of Political Science and International Affairs at Berry College. He has written a book on Abraham Lincoln and edited a second volume on political parties. His teaching and research interests focus on constitutional law, American political thought, the founding, the Civil War and Reconstruction, and political parties.

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Principle of Innocent of Any Crime Until Proven Guilty

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Guest Essayist: Ben Peterson
Scales of justice in association with Lady Justice and the presentation of evidence to be carefully weighed.

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

Numerius, the Governor of Narbonensis, was on trial before the emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, “a passionate man,” seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, “Oh, illustrious Caesar, if it is sufficient to deny, what hereafter will become of the guilty?” to which Julian replied, “If it suffices to accuse, what will become of the innocent?” – Coffin v. United States (1894), citing Rerum Gestarum, L. XVIII, c. 1

I served on a jury for an assault and family violence case last year. The defense counsel reminded me and the other potential jurors that the prosecution bore the burden of demonstrating the defendant’s guilt. Even if the defense presented no evidence, called no witnesses, or gave no testimony, jurors were not to take absence of exculpatory evidence as an indication of guilt. It was the prosecutor’s task to prove, beyond a reasonable doubt, that the defendant was guilty.

Neither the phrase “innocent until proven guilty,” nor “presumption of innocence” appears in the United States Constitution. Yet, the presumption of innocence is a fundamental principle of our legal order. Colonial governments and the First Continental Congress invoked the principle, it lies in the background of protections for the accused and requirements of due process in the Fourth and Fifth Amendments, and it appears in the constitutions or penal codes of some states.

Supreme Court justices have referred to the presumption of innocence as a fundamental, axiomatic legal principle. Associate Justice Joseph Story (d. 1845), offering the opinion of the Supreme Court in United States v. Gooding (1827), wrote that, “the general rule of our jurisprudence is that the party accused needs not establish his innocence, but it is for the government itself to prove his guilt before it is entitled to a verdict or conviction.” Associate Justice Edward Douglass White (d. 1921), writing for the Court in Coffin v. United States (1894), wrote, “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” The Court found that the lower court should have instructed the jury that,

The law presumes that persons charged with crime are innocent until they are proven by competent evidence to be guilty. To the benefit of this presumption the defendants are all entitled, and this presumption stands as their sufficient protection unless it has been removed by evidence proving their guilt beyond a reasonable doubt.

The doctrine of presumed innocence has medieval roots, and there are ancient principles regarding fair procedure that are widely shared, finding echoes in Talmudic and Islamic legal theory, and even in the Code of Hammurabi, as well as Roman law. While Justice White and other writers traced the principle to the English common law, in great measure incorporated into the American legal order, Kenneth Pennington credits a French canon lawyer who lived in the thirteenth and first part of the fourteenth century, Johannus Monachus (d. 1313), with the first clear, pithy formulation of the principle that a person is presumed innocent until proven guilty: “item quilbet presumitur innocens nisi probetur nocens.”

The canonist was himself referring to a decretal by Pope Innocent III (d. 1216), and he was among a number of jurists who, in the thirteenth century, sought to ground procedural rights of defendants charged with criminal acts in the divine law and biblical teaching. After all, even God, the supreme judge, did not expel Adam and Eve from the Garden of Eden before they had a chance to appear and plead their case. These canonists drew on and contributed to the Ius commune, the common law of the civil law systems of Europe, based on the Corpus juris civilis of Justinian, moving European legal systems away from trial by ordeal or even torture such as employed in some inquisitorial proceedings to induce confessions.

As Pennington notes, there were jurists who argued, contrary to the presumption of innocence, that public order often requires limiting the rights of the accused to ensure conviction of the guilty. The Ius commune, and subsequently judges and jurists contributing to the English common law, instead adopted the principle reflected in William Blackstone’s (d. 1780) famous ratio: “The law holds that it is better that ten guilty persons escape than that one innocent suffer.” Blackstone was an authority on jurisprudence at the time of the American founding and early republic, and in his ratio he was distilling a notion that other common law jurists such as Sir John Fortescue and Sir Matthew Hale had also expressed.

Pennington’s point that the English common law isn’t the primary source of the presumption of innocence notwithstanding, we find an assertion of the importance of due process of law, the idea that government must demonstrate guilt via a legal process established in advance before depriving a citizen of life, liberty, or property, in the Magna Charta (1215): “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.”

The presumption of innocence, a legal principle with deep and broad roots in ancient, medieval, and modern tradition and experience, is a central part of the constitutional and legal order in the United States. I’ve seen the principle in action; my fellow jurors and I voted to acquit the defendant because we didn’t believe the prosecution demonstrated guilt beyond a reasonable doubt. No doubt there are many others—some innocent, some guilty—who are today not incarcerated or tagged with criminal records because of the presumption of innocence. Such is the fruit of this foundational principle of legal administration, a bulwark of constitutional liberty where it is honored.

Ben Peterson is an assistant professor of political science at Abilene Christian University.

 

 

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Principle of Due Process of Law

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Guest Essayist: James C. Clinger
Principle of Due Process of Law

Essay Read by Constituting America Founder, Janine Turner

 

 

The principle of due process of law has long been a central principle in Anglo-American jurisprudence. The principle has been formally codified within the Fifth and Fourteenth Amendments of the United States Constitution. However, while the principle has a long history, it has changed dramatically over time, with new interpretation and applications of the principle affecting not only law and administrative practices throughout the country.

In Clause 39 of the Magna Carta, the essence of due process is expressed in the following terms: “No free man is to be arrested, or imprisoned, or disseised, or outlawed, or exiled, or in any other way ruined, nor will we go against him or send against him, except by the lawful judgment of his peers or by the law of the land.”[i] At the very least, this provision limited the power of the crown to take arbitrary or capricious injurious actions that were not sanctioned by law. The phrase “law of the land” later found its way into many of the provisions of American state constitutions, although the phrase “due process of law” was also used, with apparently very similar if not identical meaning. Many of the early state courts, applying this language, considered the protections of due process or the law of the land to be a means of preventing governments from carrying out policies threatening vested rights in property of their citizens, although it could also protect their personal liberty.[ii]

The “due process” language appeared in the federal constitution in the form of the Fifth Amendment, which declares that no person “be deprived of life, liberty, or property without due process of law.” The Fifth Amendment is most famous for its provisions regarding criminal procedures, although it also contains the very significant “takings clause” pertaining to protections for property. There is very little historical record regarding the inclusion of the due process language, and the clause was not invoked by the United States Supreme Court until the 1856 case of Murray v. Hoboken Land & Improvement Company.[iii]    The following year saw the clause invoked again, this time in an infamous ruling in the case of Scott v. Sanford,[iv] more commonly known as the Dred Scott decision.

For much of the period before the Dred Scott case, state courts had generally treated due process as a procedural protection, just as the wording suggests. When government deprived someone of life, liberty, or property, due process required that individuals have a right to a hearing before an impartial arbiter and to confront their accusers. In short, due process did not absolutely prohibit deprivations of life, liberty, or property by government but did require government to do so only in a manner that contained expected legal safeguards. What emerged in the Dred Scott decision was a judicial concern for the substance of government action, a view that has come to be known as “substantive due process.” To some, substantive due process is an oxymoron concept, much like “green, pastel redness,” in the words of John Hart Ely.[v] In this decision, Chief Justice Roger Taney, joined by six other justices, ruled that the federal government had deprived a slaveholder of property without due process of law by forbidding slavery in free territories under the Missouri Compromise. This decision was essentially about the substance of the federal government’s position on slavery and had little to do with the process by which that policy came into being or the way in which it was enforced. The decision was immensely controversial and must be considered one of the key events that precipitated the Civil War.

After the war, Congress proposed and the requisite number of states ratified the Fourteenth Amendment to the Constitution, which includes a due process clause that is applicable specifically to the states, rather than just the federal government. It should be noted that most state constitutions already had due process clauses at the time the Fourteenth Amendment was ratified, but this new provision involved the federal government in ensuring that due process was followed. These protections were intended to provide a legal guarantee of due process for the recently freed slaves and their descendants in all states, including the states that had promoted slavery prior to the Thirteenth Amendment. Of course, the language was quite broad, offering a guarantee of due process to all persons.

Many states, however, found ways to circumvent the due process clause, largely because the provisions applied to public action, rather than private activities. In some cases, the clause was used by business organizations who believed that state regulations deprived them of property without due process of law. In the case of Lochner v. New York, the Supreme Court invoked essentially substantive due process arguments to strike down a New York law limiting the working hours of bakers.[vi] In that case, the plaintiff successfully argued that the state law denied him property that could have been generated if his freedom to contract had not been denied by the regulation. By the 1930s, the Supreme Court stepped away from economic versions of substantive due process arguments, but in the 1960s and thereafter began to identify a doctrine of individual privacy that is not explicitly based on specific provisions of the Constitution but which appears to be a socially liberal version of substantive due process.[vii]

Another implication of the Fourteenth Amendment’s due process clause is what has been called the “selective incorporation” of the Bill of Rights. What this doctrine means is that some if not all provisions of the Bill of Rights, which originally limited the actions of the federal government, are now applied to the state governments. It is not clear that the drafters of the Fourteenth Amendment had any form of incorporation in mind when the due process clause was written. The Supreme Court did not clearly apply this doctrine until 1925 in the Gitlow v. New York decision that applied the First Amendment’s protection of freedom of speech to state governments.[viii] No majority of the Court has ever concluded that the entirety of the federal constitution applies to the states, but the Court has concluded that the Fourteenth Amendment selectively incorporates only those rights that are “of the very essence of a scheme of ordered liberty.”[ix] Over time, through incremental decisions, the Court has incorporated most of the Bill or Rights. The few exceptions include such provisions as the Third Amendment’s prohibition against the quartering of soldiers, the grand jury indictment requirement in the Fifth Amendment, and the Seventh Amendment’s stipulation that a jury trial be available for suits where the value in controversy exceeds twenty dollars.

Over the last sixty years, the due process clause of the Fourteenth Amendment has taken on new meaning because the definitions of property have changed. The language of the clause indicated that due process must be provided when the state deprives “life, liberty, or property.” In cases involving capital punishment, the government clearly must supply due process. In fact, in such cases the government is compelled to provide exceptional procedural protections. In cases involving arrest or incarceration, obviously the government is obligated to provide due process. Traditionally, when governments deprive individuals of property they are involved in activities such as eminent domain or regulations that affect personal and corporate income. But beginning in the 1960s, the courts began to perceive that individuals could have a property interest in various kinds of government benefits, which could include welfare or disability payments, public contracts, government licenses or permits, or even public employment. In 1968, the Supreme Court ruled that welfare recipients had a property interest in the receipt of their payments, so that the state of New York could not terminate payments without first having a public pre-termination hearing.[x] A few years later, applying the Fifth Amendment’s due process clause, the Court ruled that recipients of Social Security disability checks were entitled to some due process, but not as much as in the case at issue in Goldberg v. Kelly. With disability cases, post-termination hearings would be sufficient, because the Court reasoned that other interests must be “balanced” with those of the individual claimants.[xi] The courts have continued to ponder very particular circumstances in individual cases to determine how much and what kind of process is due in very particular situations.[xii]

The last issue that this essay examines is the ambiguous issue of what constitutes public action. The due process clauses of the Fifth and Fourteenth Amendments apply to public entities, not private firms or organizations. But can a private organization be subject to due process requirements if it is acting pursuant to public policies?[xiii] Of course, there is also a dispute regarding what constitutes a policy? Would a guidance document issued by a government agency be considered a public policy? A statute enacted by a legislature no doubt would be a public action. Generally speaking, a rule issued by a government agency under a legislature’s delegated authority would be considered a public action, since it would normally be considered legally binding. A guidance document or an interpretive rule would not, strictly speaking, be considered legally binding, but agencies may threaten investigations or the loss of future grant funds or contractual dollars if a private organization is not in compliance with directives that are not formally recognized as legally binding. The case law on these issues is still developing, but recent cases indicate that private organizations acting under the influence of government may be liable if they do not offer due process protections, even if the policy that they are following is quite informal. For example, Cornell University, a private institution, has been challenged by a dismissed faculty member for following irregular investigative procedures derived in part from the Title IX guidance handed down by the Office of Civil Rights within the Department of Education.[xiv]

James C. Clinger, Ph.D., is an emeritus professor of political science at Murray State University. His teaching and research has focused on state and local government, public administration, regulatory policy, and political economy. His forthcoming co-edited book is entitled Local Government Administration in Small Town America.

[i] Magna Carta, Clause 39.  Accessed July 7, 2023 from Magna Carta Project – 1215 Magna Carta – Clause 39 (uea.ac.uk)

[ii] Inglis, Laura. “Substantive Due Process: Continuation of Vested Rights?” The American Journal of Legal History 52, no. 4 (2012): 459–97.

[iii] 18 Howard 272.

[iv] 60 US 393 (1857)

[v] John Hart Ely, 1980.  Democracy and Distrust: A Theory of Judicial Review.  Cambridge: Harvard University Press, p. 18.

[vi] 198 US 45 (1905)

[vii] See, for example, Griswold v. Connecticut 381 US 479 (1965).

[viii] 268 US 652 (1925)

[ix] 302 US 319 (1937)

[x] 397 U.S. 254 (1970)

[xi] 424 U.S. 319 (1976)

[xii] Shapiro, Sidney A., and Richard E. Levy. 2005. “Government Benefits and the Rule of Law: Toward a Standards-Based Theory of Due Process.” Administrative Law Review 57 (1): 107–53.

[xiii] Verkuil, Paul R. 2005. “Privatizing Due Process.” Administrative Law Review 57 (4): 963–93.

[xiv] Vengalatorre v. Cornell University.  2022.  United States Court of Appeals for the Second Circuit.   Docket No. 20-1514.

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Principle of a Political System with Criminal and Civil Law

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Guest Essayist: James C. Clinger

 

Essay Read by Constituting America Founder, Actress Janine Turner

 

“…it ought not to be overlooked, that such an additional accumulation of power in the judicial department would not only furnish pretexts for clamor against it, but might create a general dread of its influence, which could hardly fail to disturb the salutory effects of its ordinary functions…There is nothing, of which a free people are so apt to be jealous,, as of the existence of political functions, and political checks, in those, who are not appointed by, and made directly responsible to themselves.” – Joseph Story, United States Supreme Court Justice appointed by James Madison, Commentaries on the Constitution of the United States: With A Preliminary Review of the Constitutional History of the Colonies and States, Before the Adoption of the Constitution. Published in 1833.

The above quotation from Joseph Story, an associate justice on the United States Supreme Court, is drawn from his discussion of the United States Senate, and more specifically from his analysis of the role of the Senate in the impeachment process. Story’s analysis is an insightful illustration of what is sometimes called the separation of powers, but which some observers call “separate institutions, sharing powers.”[1]

In Article I, Section 1 of the United States Constitution, the Framers wrote that “all legislative powers are vested in a Congress.  Article II of the Constitution discusses executive powers, and Article III covers judicial powers, but notably the adjective “all” is absent from the text of those articles. Only in the first article does the text emphasize the comprehensive nature of the powers vested in Congress. To make sense of this language and to contrast it with the empowering language written for the executive and judicial branches requires us to have some understanding of what words such as “legislative” and “executive” and “judicial” actually mean. Virtually all dictionary definitions describe the word “legislative” as pertaining to the making or enacting of laws. However, that definition is of little use to us if we do not have any particular idea of what a law actually is. Definitions of “law” are a bit more varied, in part because the definitions sometimes refer to regularities in natural phenomena with a common causal pattern (e.g., the law of gravity). In a constitutional context, law is generally regarded to be general rules made by government, using a proper procedure not forbidden to the government, which the government enforces with the use of penalties. Those penalties may take the forms of civil and/or criminal actions. This legislative power stands in contrast to the power of the executive, which is a word drawn from the Latin word exsequor, which means “to follow thoroughly.”[2] Ironically, the executive function has come to be known as a matter of leadership, rather than as the role of a follower. In the case of a government executive, the executive function is a matter of following or administering the rules enacted through a legislative process. The judicial power is generally a matter of making decisions regarding a legal matter in which there are two or more contending parties. Unlike the legislative power, which is applicable to all within a community, and accessible to all in a republic, the application of the judicial power has immediate effect upon the particular parties standing before the court. However, the judgments of an appellant court may become precedents that would have impact on other parties more generally.

In the case of impeachment, the Constitution authorizes a legislative function that in some respects resembles a judicial process.   Article II, Section 4, of the Constitution specifically states that the president, the vice-president, and all civil officers of the United States may be removed from office “on Impeachment for, and Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors.” This is a process that makes decisions regarding particular individuals accused of high crimes and misdemeanors. It is not a process that implicates whole classes of individuals or entire categories of behaviors, but a particularized decision about specifically identified individuals. The cause of action for an impeachment action is some kind of “High Crime or Misdemeanors,” which implies the possibility of a criminal proceeding. Nonetheless, as Joseph Story points out, impeachment is not considered a judicial process. No punishment beyond removal from office can be ordered through impeachment. In these instances, a civil officer accused of misconduct is examined by the House of Representatives, a chamber made up of elected individuals. Upon an impeachment vote by the House, the members of the Senate, acting as representatives of the states, consider whether or not to remove the civil officer.

As Story noted, a “free” public would be “jealous” of its power to use their elected, political representatives to make decisions on the removal of civil officers found to be guilty of misconduct. That kind of decision, if made by unelected judges, would outrage the public. As is often the case, the public has expectations about what kinds of decisions an institution within the government should make. Of course, since Joseph Story’s time public perceptions of the proper institution to address different issues may have changed dramatically. Views on the separation of powers have often changed over time. Recent events suggest that much of the public has a very results-oriented view of public decisions, without considering which institution is constitutionally authorized to make important policy choices. These views may be quite short-sighted, since an institution which usurps the powers of other institutions may occasionally make decisions favored by the public, but over the long term may accumulate power that will threaten individual rights and the aggregate interests of the public.

James C. Clinger, Ph.D., is an emeritus professor of political science at Murray State University. His teaching and research has focused on state and local government, public administration, regulatory policy, and political economy. His forthcoming co-edited book is entitled Local Government Administration in Small Town America.

[1] Richard Neustadt, Presidential Power: The Politics of Leadership.   New York: Wiley (1964), p. 42.

[2] https://en.wiktionary.org/wiki/exsequor#Latin

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Principle of Equal Under the Law

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Guest Essayist: Daniel A. Cotter

Essay Read by Constituting America Founder, Actress Janine Turner

 

From the beginning of our nation’s founding, the concept that all are equal under the law and have equal justice under law has been aspirational. But in the late 1890s, with the Supreme Court of the United States’ Fourteenth Amendment jurisprudence, the concept became concrete. Questions remain about whether the concept has been fully fulfilled.

The Idea

The concept of equal under the law is pretty straightforward. It means that regardless of race or color, political views, sex, religion, or other characteristics, justice is blind and everyone is treated the same and equally under the law. From the most powerful to the penniless, all are to be treated equally under the law, from due process rights to the rights under the Fourth and Fifth Amendments. A mental image of the concept can be had by taking a look at statues of Lady Justice, who has balanced scales before her and a blindfold over her eyes, so that impartiality is the standard by which all under the law are judged.

The Fourteenth Amendment

Some have referred to the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments as the “Second Founding.” The Fourteenth Amendment language provides for equal protection, Section 1 ending, “nor deny to any person within its jurisdiction the equal protection of the laws.”  Blacks were the intended beneficiaries of the language, but in its early days after ratification, the Equal Protection Clause was not always used to benefit the intended beneficiaries.

The Language of Equal Justice Under Law

In 1891, in a case, Caldwell v. Texas, 137 U.S. 692 (1891), Chief Justice Melville Fuller wrote in a Fourteenth Amendment case (emphasis added), “By the Fourteenth Amendment, the powers of the states in dealing with crime within their borders are not limited, but no state can deprive particular persons or classes of persons of equal and impartial justice under the law.” In a second case, Leeper v. Texas, 139 U.S. 462 (1891), the Fuller Court repeated the same language. (The Fuller Court in 1896 in the context of segregation also gave us the language “separate but equal” in Plessy v. Ferguson, 163 U.S. 537 (1896).)

In 1958, in Cooper v. Aaron, 358 U.S. 1 (1958), a post-Brown case involving the State of Arkansas and resistance to integration of public schools, the Court in an unsigned opinion wrote:

“The Constitution created a government dedicated to equal justice under law. The Fourteenth Amendment embodied and emphasized that ideal.”

The United States Constitution itself makes no mention, except for the Equal Protection Clause, of any equality concept.

The Pledge of Allegiance

The concept of equality is embedded in many of our national documents, including the Pledge of Allegiance, which was written in 1892 (around the time of the Texas cases referenced above. The original Pledge read, “I pledge allegiance to my Flag and the Republic for which it stands, one nation, indivisible, with liberty and justice for all.” The words “under God” were added in 1954, during the Red Scare, by President Dwight Eisenhower.

The Supreme Court Building

Prior to the 1930s, the Supreme Court met in the Senate building, with no separate home. Former President William Howard Taft, who became Chief Justice of the United States, worked to establish a place for the Court. Architects suggested the front of the building, the West Pediment, have the phrase, “Equal Justice Under Law,” over the entrance, to remind all that when they stepped before the highest court of the nation, they each were treated with equality. From the beginning, some have debated the phrase and whether the nine justices inside the building have lived up to the aspirational goal.

Roots Go Way Back

Democratic principles have long included notions of equality under the law. For example, in ancient Greece, Pericles wrote of equal justice under law.

From the United States of America perspective, our initial document establishing this Union, the Declaration of Independence, which we recently celebrated, begins in substance with the concept of equality:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

Conclusion

The debate about the law and whether all are treated “equal under the law” remains one of great interest and discussion. Our nation should be one that treats all equally under the law, and may this continue to be a goal we aspire to achieve.

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

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Principle of Justice for All

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Guest Essayist: Andrew Langer

 

Essay Read by Constituting America Founder, Actress Janine Turner

 

The United States Constitution, ratified in 1788, has stood as a beacon of democratic principles and rule of law for over two centuries. One of its most profound contributions is the pursuit of “justice for all,” an ideal engraved in the Pledge of Allegiance. The preamble to the Constitution sets the tone by stating one of the document’s purposes as to “establish Justice.” This phrase signifies the Framers’ intent to create a system of governance that promotes fair treatment and equality under the law, a cornerstone of justice.

“Justice for All,” Generally, in the Constitution

The Constitution’s first ten amendments, known as the Bill of Rights, are crucial to achieving “justice for all.” These amendments protect individual liberties and limit governmental power, thereby ensuring fairness. The Fourth Amendment protects against unreasonable searches and seizures, while the Fifth and Sixth Amendments guarantee rights that are fundamental to a fair trial, such as the right to due process and the right to a speedy and public trial. The Eighth Amendment prohibits cruel and unusual punishments, affirming that punishment must be proportional and humane.

The Fourteenth Amendment, ratified after the Civil War, is another cornerstone in the pursuit of justice. The amendment’s Equal Protection Clause prohibits states from denying any person within their jurisdiction the equal protection of the laws. This provision has been instrumental in combating discrimination and ensuring that all individuals, regardless of their race or other innate attributes, are treated equally in the eyes of the law. Landmark Supreme Court cases, such as Brown v. Board of Education have utilized the Equal Protection Clause to deliver justice to marginalized groups.

The Constitution establishes the judiciary as an independent branch of government, playing a vital role in upholding justice. Article III vests the judicial power in the Supreme Court and other federal courts as Congress may establish. The courts interpret the Constitution and have the power to strike down laws that are unconstitutional, ensuring that the principles of justice are upheld against potential abuses of power.

Lastly, the Constitution itself provides for amendments to adapt to changing societal norms and understandings of justice. The Nineteenth Amendment, which granted women the right to vote, and the Twenty-Sixth Amendment, which lowered the voting age to 18, are examples of how the Constitution can evolve to better realize the promise of “justice for all.”

“Due Process” as the Embodiment of “Justice for All”

The concept of due process and the ideal of “justice for all” are two fundamental principles that underpin the legal systems of free and just societies. At the core of these principles is the commitment to protecting individual rights and ensuring fair treatment for all citizens under the law. Both concepts are deeply intertwined, serving as the backbone of a just and impartial society.

Due process, a concept firmly rooted in the legal framework, is a safeguard from arbitrary denial of life, liberty, or property by the government. It’s a constitutional guarantee that all legal proceedings will be fair and that no person will be deprived of their rights without a fair procedure. The essence of due process is the right to notice and a reasonable opportunity to be heard and defend one’s rights.

The commitment to due process is directly linked to the promise of “justice for all.” It establishes a level playing field in the court system, ensuring that no one is unduly favored or unfairly disadvantaged. This adherence to process and fairness guarantees that every citizen, irrespective of their social, economic, or political standing, has an equal opportunity to present their case and seek justice.

Through due process, the law is applied uniformly, emphasizing the principle that all are equal before the law. This means that every person, regardless of their status, is subject to the same laws and legal proceedings as anyone else, reinforcing the concept of “justice for all.” It embodies the idea that justice should not be the privilege of the few, but the right of all.

Due process is a bulwark against the arbitrary exercise of power by the state. It prevents individuals from being unjustly targeted or punished without substantial evidence and a fair trial. By doing so, it reinforces the ideal of “justice for all,” ensuring that no person is unjustly deprived of their rights or freedoms.

Due process promotes transparency and accountability in the legal system. It requires that legal proceedings be carried out in a fair, open, and consistent manner, which enhances public trust in the system. This transparency ensures that justice is not only done but seen to be done, thus promoting the ideal of “justice for all.”

Due process is intrinsic to the concept of “justice for all.” It guarantees fair treatment, equality before the law, protection against arbitrary power, and promotes transparency and accountability. Without due process, the promise of “justice for all” would be an empty rhetoric. As such, any society committed to justice must also be committed to upholding and enforcing due process.

“Justice for All” and the Supreme Court

While the phrase “justice for all” is not found in the body of the Constitution, the preamble to the Constitution does present a mandate that the Federal Government will “establish justice.” The Supreme Court has often been tasked with interpreting what “establishing justice” means in various contexts and how it should be applied in practice. Most scholars look at four seminal cases in which the Supreme Court has interpreted and applied this mandate: Marbury v. Madison, Wesberry v. Sanders, Plessy v. Ferguson, and Brown v. Board of Education.

First, Marbury v. Madison (1803) was a landmark case in which the Supreme Court, under Chief Justice John Marshall, affirmed its power of judicial review, the power to declare laws unconstitutional. It was a case where the interpretation of “establish Justice” was at the core. The Court held that it was the very essence of justice to ensure that government acts within the limits of the law, and when it doesn’t, there needs to be a mechanism to check and correct it. Judicial review was therefore seen as an essential instrument of justice, ensuring that the laws themselves and the actions of government are just, fair, and align with the Constitution.

Second, Wesberry v. Sanders (1964) centered on the principle of “one person, one vote,” an essential aspect of democratic justice. In this case, the Supreme Court ruled that electoral districts must be roughly equal in population, ensuring that all citizens’ votes carry equal weight. This interpretation of “establish Justice” reflected the belief that justice in a democratic society requires political equality, where each citizen’s voice matters equally in the public decision-making process.

Third, Plessy v. Ferguson (1896) is a historic case that unfortunately reflects a period when the Supreme Court fell short in its mandate to “establish Justice.” The Court upheld state racial segregation laws for public facilities under the doctrine of “separate but equal.” This decision was a significant deviation from the ideal of justice as it endorsed racial discrimination and inequality, contradicting the Constitution’s guarantee of equal protection under the law.

Lastly, Brown v. Board of Education (1954) is a landmark case in which the Supreme Court rectified its previous stance from Plessy v. Ferguson. The Court unanimously ruled that racial segregation in public schools was unconstitutional, stating that “separate educational facilities are inherently unequal.” This case epitomizes the Supreme Court’s role in establishing justice, as it actively sought to dismantle institutionalized racism or uphold the principles of equality and protect the rights of marginalized communities.

“Justice for all” runs as a vein throughout the Constitution—starting with the preamble’s charge that “We the people” will use the Constitution to “establish justice” and then running through the principles embodied therein. Much of this charge is carried out by the Due Process clauses in the Fifth and Fourteenth Amendments, and it has been left to the Supreme Court throughout U.S. history to further ensure that this commission from the Founders to ensure that there is “justice for all” is carried out.

Andrew Langer is President of the Institute for Liberty, as well as Chairman and Founder of the Institute for Regulatory Analysis and Engagement. IFL is a non-profit advocacy organization focused on advancing free-market and limited government principles into public policy at all levels. IRAE is a non-profit academic and activist organization whose mission is to examine regulations and regulatory proposals, assess their economic and societal impacts, and offer expert commentary in order to create better public policies. Andrew has been involved in free-market and limited-government causes for more than 25 years, has testified before Congress nearly two dozen times, spoken to audiences across the United States, and has taught at the collegiate level.

A globally-recognized expert on the impact of regulation on business, Andrew is regularly called on to offer innovative solutions to the challenges of squaring public policy priorities with the impact and efficacy of those policies, as well as their unintended consequences. Prior to becoming President of IFL and founding IRAE, he was the principal regulatory affairs lobbyist for the National Federation of Independent Business, the nation’s largest small business association. As President of the Institute for Liberty, he became recognized as an 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.

Andrew has had an extensive career in media—having appeared on television programs around the world. From 2017 to 2021, he hosted a highly-rated weekly program on WBAL NewsRadio 1090 in Baltimore (as well as serving as their principal fill-in host from 2011 until 2021), and has filled in for both nationally-syndicated and satellite radio programs. He also created and hosted several different podcasts—currently hosting Andrew and Jerry Save The World, with long-time colleague, Jerry Rogers.

He holds a Master’s Degree in Public Administration from Troy University and his degree from William & Mary is in International Relations.

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Mandate or Law: The American Founders on Warning Against Arbitrary, Tyrannical Dictates Diluting Rule of Law

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Guest Essayist: Andrew Langer
Mandate or Law: The American Founders on Warning Against Arbitrary, Tyrannical Dictates Diluting Rule of Law

 

Essay Read by Constituting America Founder, Actress Janine Turner

 

In the realm of United States governance, the terms “mandate” and “law” frequently arise, often creating confusion due to their seemingly overlapping meanings. Both play essential roles in shaping the country’s legal and political landscape, yet they are distinctly different in nature and application—and both must be understood within the context of due process of law, both substantive and procedural.

A law, as per the United States Constitution, is a rule established by the government that dictates the actions of its people. It’s a formal norm that has been approved by a legislative body and, if necessary, signed into effect by the executive branch. Laws are codified in written form and are enforceable by the judiciary. In the United States, federal laws apply to all states and territories, while state laws apply only within their respective jurisdictions.

On the other hand, a mandate in the context of U.S. governance often refers to a policy or requirement that a higher level of government imposes on a lower level. For instance, federal mandates require states or localities to perform certain actions, often under the threat of financial or legal penalties. These mandates may come in various forms, including conditions for receiving federal grants, requirements imposed as a part of federal civil rights laws, or conditions for participating in voluntary federal programs.

Unlike laws, mandates do not necessarily have to go through the same rigorous legislative process. Some mandates are issued by federal agencies as regulations, under the authority granted to them by Congress. Others are issued directly by the executive branch, such as through executive orders.

While a law is a directive that comes with its own enforcement mechanism, a mandate is a requirement that may or may not come with specific penalties for non-compliance. Compliance with a mandate is often tied to the receipt of federal funds. For example, states may be required to comply with certain federal mandates to receive funding for highway construction or education.

In the dynamic landscape of American politics and law, it is essential to note that the boundary between mandates and laws can sometimes blur. As such, ongoing vigilance and discourse are required to ensure the appropriate balance—especially given how both laws and mandates can impact “true” law—which can be viewed within the context of the 5th and 14th Amendments’ guarantees of due process for all citizens,

The founding of the United States was a grand experiment, the creation of a republic aimed at securing the rights and liberties of its citizens. Central to this vision was the rule of law, which the Founders intended as a safeguard against arbitrary and tyrannical rule. The United States Constitution thus enshrines due process as an essential component of legal justice, a bulwark against any effort to dilute the power and relevance of law and order. The twin concepts of substantive and procedural due process, while less known to the general public, are pivotal elements of the due process doctrine and serve as vital tools in safeguarding individual liberties.

Before delving into the importance of both substantive and procedural due process, it is crucial to understand the distinction between the two.

Substantive due process is a doctrine that protects citizens from government actions that could interfere with fundamental rights or liberties. It requires the government to justify any intrusion into personal and economic freedoms with a sufficient and compelling state interest. For instance, the right to privacy and the freedom of speech are protected under this doctrine, and any governmental attempt to restrict these rights must meet a rigorous standard of scrutiny.

Procedural due process, on the other hand, is concerned with the fairness of how a law is applied or a decision is made. It safeguards individuals from arbitrary deprivation of life, liberty, or property by ensuring they receive a fair process, which typically involves notice and an opportunity to be heard. Procedural due process thus protects against the abuse of power, ensuring that the rule of law is upheld even when the government takes necessary actions.

The Founding Fathers were acutely aware of the danger posed by arbitrary laws and mandates that had the force of law but lacked the due process of law. They had experienced firsthand the arbitrary rule of a distant monarch and were determined to construct a system of government that would prevent such abuses.

Substantive due process plays an indispensable role in upholding this vision. By requiring the government to justify any infringement on fundamental rights, it ensures that laws and regulations do not arbitrarily or unjustly infringe on individual liberties. This doctrine serves as a shield, protecting citizens from arbitrary laws that could unduly limit their freedoms.

Procedural due process, meanwhile, acts as a sword, enabling citizens to challenge any governmental actions they believe infringe on their rights. By providing a fair and transparent process for reviewing governmental actions, it ensures that citizens have a meaningful opportunity to contest any perceived injustices.

Timothy Sandefur, a legal scholar, has made significant contributions to the understanding of the phrase “due process of law” in the United States Constitution, specifically emphasizing the importance of the term “of law.” He has argued that “due process of law” is not just about the process itself, but also about the substance of the laws that govern that process, a concept commonly known as substantive due process.

One of the key elements of Sandefur’s argument is the idea that “due process of law” should not be understood as merely a procedural guarantee. Rather, it also provides substantive guarantees against “unfairness.” This understanding is rooted in a deeper interpretation of the Constitution, not limited to the literal wording of the document but also considering its structure, ideas, and history. According to Sandefur, the Constitution’s promise that “no person shall be deprived of life, liberty, or property without due process of law” implies not only that the government must adhere to certain procedures when imposing a deprivation, but also that some acts are inherently off-limits for the government, regardless of the procedures used to implement them​.

Sandefur also discusses the concept of law in this context. He explains that law is the use of government’s coercive powers in service of a general principle of the public good, and it is the opposite of arbitrariness. The law should not be a self-serving tool of those in power. Therefore, the “of law” in “due process of law” ensures that the government’s actions are guided by lawful principles and not by arbitrary or self-serving motives. A lawful government is characterized by general rules that benefit all, rather than specific commands or actions that only benefit those in power. This principle is a fundamental part of due process of law, guaranteeing citizens protection under the general rules that govern society​. In Sandefur’s view, due process of law means that the government may not limit our freedom without good reason. What constitutes a “good reason” is determined by reference to political and legal principles, not merely by legislative whims or self-interest. This view reflects the inherent overlap of “procedure” and “substance” in the understanding of due process of law. To be treated lawfully means to be treated in accordance with general, public principles (substantive) and through established procedures (procedural). Sandefur uses the examples of a vetoed tax bill and a bill establishing an official religion to illustrate the concept of substantive due process. In both cases, even if the procedural steps have been followed, the substantive aspect of the law can make it invalid. The same logic, according to Sandefur, applies to implicit or inherent limits on government power. If the legislature passes a statute that it lacks the authority to make, that statute cannot be considered law, and enforcing it would violate the citizen’s right not to be deprived of life, liberty, or property except by due process of law​​.

In the end, regardless of whether the government is enforcing a law derived from legislation, or a mandate derived from some other government action, the rights to due process must be respected.  Anything short of that respect does serve to dilute “true law” and undermines the protection of the liberty of the people.

Andrew Langer is President of the Institute for Liberty, as well as Chairman and Founder of the Institute for Regulatory Analysis and Engagement. IFL is a non-profit advocacy organization focused on advancing free-market and limited government principles into public policy at all levels. IRAE is a non-profit academic and activist organization whose mission is to examine regulations and regulatory proposals, assess their economic and societal impacts, and offer expert commentary in order to create better public policies. Andrew has been involved in free-market and limited-government causes for more than 25 years, has testified before Congress nearly two dozen times, spoken to audiences across the United States, and has taught at the collegiate level.

A globally-recognized expert on the impact of regulation on business, Andrew is regularly called on to offer innovative solutions to the challenges of squaring public policy priorities with the impact and efficacy of those policies, as well as their unintended consequences. Prior to becoming President of IFL and founding IRAE, he was the principal regulatory affairs lobbyist for the National Federation of Independent Business, the nation’s largest small business association. As President of the Institute for Liberty, he became recognized as an 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.

Andrew has had an extensive career in media—having appeared on television programs around the world. From 2017 to 2021, he hosted a highly-rated weekly program on WBAL NewsRadio 1090 in Baltimore (as well as serving as their principal fill-in host from 2011 until 2021), and has filled in for both nationally-syndicated and satellite radio programs. He also created and hosted several different podcasts—currently hosting Andrew and Jerry Save The World, with long-time colleague, Jerry Rogers.

He holds a Master’s Degree in Public Administration from Troy University and his degree from William & Mary is in International Relations.

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Principle of Consent of the Governed: Upholding Appropriate Boundaries Against Governing by Tyranny

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Guest Essayist: Winfield H. Rose
James Otis (1725-1783) Author of “Rights of British Colonies Asserted and Proved” pamphlet, 1763.

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

“…that the King with and by the authority of parliament, is able to make laws and statutes of sufficient force and validity to limit and bind the crown, and the descent, limitation, inheritance and government thereof” is founded on the principles of liberty and the British constitution: And he that would palm the doctrine of unlimited passive obedience and non-resistance upon mankind, and thereby or by any other means serve the cause of the Pretender, is not only a fool and a knave, but a rebel against common sense, as well as the laws of God, of Nature, and his Country…These are their bounds, which by God and nature are fixed, hitherto have they a right to come, and no further…The sum of my argument is, That civil government is of God…That this constitution is the most free one, and by far the best, now existing on earth: That by this constitution, every man in the dominion is a free man: That no parts of his Majesty’s dominions can be taxed without their consent: That every part has a right to be represented in the supreme or some subordinate legislature…” – James Otis, Rights of British Colonies Asserted and Proved, pamphlet, 1763.

James Otis, Jr. was born in and lived all his life in Massachusetts. He was a contemporary of both John and Samuel Adams and was a prominent and effective proponent of American independence. He lived from 1725 to 1783.

Known for his pamphlet “Rights of British Colonies Asserted and Proved,” published in 1763, he was very offended by the Writs of Assistance adopted by the British government in 1761. Otis may or may not have coined the phrase “Taxation without representation is tyranny” but he certainly believed and proclaimed it. According to the Smithsonian Magazine (https://www.smithsonianmag.com/history/transformative-patriot-who-didnt-become-founding-father-180963166/),

“As John Adams told it, the American Revolution didn’t start in Philadelphia, or at Lexington and Concord. Instead, the second president traced the nation’s birth to February 24, 1761, when James Otis, Jr., rose in Boston’s Massachusetts Town House to defend American liberty. That day, as . . . a rapt, 25-year-old Adams—listened, Otis delivered a five-hour oration against the Writs of Assistance, sweeping warrants that allowed British customs officials to search any place, anytime, for evidence of smuggling. . . . Otis denounced the British king, parliament, and nation as oppressors of the American colonies—electrifying spectators. ‘Otis was a flame of fire,’ Adams recalled years later. ‘American Independence was then and there born.…Then and there was the first…opposition to the arbitrary claims of Great Britain.’”

We say Washington was the father of our country and Madison was the father of the Constitution. According to Adams, we likewise need to say that Otis was the father of our independence.

Tyranny was an issue for our revolutionary forefathers but it was not the primary issue. The primary issue was legitimacy or, more accurately, the lack of legitimacy. The lack of legitimacy created the tyranny under which our American ancestors were then living, and that lack of legitimacy was due to the absence of the consent of the governed. The absence of this consent could have been remedied by the British government’s granting their American colonies representation in Parliament but it was too arrogant and stubborn to do so. They paid for this mistake with the loss of their American empire.

Looking back with hindsight, one may ask why the British made this political blunder. Careful arithmetic would have shown the numerical threshold beyond which they should not go, and they could have granted the Americans a safe number of representatives in Parliament, thereby acquiescing to their demand and quieting the uproar. This would have been a practical solution, but the British were not interested in a practical solution. They adhered to the principle that the American colonists were neither citizens nor subjects but vassals without rights totally subject to rule from London.

One might also reply that each American colony had a legislative assembly, and that is true. But, according to the complaints against the British government Jefferson listed in the Declaration of Independence, by the 1760s those assemblies had been reduced to irrelevance.

We would be remiss if we did not remember that King George III had ascended the throne in 1760 at the age of 22 and that the French and Indian War (1754-1763) was underway at this time. This war and its aftermath created severe financial problems for the treasuries of both Britain and France which, in turn, then led to ill-fated attempts to raise taxes and ultimately to both the American and French Revolutions.

Not only had the French and Indian War been costly to fight, it left the British with a very long western frontier to defend, a frontier that extended all the way to the Mississippi River. This was the time of Daniel Boone when American settlers wanted to move westward past the Appalachians. Defending this frontier was going to be costly. Thereby came the need for tax measures such as the Stamp Act.

A line in the Otis quote at the beginning of this essay is especially informative:

“The sum of my argument is . . . That this constitution [the British constitution] is the most free one, and by far the best, now existing on earth: That by this constitution, every man . . . is a free man: That no parts of his Majesty’s dominions can be taxed without their consent: That every part has a right to be represented in the supreme or some subordinate legislature.”

Otis and many others correctly believed the existing British constitution, based on the Glorious Revolution of 1688 and the English Bill of Rights of 1689, was “by far the best now existing on earth.” The problem was that King George III and Parliament had corrupted it (as Edmund Burke correctly observed) and thereby had intolerably violated the natural rights of their fellow citizens in America. When the British created their Commonwealth of Nations many years later, knowingly or not, they followed the principles Otis enunciated in 1763.

Winfield H. Rose, Ph.D., is Distinguished Professor of Political Science Emeritus at Murray State University.

 

 

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Careful Observance Upon Forming and Executing Laws: Principle of the Rule of Law, Not of Men

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Guest Essayist: George Landrith
Careful Observance Upon Forming and Executing Laws: Principle of the Rule of Law, Not of Men

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

The Rule of Law comprises a number of important legal doctrines designed to make our governmental system and our society more just and fair. It starts with the idea that we are all equal before the law and accountable to the same laws. But it also includes the concept that those laws should be made in public and not in secret; that the law should be evenly applied and not selectively applied, that all laws must be applied prospectively — meaning a law cannot punish behavior that occurred before the law’s existence; that government power cannot be exercised arbitrarily or capriciously, and that we should all have access to due process and an independent and fair-minded decision maker before our life, liberty or property can be taken from us.

For most of human history, most people have been ruled by individuals who had almost unquestioned power. For example, for much of Europe’s history, it was ruled by kings, who claimed “the divine right of kings” – meaning that no one on earth could question or challenge their rule. Such a ruler could imprison those he or she didn’t like or found annoying simply on a whim. And they had power to make laws that would be applied solely to those they didn’t like or had some grievance with.

Magna Carta officially ended the “Divine Right of Kings” by placing very modest limits on the power of the king. But modest limits on the arbitrary rule of men doesn’t qualify as the Rule of Law.

Fortunately, America’s Founders saw the Rule of Law as a foundational element of the society and nation that they sought to build. Thomas Paine in his seminal work, Common Sense, wrote that “in America, the law is King…” — meaning that there would be no king to rule over Americans. The law, as an impartial standard, would govern Americans.

Part of our national heritage in the Rule of Law means that we ought not care whether we like or dislike the accused, or whether we agree with the politics of the accused. We ought to be concerned only about the law and its equal and fair application. The Rule of Law is a major check against the abuses of government.

Soviet dictator Joseph Stalin once described his totalitarian view of the law as — “show me the man, and I’ll find the crime.” That is obviously not the Rule of Law. That is a prime example of the arbitrary and capricious rule of man.

While America has been an example to the entire world of the Rule of Law, it has not always been perfect in its application. But our commitment to the Rule of Law is noteworthy all over the globe and it has helped to make us “the land of the free and the home of the brave.”

America cannot survive as a beacon of hope and a land of freedom and opportunity for all if the Rule of Law is sacrificed upon the alter of political expediency. Americans of all political stripes must demand that the government play by the rules, live within the limitations placed upon it by our United States Constitution, and honor and uphold the principles of the Rule of Law.

One informal test that can help us judge the relative health of the Rule of Law in our nation is: does the government treat us like subjects or citizens?

Sir Thomas More lived from 1478 to 1535 AD and was an English lawyer, judge, and author. He was a strong and heroic advocate of the Rule of Law. In 1535, More did not attend the coronation of King Henry VIII’s latest wife, Anne Boleyn as Queen. Not attending the coronation was not an act of treason and, in a letter, More had wished the King and his new bride much happiness. And while most of the nation had not attended, More’s absence angered the King because of his reputation and influence.

After a number of failed attempts to punish More for not attending the coronation, the King came up with a plan to entrap More. He demanded that More sign a statement that King Henry was the head of both the nation of England and the Church of England. More had made no statements against the King’s authority, but he was unwilling to sign such a statement because it required him to repudiate his Catholic faith.

More made it clear to the King that he was not refusing to sign because he challenged the King’s authority. He simply was unwilling to repudiate his faith. But this did not matter; the King had him arrested and imprisoned in the Tower of London and eventually executed for treason.

A Man for All Seasons is a play and movie based upon Sir Thomas More’s life. In the play, the King pressures More to sign the statement and promises to pardon him if he will sign. More asks the King, I’ve acknowledged your right to rule and your Queen, “then why does your Grace need my poor support?”

The King’s response was, “Because you’re honest… and what is more to the purpose, you’re KNOWN to be honest. There are those … who follow me because I wear the crown; and those … who follow me because they are jackals with sharp teeth and I’m their tiger; there’s a mass that follows me because it follows anything that moves. And then there’s you….”

Later, a friend of More’s tried to talk him into signing a statement to avoid the King’s wrath by saying, “Oh, confound all this…. Thomas, look at those names…. You know those men! Can’t you do what I did, and come with us, for fellowship?” More responded, “And when we stand before God, and you are sent to Paradise for doing according to your conscience, and I am damned for not doing according to mine, will you come with me, for fellowship?”

Later, Oliver Cromwell tried to bully More into signing the statement. More objected to being bullied and said, “You threaten like a dockside bully.” Cromwell responded, “How should I threaten?” More responded, “With justice.” Cromwell, then replied, “Oh, justice is what you’re threatened with.” Thomas More said, “Then I’m not threatened.” Obviously, More understood that a process focused on right and wrong and justice and fairness would not harm him.

Another interesting conversation in A Man for All Seasons shows why the Rule of Law must protect everyone’s rights — no matter how unpopular or disliked. More’s son-in-law, William Roper, while discussing the Rule of Law and More’s defense of it asked, “So, now you give the Devil the benefit of law!” More responded, “Yes! What would you do? Cut a great road through the law to get after the Devil?” Roper responded, “Yes, I’d cut down every law in England to do that!” Sir Thomas More’s response is both insightful and correct:

“Oh? And when the last law was down, and the Devil turned ‘round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil the benefit of the law, for my own safety’s sake!”

More was no fan of the Devil as he was a very religious man and was executed because of his commitment to his faith and refusal to bend to the will of the King. But his point was important and true — we cannot have laws and judicial processes that only protect those that we like or approve of. Even those we despise must be afforded the benefits of the Rule of Law or we do not have the Rule of Law.

Thomas Paine’s description of America as a place where the law is king will hopefully always be true. Our nation’s freedom depends upon it. Thus, Americans who value freedom must, as Thomas More did, uphold, support and champion the Rule of Law. There is no freedom without it.

George Landrith is the President of Frontiers of Freedom. Frontiers of Freedom, founded in 1995 by U.S. Senator Malcolm Wallop, is an educational foundation whose mission is to promote the principles of individual freedom, peace through strength, limited government, free enterprise, free markets, and traditional American values as found in the Constitution and the Declaration of Independence.

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Principle of a Judicial Branch for Ensuring Justice Without Political Interference

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Guest Essayist: Eric C. Sands
Supreme Court of the United States, photo by Joe Ravi.

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

The United States Constitution does not say much about the Judiciary, listing it third among the articles dealing with the main institutions of government. For some, this implies that the Judiciary was intended to be last in order of importance and the most insignificant of the institutions overall. While the three branches were intended to be equal in terms of legitimacy and functionality, they were not equal in terms of power.  The Legislature wielded the awesome power of the purse and directed the affairs of government. The Executive held the only slightly less impressive power of the sword and executed the will of the Legislature. But what of the Judiciary? What power does it hold and what was its role in constitutional government intended to be?

One might be forgiven for thinking that Article III was something of an afterthought. There is a sense to the Article of being incomplete and not fully thought out. It begins by saying that the judicial power shall be given to a Supreme Court of the United States, but then leaves a lot unsaid. The Article never defines what the judicial power is or how it is used. It never explains the nature of the judicial power or how the Judiciary might go about using it. Its existence in the Article is a mystery. The Article then goes on to tell us only a little about the Court. Its size will be determined by Congress. Judges will be appointed by the president and confirmed by the Senate. Yet no qualifications are listed to be a Supreme Court Justice. There is no age requirement, no experience requirement. In fact, a person does not even have to possess a law degree.

The Article continues saying that the judges will hold their tenures for life on terms of good behavior, a provision justified to insulate judges from the whims of public opinion that is much more likely to sway the other branches of government. Following this, there is the Cases and Controversies Clause outlining what kinds of cases the Supreme Court can hear. This includes, controversially, cases under the equity power which is not clearly defined by the Constitution. A distinction between original and appellate jurisdiction comes next, followed by some clauses dealing with jury trials and trial for treason. And that is it. Compared to what preceded it in Article I and Article II, this is not much.

The lack of content in Article III, according to one of the Founders, was by design. It was a reflection on the nature of the institution and the more subservient role it played in American constitutional government. In Federalist 78, Alexander Hamilton gave a defense of the Judiciary and argued that the Court possessed neither force nor will, but merely judgment. This made the Court the “least dangerous” branch of government and the least threatening to the Constitution. According to Hamilton, “it proves incontestably that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks.” This further adds to why the judges need lifetime tenures and such radical independence – it is the only way to ensure justice without the interference of the political branches of government or public opinion.

So, we see the task of the Supreme Court as interpreting the laws passed by Congress, exercising its judgment over what those laws mean and how they should be applied. But is this all? Not according to Hamilton and other Federalists. The Court also had a more fundamental duty to protect the Constitution. It preformed this function through the power of judicial review. Judicial review is the power of the Court to determine that government actions conflict with the Constitution and are, therefore, null and void. It was first used in a Supreme Court case, Marbury v. Madison, but was held to be a part of the Court’s power by many Federalists at the founding. Anti-federalists, such as Brutus, denied that the Court possessed this power and claimed that if it had been intended to give the Court such an extraordinary power, the Founders would have written it into the Constitution. The president cannot not even completely override a bill passed by Congress, so it would be incredible if this unelected body of judges could do what the president could not. If the Framers had intended judicial review, they would have enumerated it.

Federalists countered by saying that the power of judicial review was enumerated when Article III said that the judicial power shall be vested in a Supreme Court. What else could the judicial power be but the power of judicial review? Though it was not stated explicitly in the Article, it was clearly implied in its language. But there was an even stronger argument for judicial review. If the Court lacked this power, how would it play a role in the separation of powers and checks and balances? The Court would effectively be relegated to playing the role of an advisory body, making suggestions to the other branches about constitutionality but not having the power to compel anyone to listen. This would effectively destroy the purpose of an independent judiciary and render the Court not just weak but impotent. Thus, judicial review must be part of the design of constitutional government and a vital part of the principal of the judicial branch.

Eric C. Sands is Associate Professor of Political Science and International Affairs at Berry College. He has written a book on Abraham Lincoln and edited a second volume on political parties.

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Principle of an Executive Branch, Strong but a Role Accountable to the People

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Guest Essayist: Ben Slomski

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

The delegates who met in 1787 for the Constitutional Convention faced a difficult task when it came to designing the nation’s executive branch. Americans of the time tended to look upon a strong executive with suspicion. This was a natural response, given the previous experience with the English monarchy. Under the Articles of Confederation, there was no independent executive. This lack of a strong executive turned out to be one of the central defects of the Articles. National authority was often just ignored by the states and disobedience towards democratically-enacted laws culminated in Shays’ Rebellion in Massachusetts. Delegates at the Constitutional Convention were challenged with creating an independent executive who would be powerful enough to enforce the laws effectively yet not so strong that he could overpower the other republican institutions of government. The result of this work was the American presidency.

The text of the United States Constitution recognizes the difficult nature of executing the law. Authority is placed in the president by the vesting clause in Article II, Section 1 which states that “The executive Power shall be vested in a President of the United States of America.” This should be contrasted with the vesting clause in Article I, Section I which grants certain legislative authority to Congress: “All legislative Powers herein granted shall be vested in a Congress of the United States.” Congress only receives the legislative powers specifically granted to it in the Constitution. The executive power granted to the president, however, is not limited to certain powers “herein granted.” Some specific examples of the president’s executive power are given in Section 2. He is the Commander in Chief of the military, can pardon crimes against the U.S., and makes treaties with foreign nations, among other powers. The powers listed in Section 2 are not an exhaustive list but rather specific instances of the way in which executive power can be exercised.

Article II, unlike Article I, does not comprehensively detail the scope of the president’s executive power because it cannot be precisely defined. The president’s function is to execute the laws passed by Congress and to “preserve protect and defend the Constitution” as enumerated in the presidential oath of office. What is necessary to enforce the law and defend the nation depends on the innumerable variety of circumstances that will occur in human life. As human beings cannot predict every emergency that might occur, they cannot list every single circumstance in which the executive can act without restricting the president during an unforeseen crisis. Therefore, the Founders wisely left the executive power broadly defined so that the president can act in whatever situation that might arise.

The broad nature of executive power does not mean that the president’s power is unlimited or arbitrary. For the president to have constitutional power to do something, the act must be executive, meaning that it does not make law but carries out existing laws. The president cannot usurp legislative power from Congress just as Congress cannot interfere with the president’s execution of the laws. Presidents also cannot nullify congressional laws by refusing to execute them. The president’s broad power is constrained by the constitutional system in which it is placed. Senate approval is needed for the ratification of treaties and the confirmation of many presidential appointees. Congress can always restrict the president through the denial of funding or impeachment. The Supreme Court can review the constitutionality of executive actions in legal cases. The people retain the ultimate check of voting the president out of office. The president is neither a dictator nor a pawn of Congress.

The constitutional insight that there must be a powerful and independent president who is defined by the executive functions he must perform was expressed well by Alexander Hamilton in Federalist No. 70. Here he wrote that:

“Energy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks: it is not less essential to the steady administration of the laws; to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy.”

Government is ineffective unless its laws are obeyed and individuals will not respect the law unless there is a strong enough executive to ensure there is sufficient force behind the laws. A powerful president is of course needed to command the military and defend the nation from invasion. It is equally important to ensure that the government is well-administered and that laws are enforced consistently and effectively.

The genius of the Constitution is that it reconciles the need for a powerful executive with the constraints of republican government. George Washington embodied this idea as the first president. He recommended legislative measures to Congress, vetoed bills on both constitutional and policy grounds, proclaimed American neutrality between France and Britain, and personally led federal troops to suppress the Whiskey Rebellion. These energetic actions were not taken as the personal prerogatives of a king but rather as the exercise of constitutional power granted by the people to a republican servant. Washington understood the president to be the “Chief Magistrate” who must remain aware “of the confidence which has been reposed in me by the People of United America.” The executive’s power must be wielded with the humility and prudence required of a republican governing statesman.

Benjamin Slomski is Assistant Professor of History and Political Science at Ashland University.

 

 

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Principle of a Legislative Branch Within a System of Government Closest to the People

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Guest Essayist: Scot Faulkner
In 1619, the Virginia House of Burgesses met in the Jamestown Church, the first elected legislative body in America.

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

In advocating for establishing the Legislative Branch in the United States Constitution, James Madison and Alexander Hamilton, writing under “PUBLIUS,” stated in Federalist No. 52:

“First. As it is essential to liberty that the government in general should have a common interest with the people, so it is particularly essential that the branch of it under consideration should have an immediate dependence on, and an intimate sympathy with, the people. Frequent elections are unquestionably the only policy by which this dependence and sympathy can be effectually secured…. It is a received and well-founded maxim, that where no other circumstances affect the case, the greater the power is, the shorter ought to be its duration.”

Madison and Hamilton explained how the Legislative Branch was fundamental to Americans remaining in control of their own government in FEDERALIST No. 57:

“The House of Representatives is so constituted as to support in the members an habitual recollection of their dependence on the people. Before the sentiments impressed on their minds by the mode of their elevation can be effaced by the exercise of power, they will be compelled to anticipate the moment when their power is to cease, when their exercise of it is to be reviewed, and when they must descend to the level from which they were raised; there forever to remain unless a faithful discharge of their trust shall have established their title to a renewal of it.”

Binding the Legislative Branch to the people built upon the precedents from America’s colonial period.

The Royal Charter that established Jamestown in Virginia evolved from governance by the Charter holders into governance by the King’s Representative (Royal Governor) and his Advisory Council. When the settlers demanded their own voice, the Virginia House of Burgesses, in 1619, became the first democratically elected legislative body in America.

The House of Burgesses became a proving ground for what would become the U.S. House of Representatives. Drawing upon British tradition, revenue and spending bills originated in the House instead of the “upper chamber.” Drawing from British tradition, the members of the House held their positions for short periods of time, the better to be held closely accountable by those they represented.

Tying government closely to the people is foundational to America. The reason America is a “federal” system, and not a “national system,” is to preserve state and local government. This assures most public policy and public activity is closest to the people it serves and reflects their diversity. Serving a New York City neighborhood is very different from serving a rural community in Montana.

America’s diversity is embodied in our nation’s motto: “E Pluribus Unum” – out of many, one. Governing the nation of America is institutionalized in the Tenth Amendment of the U.S. Constitution:

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

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

Except for Switzerland and Germany, European governments are national. Their policy and programs are based on “one size fits all.” National governments ultimately amplify regional and ethnic tensions. England’s Acts of Union with Scotland (1707) and Ireland (1801) spawned countless conflicts. Today, Scotland and Wales have separate Parliaments. Ireland divided itself into a Free State and Northern Ireland in the wake of years of violence (1921). England leaving the European Union in January 2020 reflected what happens when a weak parliament was dominated by a powerful and unaccountable bureaucracy.

America’s federal structure, emphasizing government closest to the people, was chronicled by the Frenchman, Alexis Clerel, the Viscount de Tocqueville.

“Democracy in America” was published in two volumes (1835 and 1840). It remains a foundational document describing how Americans benefit from local government.

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

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

de Tocqueville recognized how Americans preserving local governance serves as a model for a better world:

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

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

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

Scot Faulkner is Vice President of the George Washington Institute of Living Ethics at Shepherd University. He was the Chief Administrative Officer of the U.S. House of Representatives. Earlier, he served on the White House staff. Faulkner provides political commentary for ABC News Australia, Newsmax, and CitizenOversight. He earned a Master’s in Public Administration from American University, and a BA in Government & History from Lawrence University, with studies in comparative government at the London School of Economics and Georgetown University.

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Principle of Duty of the American People to Continually Maintain Checks on Government Power

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Guest Essayist: Scot Faulkner

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

On November 19, 1863, President Abraham Lincoln spoke immortal words about the eternal mission for all Americans: “that government of the people, by the people, for the people, shall not perish from the earth.”

Citizens holding government accountable begins with knowing what their government, at all levels, is doing.

Two long-standing legal concepts provide the framework for citizens being eternally vigilant and government officials being consistently accountable: government documents should be public and government meetings should be public.

During the Virginia Ratifying Convention for the United States Constitution, Patrick Henry asserted public knowledge was the bulwark of protecting freedom, “The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them.”

“Where are your checks in this government?…The most valuable end of government is the liberty of the inhabitants. No possible advantages can compensate for the loss of this privilege.”

Patrick Henry’s linkage of protecting liberty to citizen access echoed James Madison’s commentary in Federalist 49:

“As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory, to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new-model the powers of the government, but also whenever any one of the departments may commit encroachments…it must be allowed to prove that a constitutional road to the decision of the people ought to be marked out and kept open.”

Madison raised concerns about those who aspire to unbridled power.

“The same influence which had gained them an election into the legislature, would gain them a seat in the convention. If this should not be the case with all, it would probably be the case with many, and pretty certainly with those leading characters, on whom every thing depends in such bodies…it is the reason, alone, of the public, that ought to control and regulate the government.”

Public access to view the proceedings of House and Senate began in December 1795.

The rapid growth of the Federal Government during President Franklin Roosevelt’s “New Deal” raised concerns about public access to Executive Branch documents and proceedings. Many of Roosevelt’s new agencies had unprecedented powers to create laws and regulations outside the reach of Congress. On June 11, 1946, the Administrative Procedures Act (APA) was enacted to re-establish balance between the Legislative and Executive Branches. The APA also outlined how the public would be informed and allowed to comment on Executive Branch actions:

  1. to require agencies to keep the public informed of their organization, procedures and rules
  2. to provide for public participation in the rulemaking process, for instance through public comment
  3. to establish uniform standards for the conduct of formal rulemaking and adjudication
  4. to define the scope of judicial review

The APA had its limitations as bureaucrats continually found ways to avoid compliance. A more explicit federal law mandating public access to unclassified government meetings, was the Government in the Sunshine Act which was enacted September 13, 1976. Similar “Sunshine Laws” were enacted among state and local governments. However, to this day, citizens still have to file lawsuits to enforce public access as elected and appointed officials fail to provide “adequate public notice” to hide questionable actions.

The practice of the public accessing of public documents began on December 2, 1766, ten years before the American Revolution. Sweden passed the “Freedom of the Press Act.” Among other things—it gave Swedish citizens access to uncensored government documents. This was the first “freedom of information” law in history.

The world’s first law requiring “publicity for official documents” was initiated by the Finnish-Swedish enlightenment thinker Anders Chydenius, a member of the Swedish Diet (Parliament).

“No evidence should be needed that a certain freedom of writing and printing is one of the strongest bulwarks of a free organization of the state, as, without it, the estates would not have sufficient information for the drafting of good laws, and those dispensing justice would not be monitored, nor would the subjects know the requirements of the law, the limits of the rights of government, and their responsibilities. Education and ethical conduct would be crushed; coarseness in thought, speech, and manners would prevail, and dimness would darken the entire sky of our freedom in a few years.”

Chydenius’ Freedom of Print Act was intended to vitalize political discussions. To achieve this objective, Chydenius asserted it was essential that the citizens had access to official documents in order to see how the state was run. Seven of the ordinance’s fifteen paragraphs were dedicated to detailing this public access.

While the Administrative Procedures Act in America mandated information access, it rarely happened. Formalizing “Freedom of Information Access” for American citizens took longer. The American Society of Newspaper Editors commissioned Harold L. Cross, legal counsel for the New York Herald Tribune, to investigate the issue of excessive government secrecy. Cross’s 1953 report was published as a book titled The People’s Right to Know.

Cross wrote that virtually every part of American government operated under what amounted to an “official cult of secrecy”; that this secrecy had become “a breeding ground for corruption; that it was leading to a rise in public mistrust in government; and that all of these things combined were doing serious damage to American democracy itself.” Cross’s 400-page report made the case that Congress must craft new legislation that gave American citizens greater access to the inner workings of their government. In the early 1950s, The People’s Right to Know became a manual for the blossoming “freedom of information” movement.

In 1955, former businessman John Moss (D-CA) began a 12-year effort to codify Cross’s recommendation by passing the Federal Freedom of Information Act (FOIA).

On June 20, 1966, it passed the House of Representatives (306 to 0). It was then sent on to President Lyndon Johnson.

Johnson opposed the legislation but allowed it to become law on July 4, 1966.

On this 4th of July, we should celebrate this milestone in the public’s power to observe government decisions and maintain checks on government power.

It reminds us that citizens must remain constantly vigilant to protect our God-given rights.

Scot Faulkner is Vice President of the George Washington Institute of Living Ethics at Shepherd University. He was the Chief Administrative Officer of the U.S. House of Representatives. Earlier, he served on the White House staff. Faulkner provides political commentary for ABC News Australia, Newsmax, and CitizenOversight. He earned a Master’s in Public Administration from American University, and a BA in Government & History from Lawrence University, with studies in comparative government at the London School of Economics and Georgetown University.

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Principle of the Separation of Powers, Involving Checks and Balances on Those Powers

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Guest Essayist: Patrick M. Garry

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

The United States Constitution creates a government with three separate branches, each vested with different powers and responsibilities for different functions. This particular structure reflects the doctrine of separated powers. The Framers adopted this doctrine so as to diffuse government power and thereby protect individual liberty from government encroachment. Congress possesses the authority to make laws; the President has the duty of executing those laws; and the courts interpret and apply those laws in cases brought before the judiciary.

By creating three competing branches, the separation of powers scheme uses the power of each independent branch to check and restrain the power of the other branches. In this way, there is a self-executing structure built into the constitutional scheme that restrains any one branch from abusing its power to the detriment of individual liberty.

The Supreme Court has recognized the importance of the separation of powers principle. This principle, according to the Court, “is at the core of American ideology” and is “as fundamental as the vote or representative government.” Separation of powers provides a system of checks and balances, as well as a guard against improvident or impetuous government action. The separation of powers principle seeks to control government power by splitting it among three different functions and branches, with each branch confined to the exercise of its own function and not allowed to encroach on the functions of the other branches.

Separation of powers does more than just accomplish the negative function of preventing abuses of power; it also achieves a number of positive functions. These functions include allowing a wide-ranging political presentation of diverse interests, leading to a broad-based consensus across a diverse republic, as well as promoting the distinctive qualities associated with each branch. Separation of powers helps the government to be deliberative, representative, and accountable. It helps slow down the lawmaking process so that it can be responsive to all the various constituencies in a large democracy. Such a checks-and-balances system makes it more difficult for the government to act unless there is widespread agreement that it should do so.

The separation of powers principle reflects the Framers’ fear of centralized power, which in their experience had led to tyranny. In this respect, the Framers were very much influenced by the earlier writings of French philosopher Baron de Montesquieu, who wrote that “when the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty.” Throughout its deliberations, the Constitutional Convention remained steadfast in the belief that governmental power should be separated and balanced among the three branches of government, as recommended by Montesquieu.

The Framers foresaw that the separation of powers structure, by placing impediments in the path of the political process, would help to restrain the excesses of lawmaking. Although this structural bias in favor of the status quo would naturally defeat a few good laws, it would even more importantly prevent a number of bad ones.

The judicial enforcement of separation of powers was greatly weakened during the New Deal of the 1930s, when the courts acquiesced in the dramatic expansion of the federal executive branch’s powers and activities. To combat the Great Depression, the New Dealers in President Franklin Roosevelt’s administration significantly expanded the administrative state. This expansion contradicted traditional notions of separation of powers, since the newly empowered administrative agencies combined all three functions in their rulemaking and adjudicative activities. Contrary to the beliefs of the founding era, strong executive government was seen not as a threat to liberty but as a savior of society, and the agents of that saving power were the administrative agencies. But to enable those agencies to perform that role, the Court had to sanction the granting of wide, virtually undefined powers. The Court also had to approve the combination of all three functions within each individual agency. Not surprisingly, the rise of the administrative state meant the corresponding decline of the separation of powers principle.

As a result of the erosion of separation of powers during the New Deal period, the administrative state has grown to the point of being called the “fourth branch” of government. However, contrary to the idealistic hopes of the New Dealers, agencies are often rigidly bureaucratic and cravenly political. But out of perceived necessity for meeting the demands of modern society, the courts have accepted, as a constitutional matter, the administrative state. Moreover, it is perhaps not surprising that – the more the administrative state contradicts separation of powers principles – the more abuses of power and infringements on liberty occur.

Patrick M. Garry is professor of law at the University of South Dakota. He is 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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Principle of Free Government and Free Society

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Guest Essayist: Adam Carrington
United States Constitution showing the first page with Article I, with the Bill of Rights and American Flag

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

Abraham Lincoln concluded his famous Gettysburg Address with the hope that “government of the people, by the people, for the people, shall not perish from the earth.”

Why would such a government perishing be so bad? After all, myriad regimes have started, fallen, and now are no more–no better than a footnote in history books. Moreover, a popular government, one so focused on the people, hasn’t been the norm for most of human history.

But we should not merely be looking for the most famous nor the most common governments. We should be looking for the best. Lincoln here does that. For he describes the essential components needed for a free society and a free government.

Lincoln summarizes America’s political principles through three phrases each focused on the people. Each builds off a central assumption about human beings, namely that they are inherently equal. Thus, the origin of political rule, the administration of political rule, and the purpose of political rule all must be grounded in the famous phrase of the Declaration of Independence that “all men are created equal.”

For Lincoln, “Of the people” says that our government originates from the body of citizens. The people pre-existed the government and consciously created that government. This point matters greatly. In political philosophy, much is said about the nature and location of sovereignty–ultimate, unrivaled authority to rule. Lincoln here succinctly says that the people are sovereign, that political power originates with them. The authority of governments, by contrast, is delegated, derivative of the people’s power. Nor was the government the creation of one proto-king or a few elites. The people together were the source.

We here have a basis for freedom.  If the government created the people, then we would exist to serve it. But if the people establish the government, then that government must serve us. Or if one or a few had done so, the rest of us would be subject to him or to them. Our United States Constitution, which begins “We, the People,” makes clear the origin of the government’s power is from us.

“By the people” declares the means through which government exercises its power. The focus remains on the people. For a government by the people means that citizens administer the government they created. They do not merely leave it to others but engage in active self-rule. We do so in three main ways. First, we all can engage in discussion with each other in hopes of learning from and persuading with our neighbors. Second, do so  through voting for those who will directly exercise our power in office. Third, and related, we can self-govern by holding office.

This point also matters for a free society and a free government. The Founders understood that human nature struggled with a temptation to selfishness. Monarchy risked one man ruling for his own good at the expense of the rest. Aristocracy threatened a few elites wielding political power only to help themselves. A popular government sought to direct such self-interest toward the good of the greatest number. At its best, this popular rule by the people would pursue what is called the “common good.” The Founders knew that the people also could be selfish and thus that the majority could harm the minority. But they thought the majority will would mirror the common good more often than the whims of one or a few. And they put in place systems like representation, federalism, and separation of powers to mitigate such selfish tendencies from having free reign even in popular rule.

Finally, “for the people” states for whom the government acts. All governments are “for” someone within their borders. They make laws and enforce them with the good of this group in mind. In acting for the people, Lincoln assumes that popular government should be oriented toward the good of all its citizens. Here we see the underpinnings of the Constitution’s commitment to “promote the general Welfare” as described its Preamble. Just as rule did not originate with one person or a few, nor was it administered by one or a few, so our government would not seek the benefit of one or a few. Our belief that government exists to protect natural or human rights, summarized as life, liberty, and the pursuit of happiness, forms the core of what Lincoln meant by government existing “for the people.” And in protecting those rights, we can rest secure in our freedom, exercising it in pursuit of a happy life.

Thus, we, too, should hope that this kind of government does not perish from the earth. We have been blessed in that government’s establishment by our ancestors and its maintenance by those who came before us. We have not sunk into despotism because we have not lost the grounding of political power and purpose in the people. At the same time, we always face the risk of losing this precious gift. It remains to us to keep our republic, guarding it from all foes external and internal. The task is up to us. We are the people, after all.

Adam M. Carrington is an Associate Professor of Politics at Hillsdale College. There, he teaches on matters of Constitutional law, American political institutions, and separation of powers. His writing has appeared in such popular forums as The Wall Street Journal, The Hill, National  Review, and Washington Examiner. His book on the jurisprudence of Justice Stephen Field was published in 2017 by Lexington. Carrington received his B.A. from Ashland University and his M.A. and Ph.D. from Baylor University. He lives in Hillsdale with his wife and their two daughters.

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Of the People, by the People, and for the People: Founding a Representative Government in America, Not Hereditary Succession

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Guest Essayist: Ron Meier
Æthelstan, considered the first king of England, 895-939 AD. A sixteenth-century painting in Beverley Minster in the East Riding of Yorkshire of Æthelstan with Saint John of Beverley

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

“…for it is impossible to discover superiority of right in any family, by virtue of which hereditary government could begin… It is one step toward liberty, to perceive that hereditary government could not begin as an exclusive right in any family…With respect to the first of these heads, that of a family establishing itself with hereditary powers on its own authority independent of the nation, all men will concur in calling it despotism…It operates to preclude the consent of the succeeding generations, and the preclusion of consent is despotism.” – Thomas Paine, Dissertation on the First Principles of Government 1795.

While the King and Parliament were visible primarily through their Colonial Governors, they had been directly visible to Paine in England before his emigration to the colonies. Paine was familiar with hereditary succession and was opposed to that idea, as he later wrote in the Dissertation quoted above. King George III was the grandson of King George II; George III might have been George IV had not his father died in 1751, nine years before his grandfather died, making George III the heir to the Throne. George III ascended to the Throne at the age of 22.

The impact of the laws of Parliament and the King on the ordinary British citizen had encouraged Paine to publish his pamphlets critical of the “abuses and usurpations” enforced on British citizens there. Thus, while he had minimal direct knowledge of the American colonies’ political affairs, he had significant direct knowledge of the impact of the British political policies in Britain, giving his words in the colonial pamphlets a great deal of significance. The timing of his arrival and his ability to communicate effectively to the colonists while they were in an excellent position to declare independence were the keys to the impact his “Common Sense” pamphlet had on the colonies.

The first two chapters of Common Sense focused on the purpose of government, the English Constitution, the monarchy and hereditary succession, and how those factors made living under British rule difficult for all and intolerable for some. His pitch was emotional at a time of heightened emotions in the American colonies. On the first page, he states that “government even in its best state is but a necessary evil; in its worst state an intolerable one. We furnish the means by which we suffer.”

He states that “the design and end of government is freedom and security.” Paine argued that the British government was filled with both “monarchical and aristocratical tyranny.”

Paine presents scathing attacks on the monarchy with scriptural references very familiar to the colonists. Christian faith and tradition were strong in the colonies and all knew of the chaos of the era of Israelite Kings and how, in just three centuries, that chaos resulted in the destruction of the Temple and the exile. He states that “monarchy is ranked in scripture as one of the sins of the Jews.” He differentiates King David from other Israelite Kings in that David “was a man after God’s own heart.”

He attacks hereditary succession, stating that “all men being originally equals, no one by birth, could have a right to set up his own family, in perpetual preference to all others forever.” He observes that usurpation, rather than selection by lot or by election, has been the most common method of ascension to the throne, and that original sin and hereditary succession are parallels. The then-common idea that hereditary succession preserves a nation from civil wars is quickly debunked. Monarchy and succession are a form of government leading to “blood and ashes.”

In Chapter 2, Paine leaves some hints for the institution of a republic and for the necessity of a “house of commons” in the future nation.

In Chapters 3 and 4, Paine turns toward the present state of affairs in the American colony. Here he builds a strong emotional case for “Independency.” He states that the 1775 British attacks on Lexington, Concord, and Bunker Hill made all attempts at reconciliation void and that “the period for debate is closed; arms must decide the contest.” He first supports the economic and trade arguments for separation. The British attempts to “tax without representation,” to reimburse the costs of British protection of the American colonies, are for the benefit of the colonies’ exclusive trade arrangements with Britain. By declaring independence, the American colonies would then be an open trade port to all nations.

In addition, severing the exclusive alliance with Britain would eliminate the risk that Americans might be enlisted into wars with Spain and France. Paine notes that only about 1/3 of the colonies are inhabited by English descendants, but that people fleeing tyranny from all of Europe have sought a new life in America. He states that “everything that is right or natural pleads for separation.”

Paine focuses on the fact that April 19, 1775 forever destroyed the ability of the colonies to reconcile with Britain. He asks, “can you still shake hands with the murderers?” He quotes Milton, “never can true reconcilement grow where wounds of deadly hate have pierced so deep.”  Repeated petitioning has consistently failed. He observes that “there is something absurd in supposing a continent to be perpetually governed by an island.”

Paine makes a strong argument that laws, made by the people of America, should be King, not laws made by a King and Parliament thousands of miles distant, laws that reflect the King’s premise that “you shall make no laws but what I please!” He presents a plan for government after independence, a plan for representative government that was unlikely to be adopted, but that may have had some influence on the Declaration of Independence and the Articles of Confederation.  Thomas Jefferson may have made note of Paine’s suggestion for “a mode of government that contained the greatest sum of individual happiness” as he wordsmithed the Declaration of Independence.

Paine makes the case for America’s ability to build, supply, and maintain a Navy equal or superior to Britain’s Navy; that was possible due to the abundance of natural resources in the large, largely unexplored nation. America’s abundant natural resources also could be exported to all nations in exchange for gold and silver.

He argues that the current infant state of the colonies is advantageous for independence; it is easier to unite a small nation now than a large one later. An interesting point he makes about equal representation, which ultimately led to two Senators per state, resonates today; specifically, that unequal representation of large and small counties in Pennsylvania could have resulted in Pennsylvania’s laws being decided by only two counties in the state.

While the elected representatives to the Continental Congress were focused on applying reason and diplomacy to resolve the dispute with England, Paine understood the passions of the citizens and used his pen and press to stir their emotions to pressure their representatives to choose independency rather than reconciliation.

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

Sources:

Stamp Act – Fact, Reaction & Legacy (history.com)

Britain Begins Taxing the Colonies: The Sugar & Stamp Acts (U.S. National Park Service) (nps.gov)

What Was the Olive Branch Petition? – History of Massachusetts Blog

Paine, Thomas.  Common Sense.  New York:  Fall River Press, 1995

John Adams looks back on Thomas Paine’s Common Sense, autobiography, early 1800s (americainclass.org)

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Principle of Representative Government Under Direction of the People Rather Than King Rule

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Guest Essayist: Ron Meier

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

“But where says some is the King of America? I’ll tell you Friend, he reigns above, and doth not make havoc of mankind like the Royal Brute of Britain. Yet that we may not appear to be defective even in earthly honors, let a day be solemnly set apart for proclaiming the charter; let it be brought forth placed on the divine law, the word of God; let a crown be placed thereon, by which the world may know, that so far we approve of monarchy, that in America the law is king. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other. But lest any ill use should afterwards arise, let the crown at the conclusion of the ceremony be demolished, and scattered among the people whose right it is.” – Thomas Paine, Common Sense, February 14, 1776.

It would be easy to conclude that the Declaration of Independence had been in development for a decade and simply finalized in the summer of 1776. The 1764 Sugar Act and the 1765 Stamp Act were the first in a long series of “repeated injuries and usurpations” cited in the Declaration of Independence in 1776.

In fact, over the decade, numerous reconciliation appeals were made to the King of England to redress colonists’ grievances; the colonists were British citizens and wanted to remain so. It took a decade for the Continental Congress to be convened. Although the colonial militia had effectively defeated the British armed force in April 1775, the militia suffered defeat on Bunker Hill in June 1775. Therefore, one of the first acts of the Second Continental Congress was to pass the “Olive Branch Petition” in July 1775, an attempt by the colonies to avoid escalation into a full-scale war.

The Olive Branch Petition expressed loyalty to the King to avoid a larger war. The British Army and Navy were formidable and no American Army or Navy existed. To declare war on Britain in 1775 would have seemed an irrational act for a group of independent colonies. The delegates to the Continental Congress knew world history and knew that the odds of military success were slim to none should the British government send its Army and Navy in overwhelming force to defeat America’s militia. Debates for and against independence were vehement over the subsequent months, but the general mood was against declaring independence.

As happens frequently in world history, a single, unexpected spark turns events. Casual observers of recent American history can identify such events in our lifetimes, including 9.11, the fall of the Berlin Wall, the sudden collapse of the Soviet Union, the Russian invasion of Ukraine, among many others. So it was with the American Revolution.

That unexpected spark could not have been predicted. A man, Thomas Paine, arrived in America from England in November, 1774. He knew little about the American colonies and he was unknown among the members of the Continental Congress.

Paine’s personal and business life in England was unremarkable.  However, he engaged in what today would be called political activism; in the 18th century, publishing political pamphlets was the common method used by political activists. His political publishing activities in Britain enabled his introduction to America’s best known publisher then residing in Britain, Benjamin Franklin; Franklin encouraged Paine to strike out for America where his political activism might be put to better use – and where he might escape persecution by the British government.

Franklin’s letter of introduction proved invaluable in getting Paine immediately employed in the publishing business in Pennsylvania. His political activism in England, against a common adversary, the King, enabled Paine to rapidly understand the American issues and turn those issues into political pamphlets in the colonies. The 1775 battles in the Massachusetts colony, however, didn’t seem to move the needle politically; America’s Continental Congress, and most colonists, continued to seek Reconciliation, not Revolution. As Paine’s frustrations grew, he published a new pamphlet, distributed throughout the colonies in January, 1776. That pamphlet was called Common Sense.

Paine was not an intellectual philosopher. His writing style was directed towards the common man, of which he was one. Well over 100,000 copies of Common Sense circulated in the colonies. King George’s declaration that the American colonies were in open rebellion against the Crown arrived in the same month that Common Sense was published.

Paine had not been present during the preceding decade of colonial angst regarding the suppression of British rights in the American colonies.  However, the timing of his arrival in Pennsylvania, his recommendation by Benjamin Franklin, and his history of stirring political emotions in England against the King and Parliament proved beneficial. He arrived after the Boston Tea Party and the King’s enactment of the “Intolerable Acts,” and after the assembly of the First Continental Congress. Only months later, the battles of Lexington, Concord and Bunker Hill would stir the colonists’ passions more strongly against the dictates of a King on the other side of an ocean. “No taxation without representation” reflected the colonists’ views that the time for representative government of the people rather than rule by King had come.

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

Sources:

Stamp Act – Fact, Reaction & Legacy (history.com)

Britain Begins Taxing the Colonies: The Sugar & Stamp Acts (U.S. National Park Service) (nps.gov)

What Was the Olive Branch Petition? – History of Massachusetts Blog

Paine, Thomas.  Common Sense.  New York:  Fall River Press, 1995

John Adams looks back on Thomas Paine’s Common Sense, autobiography, early 1800s (americainclass.org)

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

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Principle of Meritocracy and Its Importance Within the Framework of the U.S. Socio-Economic and Political Systems

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Guest Essayist: Andrew Langer

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

In the grand scheme of social ideals, meritocracy reigns as one of the most impactful principles, fostering a society where individuals rise to prominence and power based on their abilities and achievements, rather than birthright or privilege. The principle of meritocracy underscores the very foundation of a fair society, where hard work, talent, and innovation are rewarded. It is pivotal in maintaining a free and prosperous society, and here’s why.

Firstly, meritocracy promotes equality of opportunity. In a true meritocracy, everyone has the chance to succeed based on their own merit regardless of background. This allows for a leveling of the playing field, granting each person the right to rise according to their abilities and efforts. A society that champions meritocracy encourages individuals to strive for their best, fostering a culture of hard work, resilience, and ambition.

Secondly, meritocracy fuels innovation and economic growth. When individuals are rewarded based on their talent and efforts, they are incentivized to innovate, create, and perform at their best. This, in turn, stimulates economic growth and prosperity. History is rife with examples of societies that flourished when merit was rewarded – from the rapid technological advancements of the Silicon Valley tech giants to the economic miracles witnessed in post-war Japan and Germany.

Thirdly, meritocracy ensures the most competent individuals lead. In a society where leadership roles are based on merit, the most qualified, skilled, and effective leaders rise to the top. This promotes better decision-making, efficiency, and performance in both public and private sectors, leading to overall societal improvement.

While the term “meritocracy” was not in use during the time of the Founding Fathers, their actions and beliefs make it clear that they championed the principles that underpin this concept. Through their personal examples and the institutions they established, they laid the groundwork for a society that values individual ability and achievement. It is this foundation that has allowed the United States to continually strive towards the ideal of a meritocracy, where everyone has an equal opportunity to succeed based on their own merits and abilities.

It is clear, however, that concept of meritocracy was implicit in their writings and actions. Meritocracy resonates deeply with the democratic ideals that the Founding Fathers held. Their approach to this concept, while not explicitly labeled as meritocracy, can be discerned through a careful examination of their actions, writings, and the institutions they established.

The Founding Fathers, including individuals such as George Washington, Thomas Jefferson, and Benjamin Franklin, all demonstrated a belief in the power of individual merit. This belief was deeply rooted in the Enlightenment, a period of intellectual and philosophical development that greatly influenced their thinking.

George Washington, for example, rose to prominence not because of inherited wealth or title, but due to his leadership abilities and military acumen during the Revolutionary War. He was a model of the self-made man, a figure that would become emblematic of the American Dream, and his leadership was a testament to the power of merit.

Thomas Jefferson, the principal author of the Declaration of Independence, held a belief in the natural rights of man. He stated that “all men are created equal,” indicating that everyone should have the same opportunities for success. This belief aligns with the principles of a meritocracy, which values individuals based on their achievements rather than their social status or wealth.

Benjamin Franklin was perhaps the most explicit proponent of meritocratic ideals. He was a vocal advocate for education, believing it to be the key to social mobility and individual improvement. Franklin’s establishment of public institutions like libraries and universities was a practical embodiment of his belief in the power of self-improvement and personal merit.

The Founding Fathers not only championed the concept of meritocracy in their personal lives but also institutionalized it in the formation of the American political system. The U.S. Constitution, which they crafted, has several meritocratic elements.

For instance, there are no hereditary offices in the U.S. government, meaning that one cannot inherit a position of power. This provision was a clear departure from the monarchical systems of Europe where power was often passed down through generations. Instead, public offices in the U.S. are filled through elections, with the aim of choosing the most qualified individuals, a clear nod to meritocratic principles.

The system of checks and balances, another cornerstone of the U.S. Constitution, is also implicitly meritocratic. It requires that individuals in power continually demonstrate their abilities and merits in order to maintain their positions. This system promotes accountability and discourages complacency, further emphasizing the importance of merit over inherited status.

In a society where positions and rewards are distributed according to merit, the concept of meritocracy reigns supreme. It’s a system that believes in the power of hard work, talent, and ambition, asserting that each individual, regardless of their background, has the potential to climb the societal ladder based on their capabilities. But what happens when we abandon this principle? How does it affect our political and economic landscapes?

Politically, abandoning meritocracy may lead to a shift in power dynamics, affecting the governance of a nation. In a meritocratic society, leaders are chosen based on their abilities, credentials, and proven track records. They have demonstrated their competence and capacity to lead, fostering a sense of public trust. If we abandon this principle, we risk ending up with leaders who might not possess the necessary skills or experience. There’s a potential for nepotism and cronyism to take root, as appointments might be influenced by personal relationships rather than professional competence. This could erode public trust and potentially destabilize political systems.

Economically, meritocracy is a key driver of innovation and productivity. When rewards and advancements are tied to performance, it encourages individuals to improve their skills, innovate, and work efficiently. Removing this incentive might lead to a decline in overall productivity. Furthermore, it could also result in an inefficient allocation of resources. If jobs and promotions are not given based on merit, then the most competent individuals may not end up in positions where their skills are best utilized. This inefficiency can slow economic growth and development.

Abandoning meritocracy also brings up concerns about fairness and social mobility. Meritocracy, at least in theory, offers an equal playing field, allowing individuals from any background to succeed if they have the ability and put in the effort. Without it, those from privileged backgrounds may have an unfair advantage, leading to increased social inequality and a decrease in social mobility.

Like so many other aspects of American society, the embedding of the principles of meritocracy within our political and economic systems have yielded enormous benefits.  Abandoning those principles would be foolish, and have terrible consequences in the near and long term.

Andrew Langer is President of the Institute for Liberty, as well as Chairman and Founder of the Institute for Regulatory Analysis and Engagement. IFL is a non-profit advocacy organization focused on advancing free-market and limited government principles into public policy at all levels. IRAE is a non-profit academic and activist organization whose mission is to examine regulations and regulatory proposals, assess their economic and societal impacts, and offer expert commentary in order to create better public policies. Andrew has been involved in free-market and limited-government causes for more than 25 years, has testified before Congress nearly two dozen times, spoken to audiences across the United States, and has taught at the collegiate level.

A globally-recognized expert on the impact of regulation on business, Andrew is regularly called on to offer innovative solutions to the challenges of squaring public policy priorities with the impact and efficacy of those policies, as well as their unintended consequences. Prior to becoming President of IFL and founding IRAE, he was the principal regulatory affairs lobbyist for the National Federation of Independent Business, the nation’s largest small business association. As President of the Institute for Liberty, he became recognized as an 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.

Andrew has had an extensive career in media—having appeared on television programs around the world. From 2017 to 2021, he hosted a highly-rated weekly program on WBAL NewsRadio 1090 in Baltimore (as well as serving as their principal fill-in host from 2011 until 2021), and has filled in for both nationally-syndicated and satellite radio programs. He also created and hosted several different podcasts—currently hosting Andrew and Jerry Save The World, with long-time colleague, Jerry Rogers.

He holds a Master’s Degree in Public Administration from Troy University and his degree from William & Mary is in International Relations.

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Principle of Equality Over Equity

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Guest Essayist: Andrew Langer

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

The principle of equality, a cornerstone of democratic societies, is deeply rooted in the idea of “equal opportunity” – the notion that everyone should have a fair shot at success. This concept is fundamentally distinct from the ideology of “equal outcomes,” which guarantees identical results for everyone, irrespective of effort, talent, or innovation. Equality of outcome is a seductive concept; it promises a world without disparity or struggle. However, this notion undermines the core tenets of free markets, competition, and innovation that have been the driving force behind American society’s economic prosperity and advancement.

The Declaration of Independence’s statement that “all men are created equal” signifies that all individuals are endowed with the same inherent rights and that they are equally worthy of respect and dignity. This phrase is generally interpreted as a call for equal treatment and opportunities, rather than a guarantee of identical results.

This profound statement, however, does not imply that all men will achieve equal outcomes. Rather, it signifies that all men are endowed with the same inherent rights and that they are equally worthy of respect and dignity. It is a call for fair treatment and equal opportunities, not a guarantee of uniform results.

The Constitution of the United States, a document drafted by forward-thinking individuals who appreciated the dangers of tyranny, does not promise equal outcomes. Rather, it guarantees equal rights and opportunities. This foundational text ensures that every citizen has the same fundamental rights, echoing the Declaration, that of life, liberty, and the pursuit of happiness. The Constitution is essentially silent on the matter of ensuring equal outcomes, a silence that underscores the drafters’ understanding of human nature and the importance of individual agency, meritocracy, and free market principles.

Renowned Constitutional scholars also reflect on this difference. They argue that the Constitution’s promise of equality under the law is not a guarantee of equal outcomes. Instead, it is a promise of equal treatment, a commitment to impartiality and fairness. Legal scholar Robert H. Bork, for instance, argued that “In terms of the Constitution, ‘equality’ refers to the equal protection of the laws,” which does not extend to ensuring uniform outcomes in life.

The free market system, an essential aspect of our society, thrives on the principles of competition, innovation, and consumer choice. The market is a dynamic system that rewards efficiency, innovation, and hard work. It is a platform where individuals can compete on a level playing field, leading to the creation of new products, improved services, and economic growth. A guarantee of equal outcomes would stifle this dynamism, extinguishing competition, and discouraging innovation.

In contrast, the concept of equality of outcomes rests on the notion that everyone should have the same level of material wealth and social standing, regardless of their individual efforts or abilities. This idea, seductive in its apparent fairness, is a cornerstone of many communist philosophies. However, in practice, it has often led to disastrous consequences, both economically and culturally.

Consider the Soviet Union, a nation that wholeheartedly embraced the principle of equality of outcomes. Despite initial hopes for prosperity and fairness, the Soviet economy was characterized by stagnation, inefficiency, and widespread poverty. The central planning that drove the Soviet economy disregarded the intricate web of individual desires, talents, and efforts that naturally guide economic activity. This resulted in a mismatch of supply and demand, with shortages of basic goods and services becoming the norm.

When the rewards of hard work and innovation are stripped away, the incentive to strive for excellence diminishes. A system that does not reward individual effort or skill discourages initiative and creativity. The Soviet Union suffered from this stifling of innovation, with its technology and industries lagging behind those of its Western counterparts.

The cultural implications of equality of outcomes are no less severe. When outcomes are predetermined, competition becomes a threat rather than a source of motivation. This breeds resentment and hostility, turning people against each other in a society that should foster cooperation and mutual respect. In the Soviet Union, the state’s intrusive control over every aspect of life led to widespread distrust and fear, further fracturing social unity.

Moreover, the pursuit of equality of outcomes often necessitates a powerful central authority to enforce redistribution. This can lead to the concentration of power in the hands of a few, ironically fostering a new form of inequality. In the Soviet Union, this led to an authoritarian regime marked by brutal repression and a disregard for individual liberties.

As former Congressman and Director of the Office of Management and Budget David Stockman noted in his book, “The Triumph of Politics”:

“[Those who believe in equality of opportunity] start with history and society as they are, and places the burden of proof on those who would use the policy instruments of the state to bring about artificial change. [Those who believe in equality of outcomes] start with an abstraction—a vision of the good and just society—and places the burden of defense on the bloody process. Implicit in the [former] is a profound regard for the complexity and fragility of the social and economic order, and a consequent fear that policy interventions may do more harm and injustice than good. By contrast, the activist impulses of the [latter] derive from the view that a free society is the natural incubator of ills and injustices.”

The pursuit of equality of outcomes in the Soviet Union and other similar regimes resulted in economic inefficiency, social division, and the undermining of individual liberty. These historical examples serve as a stark reminder of the potential dangers of such an approach.

Critics argue that the pursuit of equality of opportunity can still lead to significant disparities in outcome. This is undoubtedly true. However, it is essential to remember that the goal is not to eliminate disparity but to ensure that these disparities are not the result of arbitrary discrimination or unfair practices. Moreover, a certain level of inequality can serve as a motivating factor, encouraging individuals to strive for betterment, to innovate, and to contribute to society’s progress.

The principle of equality of opportunity, rather than equality of outcomes, promotes a healthier society. It encourages personal growth and accountability, rewards hard work and innovation, and respects individual liberty. This principle aligns with the Constitution’s guiding tenets and the Declaration of Independence’s profound assertion that “all men are created equal.”

In conclusion, a focus on equal outcomes can lead to unintended consequences, including stifled innovation, suppressed competition, and a disregard for individual liberty and choice. Conversely, a commitment to equal opportunity fosters a dynamic society where individuals are free to chart their own paths, innovate, and contribute to societal progress. The Constitution and our nation’s founding documents endorse this principle of equal opportunity, a principle that has been instrumental in shaping the American ethos of liberty, hard work, and individualism. This is the path we must continue to tread.

Andrew Langer is President of the Institute for Liberty, as well as Chairman and Founder of the Institute for Regulatory Analysis and Engagement. IFL is a non-profit advocacy organization focused on advancing free-market and limited government principles into public policy at all levels. IRAE is a non-profit academic and activist organization whose mission is to examine regulations and regulatory proposals, assess their economic and societal impacts, and offer expert commentary in order to create better public policies. Andrew has been involved in free-market and limited-government causes for more than 25 years, has testified before Congress nearly two dozen times, spoken to audiences across the United States, and has taught at the collegiate level.

A globally-recognized expert on the impact of regulation on business, Andrew is regularly called on to offer innovative solutions to the challenges of squaring public policy priorities with the impact and efficacy of those policies, as well as their unintended consequences. Prior to becoming President of IFL and founding IRAE, he was the principal regulatory affairs lobbyist for the National Federation of Independent Business, the nation’s largest small business association. As President of the Institute for Liberty, he became recognized as an 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.

Andrew has had an extensive career in media—having appeared on television programs around the world. From 2017 to 2021, he hosted a highly-rated weekly program on WBAL NewsRadio 1090 in Baltimore (as well as serving as their principal fill-in host from 2011 until 2021), and has filled in for both nationally-syndicated and satellite radio programs. He also created and hosted several different podcasts—currently hosting Andrew and Jerry Save The World, with long-time colleague, Jerry Rogers.

He holds a Master’s Degree in Public Administration from Troy University and his degree from William & Mary is in International Relations.

Click here for First Principles of the American Founding 90-Day Study Schedule.
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Principle of Limited Government: Why the United States Constitution Is Designed To Prevent Centralized Power

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Guest Essayist: Patrick Garry
Signing of the Constitution - Independence Hall in Philadelphia on September 17, 1787, painting by Howard Chandler Christy, on display in the east grand stairway, House wing, United States Capitol.

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

The principle of limited government greatly inspired the drafting of the United States Constitution. Indeed, the framers’ desire to restrain the new federal government was one of the primary design features of the Constitution. Not only was the U.S. Constitution the first written constitution to govern a democratic republic, but it was also the first constitution to be structured according to the goal of limiting the new government it was creating. Consequently, the notion of limited government was a uniquely American contribution to the science of political governance.

The failure of the Articles of Confederation—the first form of national government adopted following the War of Independence—gave rise to calls for a constitutional convention to draft a new design for a federal government. A main reason the Articles failed so quickly was that the national government it created was too weak—a weakness that reflected the deep-seated mistrust of central governments harbored by Americans in the wake of their experience with a British government that had used its power to deprive the American colonists of their liberty.

Although the first goal of the constitutional framers was the creation of a republican form of government which included a stronger national government than had existed under the Articles, the immediately subsequent goal was to build into the new constitution various structural limitations, preventing the federal government from overstepping its proper role. This belief in limited government stemmed from the framers’ opposition to the patterns of statism, absolutism, and totalitarianism existing in the eighteenth-century world. Consequently, within the Constitution, the framers designed an array of checks on federal power. These checks included, for instance, a separation of powers creating three separate branches of government, each of which could help check and restrain abuses committed by the other branches, as well as a federal government possessing only enumerated powers.

Even though the U.S. Constitution establishes a strong and independent federal government, it does so through a scheme of enumerated powers.  The federal government only possesses those powers specifically granted it by the Constitution. Unlike the state governments, which possess plenary power to begin with and which the state constitutions must then limit or restrain, the national government under the U.S. Constitution possesses only those powers specifically granted to it. If the Constitution does not grant a power, then the federal government does not possess that power.

The framers held a cautious and skeptical view toward concentrations of government power. The framers worried more about empowering a federal government that could use its power to deprive people of their liberty than about not giving that government enough powers to swiftly address any political or economic crisis that might arise. They were more concerned about a government doing something wrong than about a government with enough power to be able to always do what was right. Therefore, the scheme of limited government built into the Constitution served as a means of safeguarding liberty, since a government limited in power would be less able to exercise power in abusive or oppressive ways.

To the framers, the principle of limited government was an even greater protection for liberty than were the freedoms outlined in the Bill of Rights. This was because a limited government would be a general protection for all types of liberty, whereas the Bill of Rights protected only a few specified liberties. While individual rights protect against particular acts of government abuse, structural provisions like limited government protect against systemic and continuing government abuses resulting from a lack of effective limits on that power. Indeed, an impetus for passage of the Bill of Rights was the belief that the original Constitution did not do enough to limit the power of the new federal government.

For the first century and a half of the nation’s existence, limited government was widely supported as a constitutional principle. But in the 1930s, as President Franklin Roosevelt’s New Deal agenda greatly expanded the scope and authority of the federal government to fight the consequences of the Great Depression, a belief in limited government waned significantly, especially among liberal activists who wanted the federal government to assume a much larger role in shaping society.   Although the Supreme Court initially opposed this contradiction to the limited government principle, it eventually caved to political pressure and nearly abandoned this principle. As a result, the federal government has grown substantially since the 1930s. With its vast array of administrative agencies, the present federal government hardly seems reflective of the limited government principle originally embodied within the Constitution.

Over the past century, political pressures have pushed the expansion of the federal government, to a size and scope far beyond what the framers foresaw. This pressure can be seen whenever some crisis arises that appears as if it can only be solved by a national government unrestrained in the amount of debt it can accumulate. But as the framers foresaw, and as is so often witnessed today, a larger and more powerful federal government is also more prone to abuses and deprivations of liberty.

Patrick M. Garry is professor of law at the University of South Dakota. He is 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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Principle of Decentralized Government: Keeping Power on the Local Level With Each Individual American and the States

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Guest Essayist: Joerg Knipprath
State flags on each state within its border inside of a map of the United States

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

“Sir, I contemplate the abolition of the state constitutions as an event fatal to the liberties of America. These liberties will not be violently wrested from the people; they will be undermined and gradually consumed. On subjects of the kind we cannot be too critical…Will it not give occasion for an innumerable swarm of officers, to infest our country and consume our substance? People will be subject to impositions which they cannot support, and of which their complaints can never reach the government.” – Melancton Smith, Delegate, First Provincial Congress in New York; June 27, 1788 Notes during days beginning the New York Ratifying Convention.

Melancton Smith is not a household name when considering the adoption of the United States Constitution. But he was well known to the members of the crucial 1788 New York ratifying convention. Through his writings, his ideas became well known beyond his state, even if his name did not. In the convention, Smith was aligned with Governor George Clinton, Aaron Burr, and the upstate Albany faction against John Jay, Alexander Hamilton, and the downstate New York City faction. Clinton was a wily politician and powerful political figure in the state and, later, in the country. He was also a prominent and effective antifederalist leader, who traditionally has been thought to be the writer of a series of antifederalist essays appearing under the pseudonym Cato.

Smith, too, was a prolific critic of the proposed Constitution. Indeed, he was such an effective advocate in the state ratifying convention for the opponents of the Constitution that Alexander Hamilton and other federalists felt obliged to respond to his challenges and criticisms. Smith had been a lawyer and was a merchant, so his style was logical, and his substantive critique was moderate and pragmatic. He appears to have been the author of a series of antifederalist essays previously attributed to the Virginian Richard Henry Lee and published anonymously under the name “Letters from a Federal Farmer to the Republican.”

Like the essays by Cato (George Clinton) and Brutus (attributed to Judge Robert Yates), those of the Federal Farmer posed a real threat to the adoption of the Constitution. Alexander Hamilton replied to them directly by name in Nos. 67 and 68 of The Federalist, the only antifederalist authors whom he named expressly. But there was a difference. With some justification, Hamilton considered the Cato essays to be works of political expedience, and Governor Clinton to be swayed by personal concerns about looming restrictions on the powers of state governments, should the Constitution be adopted. He castigated Cato as presenting deliberate falsifications of the constitutional structure of the executive branch. Falling into passages of purple prose at times, Hamilton singled out Cato as an example, “This bold experiment upon the discernment of his countrymen, has been hazarded by the writer who (whatever may be his real merit) has had no inconsiderable share of the applauses of his party; and who, upon this false and unfounded suggestion, has built a series of observations equally false and unfounded.”

By contrast, the Federal Farmer received, reluctantly, some faint praise. Hamilton noted that the method of selecting the president had received little criticism. Referring specifically to Federal Farmer, he wrote, “The most plausible of these, who has appeared in print, has even deigned to admit, that the election of the president is pretty well guarded.”

Smith eventually broke rank with the antifederalist opposition and voted in favor of the Constitution for practical reasons. By the time the convention voted, the requisite nine states had already approved it, so the Articles of Confederation had been supplanted. Then, the Virginia convention, where the result had been uncertain, voted narrowly to approve the Constitution. Virginia was the largest and wealthiest state. With Virginia out, there was reason to believe that the Constitution ultimately was not viable as a plan of union. With Virginia committed to the new charter, New York’s hand was forced, Smith believed. His defection helped the Constitution’s supporters gain a crucial 30-27 favorable vote, although the price was a letter that listed 25 proposed provisions in a bill of rights and 31 amendments to the Constitution, to be addressed through a second “general convention,” which never materialized.

Particularly because he was such a voice of moderation, Smith’s concerns about the threat of a far-away general government to the liberty of the people struck a chord. Moreover, his warnings were closely tied to the historical perceptions of Americans regarding Great Britain, including the charge that the people’s complaints would fall on deaf ears with a distant government, that such a government would tax and control them in ways that the people could not support, and, recalling sentiments from the Declaration of Independence, that such government would send in “an innumerable swarm of officers, to infest our country and consume our substance.”

Finally, his criticism simply “made sense.” Government close by is more likely to respond to local needs and to mirror local values than government in a remote location. It was a self-evident truth to classic republican writers that republics were homogeneous, with many shared traits and values among the people, and small in area and population. Although republics could be larger than pure democracies and exercise self-government through the principle of representation, the sacrifice that civic virtue often demanded under either system was rooted in notions of friendship and cultural affinity. Social science research has shown that the larger and more diverse the population of a polity is, the less civic engagement occurs. The result is that a ruling elite becomes distant from the general population, and self-government becomes a cherished fiction, a Platonic “noble lie,” more theoretical than real. Such homogeneity and small size have potential downsides of provincialism and inflexibility, of a “small-town” staidness, but there is a limit to the size of what truly could be characterized as a community.

Antifederalist writers made much of this connection among size, cultural affinities, civic virtue, and republican government. They repeatedly invoked the danger of “consolidation” under the new Constitution, that is, the fusion of the states into a single large unitary government, an empire, destined to become tyrannical. As Melancton Smith warned, that process of effective abolition of the state constitutional systems would not be a sudden event. Rather, it would be gradual but irresistible and inevitable, as the general government grew and expanded its powers ever more intrusively into traditionally local matters. “These liberties will not be violently wrested from the people; they will be undermined and gradually consumed.”

The potency of this republican challenge to the Constitution created an urgency for the charter’s supporters to respond vigorously. They used several arguments. Federalist writers commonly pointed to the limited powers which the Constitution vested in the general government in contrast to what they described as the vast reserved powers of the states. For example, James Madison used this tactic in The Federalist, No. 45:

“The powers delegated to the federal government, are few and defined. Those which are to remain in the state governments, are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers of 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.”

Another approach was to emphasize the effect of the natural rivalries of politicians fostered by the horizontal separation of powers in the structure of federalism. In the classic essay No. 51 of The Federalist, James Madison presented as a key feature of the Constitution the simultaneous separation and blending of powers in a system that guarded against oppressive government not by a myopic focus on civic virtue but on structures that enabled “Ambition…to counteract ambition.” “In a single republic [such as the several states], all the power surrendered by the people, is submitted to the administration of a single government; and the usurpations are guarded against, by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people, is first divided between two distinct governments [state and national], and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other; at the same time that each will be controlled by itself.”

Still another was to go on the offensive and to point out that even most American states at the time barely qualified as classic republics in view of their large territorial spread and population, and to note concurrently that the state constitutions lacked various protections so dear to antifederalist writers. As to size of republics, antifederalists cited Montesquieu, but Hamilton rejoined in No. 9 of The Federalist that “the standards he had in view were of dimensions, far short of the limits of every one of these states. Neither Virginia, Massachusetts, Pennsylvania, New York, North Carolina, nor Georgia, can by any means be compared with the models from which he reasoned and to which the terms of his description apply.”

As to protections of liberty, Hamilton objected in The Federalist No. 84,

“The most considerable of the remaining objections is, that the plan of the convention contains no bill of rights. Among other answers given to this, it has been on different occasions remarked, that the constitutions of several of the states are in a similar predicament. I add, that New York is of the number. And yet the persons who in this state oppose the new system, while they profess an unlimited admiration for our particular constitution, are among the most intemperate partizans of a bill of rights.”

In similar vein, Madison asserted that the danger of factions, the bête noire of republican belief, was much greater in the states than in the union. Waxing metaphorical, he insisted in No. 10 of The Federalist,

“The influence of factious leaders may kindle a flame within their particular states, but will be unable to spread a general conflagration through the other states: a religious sect may degenerate into a political faction in a part of the confederacy; but the variety of sects dispersed over the entire face of it, must secure the national councils against any danger from that source: a rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the union, than a particular member of it; in the same proportion as such a malady is likely to taint a particular county or district, than an entire state. In the extent and proper structure of the union, therefore, we behold a republican remedy for the disease most incident to republican government.”

Finally, the Federalists pointed out the psychological tendency of voters to connect with local politicians. Hamilton described this in No. 17 of The Federalist:

“It is a known fact in human nature, that its affections are commonly weak in proportion to the distance or diffusiveness of the object. Upon the same principle that a man is more attached to his family than his neighbourhood, to his neighbourhood than to the community at large, the people of each state would be apt to feel a stronger bias towards their local governments, than towards the government of the union, ….”

Madison echoed that analysis in No. 46 of The Federalist and challenged Smith’s assertion that the new government would infest the country with swarms of bureaucrats:

“Many considerations, besides those suggested on a former occasion, seem to place it beyond doubt, that the first and most natural attachment of the people, will be to the governments of their respective states. Into the administration of these, a greater number of individuals will expect to rise. From the gift of these, a greater number of offices and emoluments will flow…. With the affairs of these, the people will be more familiarly and minutely conversant; and with the members of these, will a greater proportion of the people have the ties of personal acquaintance and friendship, and of family and party attachments.”

It is notable that the defenders of the Constitution at the time agreed that a distant government had systemic tendencies towards unresponsiveness and autocracy. They sought to blunt that criticism by defending their new “confederated republic.” As noted above, a significant part of that defense was that the general government’s powers were few and directed at truly “national” concerns which would arise in only unusual and occasional situations, whereas the states would deal with the everyday matters most directly and closely affecting the people. In hindsight, a fair observation is that many of the alarms the Antifederalists raised about an intrusive and overweening central government have materialized. The Federalists’ responses often appear quaint and unrealistic, perhaps even utopian, in light of events. Their own perceptions of human nature must have alerted them to the weaknesses of their positions and the veracity of the objections of calm and pragmatic critics such as Smith.

That said, Madison, Hamilton, and the other Federalists were not disinterested commentators. They were intent on completing their project of adopting the Constitution. As well, just because the Antifederalists appear prescient in their criticisms of the national government does not mean that their confidence in the republican attributes of state governments would have resulted in less control and regimentation of people’s lives. States and localities in fact do still control the main of people’s lives, just as the Federalists argued. Can it really be said that many state governments have not also “undermined and gradually consumed” the liberties of the people, that those governments have not created “an innumerable swarm of officers, to infest our country and consume our substance,” and that the people have not become “subject to impositions which they cannot support, and of which their complaints can never reach the government”?

We live in a country nearly one hundred times the population and four times the area of the United States when the Constitution was adopted. The principle of subsidiarity espoused by Melancton Smith in a republican constitution has the virtues of more direct popular participation and influence, more efficient implementation of political decisions, better reflection across broader domain of the diversity of local values and needs, and, hence, more immediate claims to political legitimacy. The many commentators on effective self-government who have warned over the centuries about the practical limits of republics in terms of area, population size, and cultural heterogeneity were keen observers of political systems. A devolution of more power away from the national government to the states and from the states to the localities well might be consistent with better republican government. Yet, with many current cities and metropolitan areas each exceeding the entire population of the United States in 1787, there will be further questions about how realistic it is today to expect republican government in anything but name even at the local level. Benjamin Franklin’s challenge remains, when he said about the nature of the government under the Constitution, “A republic, if you can keep it.”

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

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Principle of Law and Order Based on Immutable Laws of Nature and of Nature’s God, Not Arbitrary Will or Mob Rule

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Guest Essayist: Joerg Knipprath
King John signing Magna Carta, 1215. Depicted is a signature, though typically an official seal would be affixed. Illustration by James William Edmund Doyle, 1864.

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

“I am an Enemy to Vice, and a Friend to Vertue. I am one of an extensive Charity, and a great Forgiver of private Injuries: A hearty Lover of the Clergy and all good Men, and a mortal Enemy to arbitrary Government and unlimited Power. I am naturally very jealous for the Rights and Liberties of my Country; and the least appearance of an Incroachment on those invaluable Priviledges, is apt to make my Blood boil exceedingly.” Silence Dogood, a pseudonym used by Benjamin Franklin in an opinion editorial, No. 2, published April 16, 1722 in the New-England Courant.

In the 1215 version of Magna Carta, King John acknowledged, “We have granted moreover to all free men of our kingdom…all the liberties below…” “Free men” were the knights, barons, and small class of free tenants of land, not the large majority of the population who were villeins or other serfs. There follows a long list of such “concessions,” some profound, others whose inclusion must have been due to some alarming event, or some quirk of history or contemporary custom or feudal practice. Whatever the reason, even fundamental matters, such as that no tax shall be imposed except by the common council of the kingdom, or that criminal convictions —at least for nobles and free men—must be through trial before a jury of peers, were cast as matters of the king’s grace. Perhaps that formulation was due to the fact that the barons were holding King John hostage until he agreed to their terms, and those barons wished to make the matter look like a voluntary arrangement. But what the king grants, the king can take away, which John promptly did by repudiating the charter once he was released.

By the time of the American drive for independence, the original Magna Carta had little legal effect in England, with only a few provisions remaining in force after the subsequent issuance of differing versions and the enactment of various English statutes that overrode most of those provisions. However, Magna Carta retained a mythical hold on Americans, who argued that they were not rebelling against their constitutional government but preserving their ancient rights as Englishmen against usurpations by the king and Parliament. Americans believed the Whig perspective that Magna Carta protected the right of common Englishmen against arbitrary royal government and placed the king under the ancient common law. The jurist Sir Edward Coke had been the most influential originator of this idealized interpretation during his political clashes with the Stuart kings early in the 17th century. Not everyone agreed, most certainly not James I and Charles I. A bill introduced in Parliament in 1621 to confirm Magna Carta as law failed.

Appealing as Magna Carta was symbolically as a written constitution that represented a contract between king and people, when Americans actually read it, they could not avoid the fact that the language of the charter assumed that the rights involved originally belonged to the king. Moreover, the king had granted the enumerated rights only to a select few. This stood in clear contrast to the dominant theory at the time of the American revolution that every person is endowed by God with certain rights. Those were inherent in such persons by the grace of God, not by that of the king.

The theory of universal natural rights inherent in each person was a distinct derivative of the much older theory of human law and relations controlled by universal higher moral laws or by principles of natural justice. It was distinct because it focused on the sovereignty of each person, independent of all others and connected to the exercise of the person’s own rational self-interest. It placed the individual at the center of social community and required, at least as a general theory, the consent of each to form a political commonwealth. Duties undertaken to others arose out of the free exercise of one’s right to consent to do so.

The more traditional approach of writers on natural law and natural justice had assumed the operation of a universal order external and antecedent to human society. It functioned concretely, as manifested in the physical universe and human society, and morally, through human reason. Each person was a part of both aspects of that order. Moral and, ultimately, legal duties to others could arise only in humans as creatures who have the capacity to participate in the moral structure of that order. From these natural duties arose rights to make it possible to meet those obligations. In Nicomachean Ethics, Aristotle distinguished between natural and conventional justice: “Political Justice is of two kinds, one natural, the other conventional. A rule of justice is natural that has the same validity everywhere, and does not depend on our accepting it or not.”

In a similar manner, the Roman philosopher and political leader Cicero, expressing a Stoic interpretation, repeatedly explored the connection among law, justice, nature, God, and reason. Just a few select passages from his book Laws suffice as examples. “Law is the highest reason, implanted in Nature, which commands what ought to be done and forbids the opposite…. But in determining what Justice is, let us begin with that Supreme Law which had its origin ages before any written law existed or any State had been established.” Once it was established that there was a superintending structure of natural law commensurate in its essence with reason, Cicero explained how human beings can participate in that order, and can understand the duties created thereunder and exercise the correlative rights. “[T]hat animal which we call man, endowed with foresight and quick intelligence, complex, keen, possessing memory, full of reason and prudence, has been given a certain distinguished status by the supreme God who created him; for he is the only one among so many different kinds and varieties of living beings who has a share in reason and thought, while all the rest are deprived of it.” Such a momentous project is the work of an all-powerful and all-knowing superhuman mind. “[Natural] Law is not product of human thought, nor is it any enactment of peoples, but something eternal which rules the whole universe by its wisdom in command and prohibition. Thus they have been accustomed to say that Law is the primal and ultimate mind of God, whose reason directs all things ….” Finally, a human enactment, no matter the political system which created it, cannot truly be law if it conflicts with the higher natural law. “[N]either in a nation can a statute of any sort be called a law, even though the nation, in spite of its being a ruinous regulation, has accepted it. Therefore Law is the distinction between things just and unjust, made in agreement with that primal and most ancient of all things, Nature; and in conformity to Nature’s standard are framed those human laws which inflict punishment upon the wicked but defend and protect the good.”

Cicero has not been alone in distinguishing between a statute which is not truly law and one which is because of its conformance to justice represented by higher law. The distinction was clearly expressed by, among others, justices of the early Supreme Court. For example, in a colloquy between himself and Justice James Iredell, Justice Samuel Chase declared in 1798 in Calder v. Bull, “An ACT of the legislature (for I cannot call it a law) contrary to the great first principles of the social compact cannot be considered a rightful exercise of legislative authority.” The “first principles” to which Chase referred are those of natural law and natural rights, as shown by Iredell’s skeptical response: “It is true that some speculative jurists have held that a legislative act against natural justice must in itself be void, but I cannot think that under such a government any court of justice would possess a power to declare it so…. The ideas of natural justice are regulated by no fixed standard; the ablest and the purest men have differed upon the subject, and all that the court could properly say in such an event would be that the legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice.”

St. Paul acknowledged the universality of natural law and its connection to the God of all mankind. In his letter to the Romans, Paul explained that “When Gentiles who do not possess the law do instinctively what the law requires,” it proves that God’s universal law exists outside any particular received commands. Those Gentiles “show that what the law requires is written on their hearts, to which their own conscience also bears witness; and their conflicting thoughts will accuse or perhaps excuse them” on the day of judgment. In that manner, enlightened pagans such as Plato, Aristotle, and Cicero might have keen insight into the moral order created by God, and they would be judged the same as those who had received the declared law. They were accountable for their thoughts, words, and deeds under the natural moral law, although their ignorance of specific aspects of the declared law might not be held against them.

Then why was it necessary to have revealed law at all? Philosophers and theologians have long made clear that not all people possess equal capacity to understand what God has written on their hearts, but also that the reason of all humans is imperfect due to the human condition. Humans lack the omniscience of God and His perfect reason to comprehend the full extent of the natural law. Revelation is necessary both for those matters whose substance is beyond human understanding and, at least for some people, “about those religious and moral truths which of themselves are not beyond the grasp of human reason,” in the words of Thomas Aquinas.

Alexander Hamilton in essay No. 33 and James Madison in essay No. 44 of The Federalist made similar arguments about a rather different matter. In Article I, Section 8, the United States Constitution expressly grants Congress the power to legislate regarding certain substantive matters. The question presented was why the Constitution also gave Congress the power to make all laws “necessary and proper” to carry into effect its other powers, when Congress already had the implied power to make such laws as a means for effectuating the ends specified in the Constitution. As Madison pointed out,

“Had the constitution [sic] been silent on this head, there can be no doubt that all the particular powers requisite as means of executing the general powers, would have resulted to the government, by unavoidable implication. No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it, is included.”

Hamilton concluded that “it could only have been done for greater caution, and to guard against all caviling refinements in those who might hereafter feel a disposition to curtail and evade the legitimate authorities of the union.” In other words, the implied power to make such laws already existed under universally accepted and applicable principles of government. But the extent of implied powers is ill-defined and subject to considerable debate and uncertainty. The express enumeration, then, provides a more concrete statement less subject to manipulation and deception.

If the immutable laws of nature represent the work of the divine reason, good human laws are the result of human reason applied to concrete conditions and problems. But human laws are sometimes the product of passion, often temporary, rather than of reason, in denigration of the classic definition. Hamilton addressed this problem in essay No. 78 of The Federalist, where he characterized judicial review of legislation as itself an act of reason to control the ill effects of popular passions:

“This independence of the judges is equally requisite to guard the constitution and the rights of individuals from the effects of those ill humours which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information and more deliberate reflection, have a tendency, in the mean time, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.”

As Cicero taught earlier, the fact that these laws, enacted as the result of temporary public passions, may have been approved by the nation does not lessen their incompatibility with the Constitution and with reason.

Mob rule would be another, perhaps even more blatant, triumph of passion over reason than the arbitrary human law hastily produced by the legislature. That body had more of an opportunity to calm those passions or might at least blunt their force in the eventual statute. However, there is another side to be considered. What is mob rule? Does the uncoordinated broad refusal of the people to go along with an arbitrary statute qualify as such, in what has been dubbed “Irish democracy”? Is direct peaceful opposition by large numbers in the form of demonstrations and petitions? Is rioting and violent opposition? Is insurrection by destroying government property, tarring and feathering government officials, and shooting at soldiers? Or is even the last a legitimate form of opposition to allegedly arbitrary government, at least if those opponents eventually win and write the history books? After all, to the British in the 1760s and 1770s, Americans often engaged in mob rule by a violent minority faction, which then escalated to insurrection and, eventually, full rebellion in a civil war.

The Constitution is positive law, proposed by humans in Philadelphia and approved by assemblies of humans in the several states. The charter incorporates what the Supreme Court has accepted as universal principles of natural law, such as prohibitions of ex post facto laws or of  laws which interfere retroactively with the obligations and rights in contracts, take property without compensation or as mere redistribution for a private person’s benefit, deny basic protections of due process, burden one’s right of self-defense, or interfere with fundamental rights of conscience by abridging rights of free speech, assembly, press, and religion. If Thomas Paine is correct, and there is a natural right of self-government, the Constitution even protects that right, at least within broad bounds.

Still, even the Constitution is not at one with the immutable, constant laws of nature. What the human lawgiver gives, it can take away, just as King John did with Magna Carta. The Constitution can be amended, and nothing in its text prevents the nullification of the rights mentioned earlier. Nor is the discovery by the Supreme Court of unenumerated rights through flexible and creative interpretation of “liberty” under the due process clauses of the Constitution inherently immutable. Such discoveries can be reversed or neutralized by the Supreme Court itself, as happened recently with the retraction of the right of a woman to obtain an abortion, first discovered rather belatedly in 1973. Or a formal amendment can be adopted which overrides an earlier Supreme Court opinion, as has happened several times.

Nor does the Constitution address all principles of natural law and natural rights. It was not until adoption of the 13th Amendment in 1865 that the Constitution took a clear position against slavery, although Western philosophers of ethics and politics and theologists had wrestled with that issue for millennia and had found slavery to be contrary to nature and natural law at least under many circumstances. Worse, the Constitution itself may conflict with natural law and natural rights. After all, a mere five years earlier, on the eve of the Civil War, President Abraham Lincoln and other Northern politicians had advocated for another, far different 13th Amendment, one that would have expressly protected at the level of constitutional law that very same institution of slavery in the states where it then existed. Only the refusal of Southern radicals to accept the geographical limitation in that proposal and the force of the process already set in motion in the Southern states towards secession prevented its further consideration by Congress.

Another difficulty lies in this. To the extent that the Constitution’s text falls short of manifesting the immutable, constant laws of nature and the extent of natural rights, may the Supreme Court fill in those gaps? The Ninth Amendment does no more than state the obvious, that the enumeration of certain rights in the Constitution does not exhaust the scope of rights each person has. It provides no express license for the Supreme Court to substitute its judgment for that of the people or the people’s representatives. Moreover, as Justice Iredell objected in Calder, the commands of the natural law and natural justice are difficult to discern, especially in application to specific and varied circumstances, and have long been the object of philosophic speculation.

Of course, the people or their representatives should make law only in accordance with natural law. But the problem is precisely that they often are driven by self-interest and passion, not by the requisite reason. Nor are the people generally, or the legislators, inherently qualified as moral philosophers any more than the judges. This quandary requires inquiry into the role of private and public virtue in the promotion of proper self-government and the establishment of a political order and human law consistent with the natural law and the protection of each person’s natural rights.

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

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Principle of Decision Making by the Majority Within a Constitutional Framework

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Guest Essayist: Eric C. Sands
The United States Constitution and Declaration of Independence on an American Flag background

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

In a republic, it is common to refer to government action needing to be supported by the consent of the people. But what do we mean by the “people?” Certainly, this cannot mean the consent of every person in a political community since no such universal consent would ever be possible. Instead, a republican form of government relies on the consent of the majority in undertaking action and carrying out public policy.  This does not mean that the will of the majority is always right or just or that the majority cannot be tyrannical in how it exercises its will. There is no question that majorities can be as despotic as kings if given the ability to rule unchecked. The majority will, however, properly organized, limited, and directed within a constitutional framework will generally prove the most legitimate basis for good government.

No one makes this argument more effectively than James Madison, the architect of the large republic that can operate over a broad territory with a big population. This model, presented in Federalist 10, became the basis for the American idea of republicanism. In doing so, Madison argued that majority rule was not perfect, but it was better than any of the available alternatives. Majority rule is what allowed republican government to exist and what further allowed rule by the people. In short, the principle of majority rule is the basis of popular sovereignty and is tempered and moderated through the institutions of constitutional government. To be sure, not everyone agreed with Madison’s defense of majority rule. Some, like Thomas Jefferson, complained that rule by the majority left the rights of the minority insecure and presented the minority with few options in protecting their rights and liberties. A perfect example of this was the Alien and Sedition Acts passed in 1798, which restricted immigration and speech in the United States.

Jefferson was called on to help prepare a protest against the acts, which he did in the famous Kentucky Resolutions. In the Resolutions, Jefferson argued for a narrow reading of the Constitution and embraced a states’ rights interpretation of the constitutional system. His major concern, though, was how the minority could protect itself from the majority within the constitutional system. His solution was to embrace the doctrine of state nullification. As Jefferson explained, “where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy; that every State has a natural right in cases not within the compact, to nullify of their own authority all assumptions of power by others within their limits.” Clearly, this was quite a radical doctrine and had important implications for the young republic. A number of prominent statesmen spoke out against Jefferson’s idea and predicted that nullification would become the death knell of the nation. In that they were not far wrong. Madison, for his part, helped prepare an alternative set of resolutions for Virginia, but was much less radical and said nothing about a power of nullification to protect the minority. The Alien and Sedition Acts showed that the majority’s will could sometimes be in error, but it was still the best way of organizing the voice of the people.

The challenge of nullification to the principle of majority rule came up again in 1832 when South Carolina nullified two tariff bills that it claimed were unconstitutional. Under the heavy influence of John Calhoun, South Carolina’s Nullification Proclamation announced that the acts “are unauthorized by the constitution of the United States, and violate the true meaning and intent thereof and are null, void, and no law, nor binding upon this State, its officers or citizens.” According to Calhoun and South Carolina, every state had the right to judge for itself the constitutionality of the laws of the country and to negate those laws if a state believed them to be unconstitutional. This was the only way of protecting the minority against the overreach of the majority and to make sure that minority rights and interests are taken into account.

But the nullifiers’ claims did not stop there. Backing up their doctrine of nullification was an appeal to secession. The Proclamation warned the national government that any attempt to change South Carolina’s nullification by force would leave the state with no choice but to leave the Union. An act of aggression against the state would be

“inconsistent with the longer continuance of South Carolina in the Union; and that the people of this State will henceforth hold themselves absolved from all further obligation to maintain or preserve their political connection with the people of the other States; and will forthwith proceed to organize a separate government, and do all other acts and things which sovereign and independent States may of right do.”

Eventually, South Carolina backed down on nullification, but the fact it had been raised again speaks to what a powerful challenge it was to the principle of majority rule. It is for this reason that Madison as an elder statesman prepared a response to Calhoun and a defense of majority rule. In 1833, Madison wrote in a letter that articulated his strong position on majority rule and how the extended republic makes majority rule possible and safe. As Madison wrote,

“Those who framed and ratified the Constitution believed that as power was less likely to be abused by majorities in representative governments than in democracies…and less likely in the larger than in the smaller communities, under a representative government, inferred also, that by dividing the powers of Government and thereby enlarging the practicable sphere of Government, unjust majorities would be formed with still more difficulty.” 

To men like Calhoun, and Jefferson, who would attack majority rule, Madison put the matter plain. Without majority rule, republican government was simply not possible. This made it clear that “while the Constitution is in force, the power created by it [in a popular majority] must be the legitimate power, and obeyed as the only alternative to the dissolution of all government.” Thus, it is, according to Madison, that majority rule under constitutional government is not to be preferred because it is perfect, but because it is the least imperfect.

Eric C. Sands is Associate Professor of Political Science and International Affairs at Berry College. He has written a book on Abraham Lincoln and edited a second volume on political parties. His teaching and research interests focus on constitutional law, American political thought, the founding, the Civil War and Reconstruction, and political parties.

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Principle of Self-Governing

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Guest Essayist: Josh Herring
John Jay, first Chief Justice of the United States Supreme Court

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

In The Abolition of Man, C.S. Lewis argues that education exists to inspire students’ affections so that they love good and hate evil. Such, the Western tradition has held time out of mind, is the route to being able to perceive the choices which lead one towards a happy life, and the choices which lead away from such an end. Lewis stands in agreement with both Aristotle and Kierkegaard in affirming that as rational creatures, human beings have the ability to make real choices.

It is this capacity for rational choice that makes the founding principle of “self-government” so vital for the flourishing of the American republic. James Madison famously wrote that the regime the founders and framers envisioned could only be maintained by a “moral people,” meaning that the American system of governance depends upon the majority of citizens practicing customs which train the heart and hands to love what is good. The founders were not naive; they knew the evil that resides in the human heart. And yet, their federalist system envisioned a people whose religious allegiance and moral training enabled them to choose right over wrong, good over evil, beneficial over harmful, in most cases. John Jay made the connection between a self-governing people choosing virtue and maintaining their freedom clear:

Let us also be mindful that the cause of freedom greatly depends on the use we make of the singular opportunities we enjoy of governing ourselves wisely; for if the event should prove, that the people of this country either cannot or will not govern themselves, who will hereafter be advocates for systems, which however charming in theory and prospect, are not reducible to practice. If the people of our nation, instead of consenting to be governed by laws of their own making, and rulers of their own choosing, should let licentiousness, disorder, and confusion reign over them, the minds of men every where, will insensibly become alienated from republican forms, and prepared to prefer and acquiesce in Governments, which, though less friendly to liberty, afford more peace and security…[1]

Such self-governance is necessary for the flourishing of a legal system within which the people can, through various hierarchical structures, vote to construct their society as they see fit. We have that capacity. Given this reality, the importance of self-government should be clear. We need citizens to value rule of law, to see and approve of the connection between natural law and civil law, to perceive the necessary goods of property rights and constitutional order for the American way of life to continue. Different regimes exist; it takes but a momentary survey of 20th century history to see fascism, communism, and dictatorship as counter examples of what is possible. How then do we inculcate the value of self-governance in the rising generation?

Self-governance becomes a question of education. And this is where the classical education renewal movement holds the seeds of restoring health and vitality to the American way of life. I propose three ways the classical education passes on the principle of self-governance to students. First, we teach students that humans exist as embodied souls, and as such hold intrinsic worth. As rational creatures of infinite value, their choices matter. But with those choices comes responsibility. Second, school is a place for students to learn that actions, words, and ideas have consequences. Choosing to study diligently throughout the term results in academic progress and completion of a course. Engaging in physical violence results in expulsion. Being a faithful, diligent student who participates in the great tradition leads to forming strong relationships with teachers (creating the teachers’ ability to write recommendations). Third, classical schools teach students to see the past as an inheritance they must receive, steward, and pass on. In so doing, students take ownership of the ideas, values, concepts, and skills that previous generations have developed. They then exercise those ideas to build a fulfilling life capable of reaching happiness. Through these concepts, long abandoned by mainstream education, the classical renewal movement offers hope to an America in need of rediscovering her first principles.

A self-governing citizenship is the only way to avoid Thrasymachus’s accusation in The Republic that “Justice is nothing but the will of the stronger.” If a people will not govern themselves, they will eventually cause their own destruction. But such an end is not inevitable. In families, in churches, in schools, and in all the variations of Edmund Burke’s “little platoons” which make up our society, the principle of self-governance is still taught, practiced, and exemplified. So long as we live aware of the value of our choices, we preserve our freedom. In losing that awareness, in living as if reality were consequence-free, we exchange freedom for bondage. Someone will rule over us, and for that to be ourselves, we must recover self-governance as a way of life.

Josh Herring is Professor of Classical Education at Thales College, where he oversees the development of the Classical Education teacher training program. He also serves as Director of Debate for the Thales Debate Network, and hosts The Optimistic Curmudgeon podcast. He tweets at @TheOptimisticC3.

[1]  John Jay. “Citizen of New York: An Address to the People of the State of New York” (April 15, 1788).

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Under Strict Limits: Principle of a Written U.S. Constitution, a Contract Allowing Government to Run Under Authority of the American People

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Guest Essayist: Andrew Langer
“Washington as Statesman at the Constitutional Convention” a painting depicting George Washington presiding over the Constitutional Convention of 1787, by Junius Brutus Stearns.

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

The brilliance of the United States Constitution lies not just in its innovative governance structure but in its foundational principle: that it is a written contract allowing, under strict limits, a government to run under the authority of the American people within the states. This principle, in fact, was not an accidental development but a conscious response to the concerns and criticisms prevalent in the post-revolutionary era. One such concern was voiced in a 1778 letter disparaging the American constitutions as inadequate in their republican form, claiming they replicated the tyrannies America sought to escape. It is to this concern that John Adams, a pivotal figure in the nation’s founding, offered a compelling defense.

Adams replied in his first letter which was part of his three-volume response written from 1787 to 1788:

“There are in the productions of all of them, among many excellent things, some sentiments, however, that it will be difficult to reconcile to reason, experience, the constitution of human nature, or to the uniform testimony of the greatest statesmen, legislators, and philosophers of all enlightened nations, ancient and modern.” – A Defense of the Constitution of Government of the United States of America, Letter I, Volume I, Preliminary Observations, John Adams, Grosvenor-Square, October 4, 1786

Even though, through his letters, Adams’ initial response is directed to the American state constitutions of the time, through this lens, the U.S. Constitution that would come later can be seen not just as a foundational document of a nation, but as a meaningful dialogue with history, philosophy, and human nature itself. His profound assertion draws attention to the uniquely American synthesis of reason, experience, and an informed understanding of human nature that undergirds the U.S. Constitution.

Adams’ defense provides an insightful understanding of the Constitution’s design. The reference to “reason, experience, the constitution of human nature” underscores the importance of these elements in the design of the Constitution. He acknowledges that no political document, including the American constitutions, can be free from imperfections. Yet, he contends that the United States Constitution, by grounding itself in human reason and experience, offers a robust framework for the functioning of a republic.

The Constitution’s written nature, as Adams seems to imply, is central to ensuring its efficacy as a contract between the people and the government. A written constitution provides a tangible and constant point of reference, a standard against which the actions of the government can be measured. In the context of the American Revolution, a written constitution was particularly significant. It represented a break from the unwritten traditions and discretionary powers that characterized the monarchy America was rebelling against.

Moreover, the Constitution goes beyond merely setting the rules of governance. Its provisions for separation of powers, checks and balances, and federalism were innovative measures to prevent the concentration of power – a direct response to the accusation of the American constitutions merely “repeating dictatorships.” These mechanisms ensure that no single entity within the government can dominate, thus safeguarding the people’s control over their government.

In the light of Adams’ emphasis on the “uniform testimony of the greatest statesmen, legislators, and philosophers of all enlightened nations, ancient and modern,” it is clear that the Constitution was not conceived in a vacuum. Instead, it was informed by a rich tradition of political thought. The Framers drew upon lessons from ancient Rome and Greece, Enlightenment philosophies, and contemporary political experiences. They sought to create a Constitution that would not only serve the immediate needs of the fledgling nation but also stand the test of time.

Moreover, they were influenced heavily by the country’s experience under the Articles of Confederation, the nation’s first written constitution. Its deficiencies, including the national government’s inability to act during Shays’ Rebellion (1786–87), exposed the need for a more robust central government capable of direct taxation and regulating interstate commerce.

Furthermore, the U.S. Constitution embodies the principle that the ultimate authority rests with the American people. This principle is most evident in the Constitution’s opening words: “We the People…” It is the people who are giving the government its power and setting its limits. The Constitution, therefore, is not an instrument of the government to control the people, but an instrument of the people to control their government. This is the essence of the republican form that the 1778 critique claimed was lacking.

The Constitution’s authors were acutely focused on limiting the power of government and securing citizens’ liberty. They sought to strike a balance between authority and liberty, embodying the central purpose of American constitutional law. To achieve this, they adopted the doctrine of legislative, executive, and judicial separation of powers, checks and balances, and explicit guarantees of individual liberty.

Integral to the Constitution’s design is the principle of a social contract—a fundamental agreement between the government and the governed. This social contract places the Constitution within the Enlightenment’s philosophical tradition, drawing upon ideas from ancient philosophy, English common law, English political theory, and the European Enlightenment.

However, this isn’t the complete picture of the Constitution’s influence. To fully comprehend its breadth and significance, it’s essential to understand John Adams’ quote in context. His argument suggests a keen awareness of the complexities and potential pitfalls of constructing a republic, a challenge the Framers of the U.S. Constitution had to grapple with—an awareness no doubt gleaned from his years of political work in the Continental Congress, where he saw firsthand the perils of unbridled power, fostered a deep-seated commitment to the principles of decentralization and individual liberty. It was Adams who famously remarked that “power must never be trusted without a check.”

Adams’ involvement in the negotiations leading to the unanimous vote on the Declaration of Independence further honed his views on the balance of power. He witnessed the states banding together in a common cause, each contributing to the struggle for independence while retaining their individual identities and rights. The unanimous vote was a testament to the power of cooperative federalism, a principle that would later be enshrined in our Constitution.

In crafting the Constitution, Adams drew on these experiences to advocate for a system of government that balanced the authority of the federal government with the rights of states and individuals. He championed the idea of a strong central government, yes, but one that was kept in check by the rights of states and the liberties of the citizenry. It is this delicate equilibrium, so cherished by Adams, that has allowed our republic to flourish.

For Adams, and for us, the essence of American liberty lies in this balance. His experiences in the crucible of independence shaped a vision of government that valued both the collective strength of the federal government and the individual freedoms of its citizens.

The United States Constitution stands as a beacon of American political philosophy, embodying a profound understanding of human nature, reason, and the wisdom of past statesmen, legislators, and philosophers. It is the embodiment of a social contract, firmly rooted in the principle of popular sovereignty. Yet, it is also a testament to the profound challenges and complexities involved in crafting a republic that is both robust and responsive to the needs of its citizens. To fully appreciate its significance, we must heed Adams’s words and reconcile its provisions with the wisdom that can only come from experience.

Andrew Langer is President of the Institute for Liberty, as well as Chairman and Founder of the Institute for Regulatory Analysis and Engagement. IFL is a non-profit advocacy organization focused on advancing free-market and limited government principles into public policy at all levels. IRAE is a non-profit academic and activist organization whose mission is to examine regulations and regulatory proposals, assess their economic and societal impacts, and offer expert commentary in order to create better public policies. Andrew has been involved in free-market and limited-government causes for more than 25 years, has testified before Congress nearly two dozen times, spoken to audiences across the United States, and has taught at the collegiate level.

A globally-recognized expert on the impact of regulation on business, Andrew is regularly called on to offer innovative solutions to the challenges of squaring public policy priorities with the impact and efficacy of those policies, as well as their unintended consequences. Prior to becoming President of IFL and founding IRAE, he was the principal regulatory affairs lobbyist for the National Federation of Independent Business, the nation’s largest small business association. As President of the Institute for Liberty, he became recognized as an 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.

Andrew has had an extensive career in media—having appeared on television programs around the world. From 2017 to 2021, he hosted a highly-rated weekly program on WBAL NewsRadio 1090 in Baltimore (as well as serving as their principal fill-in host from 2011 until 2021), and has filled in for both nationally-syndicated and satellite radio programs. He also created and hosted several different podcasts—currently hosting Andrew and Jerry Save The World, with long-time colleague, Jerry Rogers.

He holds a Master’s Degree in Public Administration from Troy University and his degree from William & Mary is in International Relations.

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Principle of a Written United States Constitution as the Supreme Law of the Land, Designed for the Preservation of Liberty

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Guest Essayist: Ben Slomski
Signing the Mayflower Compact 1620, a painting by Jean Leon Gerome Ferrishttps://en.wikipedia.org/wiki/Mayflower_Compact

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

The idea of a constitution is an ancient one. The idea of a written constitution, however, is relatively new. To be sure, regimes have long created written documents and legal codes that outline the structure of governing authorities and protect certain rights for citizens and subjects. Yet before the United States Constitution, these written documents were not seen as fundamental for understanding what constitutes a regime. Before Americans chose to produce written constitutions, a constitution was understood in terms of the norms that make up a regime rather than the words written on any piece of paper.

Classical political thought recognized the need to study constitutions, but a regime’s constitution was the collection of formal and informal norms that made up a people’s way of life in a regime. In Aristotle’s Politics, he describes the regime (the Greek word politeia) as “an arrangement of a city with respect to its offices, particularly the one that has authority over all matters. For what has authority in the city is everywhere the governing body, and the governing body is the regime.” In other words, the constitution of a city was not a legally-binding written document outlining the powers and restrictions on officers. Instead, the constitution was the way the people of a regime lived and how they chose to organize their governing offices at a given time. Constitutions were much less a matter of fixed law and much more a matter of a people’s organic norms. Politics was inherently contingent as a regime would change in its nature whenever the people changed in their ways and how they chose to organize authority.

All of this changed with the United States Constitution. Certainly, the idea of a written document to serve as the fundamental law of government did not spring from the mind of James Madison in 1787 without any antecedents. Early settlers of the American colonies wrote documents outlining the governing principles for their new settlements, such as the Pilgrims’ Mayflower Compact. The idea of a model constitution for a regime had been developing in modern political thought, such as in John Locke’s Second Treatise of Government. During the American Revolution, states began writing new constitutions even before the Declaration of Independence was published. The Continental Congress passed the Articles of Confederation as the first written constitution for the United States. The document produced by the Constitutional Convention in 1787 to correct the defects of the Articles, which was then ratified by the American people, was the culmination of these efforts.

The shift in thinking on the importance of a written United States Constitution cannot be understated. The implicit idea was that a written document outlining the new government’s fundamental principles and its structure could establish a legal and political framework to shape the informal norms by which the people constitute themselves. The Constitution would serve an educational role by informing citizens of the government’s organizing principles. Under a written constitution, politics could be at least less contingent than under the older notion of a constitution as there are written norms that can last across generations to shape political conduct. A written constitution does not guarantee any political outcomes, of course, as politics will always be subject to the individual choices of human action. The Constitution does, however, distribute authority and establish norms in a way that will make certain outcomes more likely. The Constitution establishes a lasting structure to guide politics because there are further principles embedded in the idea of a written constitution.

One of the central ideas behind writing a constitution down is that government’s power is not unlimited. Chief Justice John Marshall explains this well in the famed Supreme Court case Marbury v. Madison:

“To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation.”

If the government’s power is absolute, then there is no reason to write down restrictions on government because it would be free to do whatever it wants. If limits on government authority are written down, then it is assumed that these limits will be upheld; otherwise, there was no point to writing the limits down. Marshall thus proclaims in Marbury that a written Constitution is “what we have deemed the greatest improvement on political institutions.”

The deepest assumption behind the idea of a written constitution is that all political power originally comes from the people. If government’s power came from within itself, then there would be no natural limits to what government can do and no need for written restrictions. Instead, governmental power is granted by the people and a constitution serves as a specific statement of what is granted and what authority the people retain for themselves. This delegation of power must be done in an explicit, concrete act by writing it in a public document approved by the people to embody their fundamental will. The written United States Constitution recognizes that the ultimate source of authority remains with the people who have enacted a document to last for ages so that future generations will share the blessings of this supreme law of the land.

Benjamin Slomski is Assistant Professor of History and Political Science at Ashland University.

 

 

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Principle of Appropriate Role and Purpose of Government Upon Protection of Natural, Unchangeable, Unalienable Rights

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Guest Essayist: Gary Porter

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

Why Government?

Thomas Jefferson said it most succinctly: “to secure these rights, governments are instituted among men.” We could end this discussion right there – the “appropriate role and purpose of government” is the “security, the protection of unalienable rights,” but we all know there is more to the story.

Americans today are losing touch with the concept of God-given, unalienable rights, some in fact firmly reject the idea, even the existence of such rights, believing instead that government is not only the protector of our rights, but also their source. America’s Founders rejected this concept out of hand. As Jefferson clearly stated, we “are endowed by [our] creator with certain unalienable rights.” He made a similar observation two years prior in his Summary View of the Rights of British America[i] and later in his 1785 Notes on the State of Virginia.[ii]

The Source of Rights

Today, however, when someone speaks of “natural law” or “natural rights” they should be asked to clarify whether they are referring to God-given natural rights or rights which accrue to humans “naturally” through a social contract or “the nature of things.” The use of the adjective “inherent” in describing rights, as George Mason did in the 1776 Virginia Declaration of Rights,[iii] lends itself to two different interpretations, the rights are either uniquely inherent to humans as creations of God or are uniquely inherent to humans as the apex species of evolution. Given this, I prefer “unalienable” to “inherent.”

Though a Christian (he authored “The Truth of the Christian Religion”), the Dutch political philosopher Hugo Grotius[iv] promoted the idea (borrowed from Cicero and others) that natural law was created by the natural order and was not, or at least not necessarily a creation of God. Natural law did not require God’s revelation but could be discovered simply and solely through human reason. While America’s Founders knew of and respected Grotius, particularly his famous 1625 On the Law of War and Peace (De Jure Belli ac Pacis), as we see will in the following quotations, they held to a theistic source for both natural law and natural rights.

But even America’s leaders had to remind their fellow citizens of this from time to time. Writing in reply to an essay from “The Farmer,”[v] Alexander Hamilton explained:

“The fundamental source of all your errors, sophisms[vi] and false reasonings is a total ignorance of the natural rights of mankind. Were you once to become acquainted with these, you could never entertain a thought, that all men are not, by nature, entitled to a parity of privileges. You would be convinced, that natural liberty is a gift of the beneficent Creator to the whole human race, and that civil liberty is founded in that; and cannot be wrested from any people, without the most manifest violation of justice. Civil liberty is only natural liberty, modified and secured by the sanctions of civil society. It is not a thing, in its own nature, precarious and dependent on human will and caprice; but it is conformable to the constitution of man, as well as necessary to the well-being of society…”To grant that there is a supreme intelligence who rules the world and has established laws to regulate the actions of his creatures; and still to assert that man, in a state of nature, may be considered as perfectly free from all restraints of law and government, appears to a common understanding altogether irreconcilable. Good and wise men, in all ages, have embraced a very dissimilar theory. They have supposed that the deity, from the relations we stand in to himself and to each other, has constituted an eternal and immutable law, which is indispensably obligatory upon all mankind, prior to any human institution whatever. This is what is called the law of nature . . . . Upon this law depend the natural rights of mankind: the Supreme Being gave existence to man, together with the means of preserving and beatifying that existence. He endowed him with rational faculties, by the help of which, to discern and pursue such things, as were consistent with his duty and interest, and invested him with an inviolable right to personal liberty, and personal safety . . . . The Sacred Rights of Mankind are not to be rummaged for, among old parchments, or musty records. They are written, as with a sun beam, in the whole volume of human nature, by the Hand of the Divinity itself; and can never be erased or obscured by mortal power.”[vii]

Human beings have natural, unalienable rights which are incapable of being “be erased or obscured” by any act of man or government.

In his 1765 Dissertation on the Canon and Feudal Law, John Adams insisted that our rights were “derived from the great Legislator of the universe.”

Virginian lawyer George Mason, arguing in the 1772 case of Robin v. Hardaway, (1 Jefferson 109) affirmed that:

“The laws of nature are the laws of God: A legislature must not obstruct our obedience to him from whose punishments they cannot protect us. All human constitutions which contradict His laws, we are in conscience bound to disobey. Such have been the adjudications of our courts of justice.” [viii]

Other American Founders, such as John Dickinson, expressed similar views:

“Kings or parliaments could not give the rights essential to happiness… We claim them from a higher source – from the King of kings, and Lord of all the earth. They are not annexed to us by parchments and seals. They are created in us by the decrees of Providence, which establish the laws of our nature. They are born with us; exist with us; and cannot be taken from us by any human power without taking our lives. In short, they are founded on the immutable maxims of reason and justice.”[ix]

Dickinson was an intriguing man, largely overlooked today. Born into a family with long-standing ties to the Quaker religion, Dickinson received an education in the law at the Middle Temple, London, before setting up his practice near Philadelphia. He inherited land holdings in both Pennsylvania and Delaware and became one of the richest men in both states.[x] In 1776, Dickinson represented Pennsylvania at the Continental Congress as it considered independence. His Quaker roots kept him from openly voting for independence (and inevitable war), so on the fateful day of July 2, 1776, Dickinson (along with Robert Morris) “absented himself” to give the Pennsylvania delegation a majority in favor of Virginia’s resolution for independence. Once the resolution for independence passed, Dickinson similarly refused to vote in favor of Jefferson’s Declaration, a decision which then forced his resignation from the Pennsylvania delegation. Once out of the Congress, Dickinson surprisingly joined the Pennsylvania militia as a Brigadier General, becoming one of only two members of the First Continental Congress who actively took up arms during the war. Dickinson capped his long public service career by representing Delaware at the Constitutional Convention.

In this statement on natural rights, Dickinson repeats familiar themes: rights originating with a Creator God, resulting from God’s natural law, and which “cannot be taken from us by any human power.”

James Wilson, one of six men who signed both the Declaration of Independence and the Constitution, after calling God “the promulgator as well as the author of natural law,” observed in his famous 1790 Lectures on Law:

“I here close my examination into those natural rights, which, in my humble opinion, it is the business of civil government to protect, and not to subvert, and the exercise of which it is the duty of civil government to enlarge, and not to restrain. I go farther; and now proceed to show, that in peculiar instances, in which those rights can receive neither protection nor reparation from civil government, they are, notwithstanding its institution, entitled still to that defence, and to those methods of recovery, which are justified and demanded in a state of nature.”[xi]

To protect and enlarge our natural rights, this becomes the “business” of civil government, or at least one of the responsibilities or duties of government.

The History of Rights (much abridged)

Rights, and the security thereof, had gradually become a central focus of Englishmen as they wrestled with two oftentimes opposing concepts: the divine (i.e., God-endorsed) right of kings on the one hand, and the unalienable, God-given rights of individuals on the other hand. Magna Carta became a waypoint in this investigation; forcing King John to subordinate his divine right and accept responsibility for protecting certain individual rights, including due process of law and trial by jury.

Magna Carta was soon ignored, but was eventually replaced by newer versions. In the 17th century, Magna Carta’s rights were supplemented by Parliament’s Petition of Right (1628) and the English Bill of Rights (1689). This growing focus on natural rights accompanied America’s settlers as they sailed for the colonies, being encapsulated in the first colonial charters as “liberties, franchises and immunities”[xii] of Englishmen. From there, rights were expanded and reinforced, expounded in a host of colonial documents, beginning with the Mayflower Compact and ending one hundred and seventy-one years later with the Constitution’s Bill of Rights. Over this period, the colonists seldom passed up an opportunity to reiterate their essential rights. A partial list:

1620 – Mayflower Compact (Plymouth)

1636 – Code of Law (Plymouth)

1639 – Fundamental Orders (Connecticut)

1639 – Act for the Liberties of the People (Maryland)

1641 – Body of Liberties (Massachusetts)

1677 – Declaration of the People (Virginia)

1701 – Charter of Privileges (Pennsylvania)

1763 – The Rights of the British Colonies Asserted and Proved (James Otis)

1764 – The Rights of Colonies Examined (Stephen Hopkins)

1765 – Declaration of Rights and Grievances (Stamp Act Congress)

1766 – An Inquiry into the Rights of The British Colonies (Richard Bland)

1772 – The Rights of the Colonists (Samuel Adams)

1774 – A Summary View of the Rights of British America (Thomas Jefferson)

1774 – Declaration and Resolves (1st Continental Congress)

1775 – Declaration on the Causes of Taking Up Arms (2nd Congress)

1776 – (January) Bill of Rights (New Hampshire Convention)

1776 – (June) Declaration of Rights (Virginia)

1776 – (July) Declaration of Independence (2nd Continental Congress)

1776 – (July) Declaration of Rights (Pennsylvania)

1776 – (September) Declaration of Rights (Delaware)

1780 – Declaration of Rights (Massachusetts)

1788 – Declaration of Rights (North Carolina)

1790 – Of the Natural Rights of Individuals -Lectures on Law (James Wilson)

1791 – The U.S. Bill of Rights

Natural law and the natural rights which spring from them are enjoying a resurgence in popularity of late, thanks to the scholarly work of men like John Finnis in Natural Law and Natural Rights (Clarendon Law Series, 2nd Edition; J. Budziszewski in Written on the Heart: The Case for Natural Law; Hadley Arkes in Mere Natural Law: Originalism and the Anchoring Truths of the Constitution; and others. As John Horvat explains, “the growing acceptance of natural law theory among frustrated Americans is shaking the legal field.”[xiii] This resurgence within the legal and scholarly communities appears to terrify some, however, natural law and natural rights are still ignored or misunderstood by the vast majority of Americans.

The Extent of Natural Rights

There is no known “inventory” of natural rights, at least none that all political philosophers or natural rights expositors over the millennia have agreed upon. The Founders knew of course of the Ten Commandments, which form the core of “the laws of Nature’s God.” If God commands “thou shalt not steal” it seems reasonable to derive from that “a right to acquire and retain property.” “Thou shalt not murder” denotes a “right to the preservation of one’s life.” But no Founding Father appears to have attempted an enumeration of all natural rights.  Indeed, as James Iredell explained at the 1788 North Carolina Ratifying Convention, such an enumeration, if used as the basis for a Bill of Rights:

“…would not only be useless, but dangerous, … it would be implying, in the strongest manner, that every right not included in the [enumeration] might be impaired by the government without usurpation; and it would be impossible to enumerate every one. Let any one make what collection or enumeration of rights he pleases, I will immediately mention twenty or thirty more rights not contained in it.”[xiv]

But a useful list of those essential rights the Founders collectively supported can nevertheless be gleaned from their writings. As Chester James Antieau explains:[xv] “the natural rights on which there was the largest agreement and the greatest significance were … freedom of conscience and religion, life, liberty and the pursuit of happiness, property, the right to govern and tax themselves, and freedom of communication.”

Some Founders also supported rights derived from the common law, such as the right to trial by jury, and freedom from warrantless searches, but such rights cannot be denominated as “natural” rights since they would have no rational basis in a hypothetical state of nature.

How Should Rights Be Secured?

The next question we must consider is: how should the government fulfill its responsibility of protecting our unalienable rights? Is a Bill of Rights necessary, or even appropriate?

James Madison and other Founders considered the Constitution itself to be a “bill of rights.” A constitution of limited and enumerated powers, carefully drawn, will protect individual rights by not providing the new government with the power or authority necessary to infringe on those rights. “For why declare that things shall not be done which there is no power to do?” wrote Alexander Hamilton in Federalist 84.[xvi] While the Framers certainly felt they had created a limited power document, replete with checks and balances, history has shown the ambiguity of language to be the Framers’ downfall. The Anti-federalists saw “loopholes”; for instance, the power given the Supreme Court would allow the court to “mould the government, into almost any shape they please.”[xvii] The Anti-federalists fumed over the absence of a Bill of Rights, “would it have consumed too much paper?” scowled Patrick Henry. When sent a copy of the Constitution to review, Jefferson replied by gently chiding his friend: “A bill of rights is what the people are entitled to against every government on earth, general or particular; and what no just government should refuse, or rest on inferences.” [xviii]And so a reluctant James Madison agreed to single-handedly champion the project.

The initial draft he submitted to Congress, borrowing heavily from the Virginia Declaration of Rights, contained several protections which did not survive the House and Senate “wordsmithing.” Madison’s treasured “rights of conscience” didn’t even make it through the House Committee on which Madison himself sat!. Despite these setbacks, Madison persisted and the document was finally sent to the states for ratification, achieving that on December 15, 1791, with Virginia’s acceptance. But would a Bill of Rights be enough?

In an October 1788 letter to Thomas Jefferson, Madison had warned that even a Bill of Rights might not be sufficient: “Repeated violations of these parchment barriers have been committed by overbearing majorities in every State. In Virginia I have seen the bill of rights violated in every instance where it has been opposed to a popular current.”[xix] “Tyranny of the majority,” the primary reason the Founders’ abhorred democracy. But infringements of rights do not require a majority, with the help of government even a minority can prevail.

When Governments Become Corrupted

Americans have recently witnessed how a government can be enticed to infringe upon our unalienable rights by a “popular current” arising from even a small minority faction. The revelation that officials in the Executive branch of the federal government colluded with media companies to silence the public expression of viewpoints they did not agree with shocks us, it is reminiscent of the Communist regimes under Stalin and Mao, not to mention the authoritarian governments in present-day Russia and China.

Jefferson believed that: “The republican is the only form of government which is not eternally at open or secret war with the rights of mankind.”[xx]

The Americans are the ultimate sovereigns in their republican form of government; government is their servant, not the reverse. Unfortunately, the American people, by and large, have abandoned the Founders’ view of both law and government.

If there is any good news here it is that at least some Americans, those who understand the societal sea-change being forced upon them, are willing to fight for protection of their unalienable rights. Welcome assistance comes from the present Supreme Court, which is currently staffed with a majority of justices who share an originalist and therefore Founders’ view of rights. But our trust in a temporary majority of originalist justices should be cautioned by the realization that future courts may not be so favorably apportioned. As Jefferson reminds us: “In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”[xxi]

So, it is to the Bill of Rights itself we must turn; is its language sufficient or too open to interpretation? Should we consider the words of the original Bill of Rights as unamendable, or should we be willing to clarify ambiguous 18th century language? Are we to accept our society’s present worldview confusion as inevitable or should we work to correct it?

These are the sort of questions we should be asking, and debating.

In his 1967 Inaugural Address, the great Ronald Reagan cautioned:

“Freedom is a fragile thing and it’s never more than one generation away from extinction. It is not ours by way of inheritance; it must be fought for and defended constantly by each generation, for it comes only once to a people.  And those in world history who have known freedom and then lost it have never known it again.”[xxii]

If we want to continue to enjoy our natural, unalienable, God-given rights, and we wish our posterity to be likewise blessed, we must be prepared to fight for and defend them.

I will conclude with the words of Founder John Jay, first Chief Justice of the Supreme Court under the new Constitution, who in 1777, while instructing (charging) a New York grand jury, reminded us:

“Every member of the State ought diligently to read and to study the constitution of his country and teach the rising generation to be free. By knowing their rights, they will sooner perceive when they are violated, and be the better prepared to defend and assert them.”[xxiii]

Note that, for (at that time) Judge Jay, reading the Constitution is not sufficient, it should also be studied, and diligently so. The goal, of course, lies not simply in the reading and studying; the goal is to pass along what you have learned to the next generation of Americans. Even then, the project is not complete; the rising generation requires this knowledge to be better equipped to defend and assert their rights, thus, hopefully, perpetuating a society of freedom and liberty.

John Jay would be proud of the commendable work Constituting America accomplishes in pursuing his charge.

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 periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at 

gary@constitutionleadership.org, on Facebook or Twitter @constitutionled.

[i] https://avalon.law.yale.edu/18th_century/jeffsumm.asp.

[ii] https://docsouth.unc.edu/southlit/jefferson/jefferson.html.

[iii] “That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”

[iv] A latinizing of his given name: “Huig van Groot.”

[v] Hamilton was replying to a series of essays, appearing from November 1774 to January 1775, written by “A W. Farmer, (loyalist Bishop Samuel Seabury, the first American Episcopal bishop), who had set out “to detect and expose the false, arbitrary, and tyrannical PRINCIPLES upon which the [Continental] Congress acted, and to point out their fatal tendency to the interests and liberties of the colonies.” To see the arguments Hamilton is “refuting,” the “Farmer’s” letters can be accessed at: http://anglicanhistory.org/usa/seabury/farmer/.

[vi] Sophisms: specious arguments for displaying ingenuity in reasoning or for deceiving someone. Dictionary.com.

[vii] Alexander Hamilton, The Farmer Refuted, February 23, 1775, New York.

[viii] https://cite.case.law/jefferson/1/109/.

[ix] John Dickinson, An Address to the Committee of Correspondence in Barbados, 1766.

[x] Interestingly, for a short period of time (November 1782-January 1783) Dickinson served as the President of both states.

[xi] http://www.nlnrac.org/node/241.

[xii] 1606 First Virginia Charter, at: https://encyclopediavirginia.org/entries/first-charter-of-virginia-1606/.

[xiii] https://www.tfp.org/why-the-left-hates-and-is-terrified-by-natural-law/.

[xiv] https://docsouth.unc.edu/nc/conv1788/conv1788.html, p. 192.

[xv] Chester James Antieau, Natural Rights And The Founding Fathers-The Virginians, 17 Wash. & Lee L. Rev. 43 (1960), http://scholarlycommons.law.wlu.edu/wlulr/vol17/iss1/4.

[xvi] https://avalon.law.yale.edu/18th_century/fed84.asp.

[xvii] Brutus XI, in The Complete Anti-Federalist, Herbert J. Storing, ed., (Chicago: The University of Chicago Press, 1981) Volume Two, Part 2, 417-422.

[xviii] Thomas Jefferson, Letter to James Madison, December 20, 1787.

[xix] https://press-pubs.uchicago.edu/founders/documents/v1ch14s47.html.

[xx] Letter to William Hunter, 11 March 1790., at https://founders.archives.gov/documents/Jefferson/01-16-02-0130.

[xxi] Thomas Jefferson, in a draft of the Kentucky Resolutions of 1798.

[xxii] This is the version Reagan uttered during his Inaugural Address as President on January 5, 1967, not the more familiar and edited version published afterwards. See: https://www.reaganlibrary.gov/archives/speech/january-5-1967-inaugural-address-public-ceremony.

[xxiii] The Correspondence and Public Papers of John Jay, ed. Henry P. Johnston, A.M. (New York: G.P. Putnam’s Sons, 1890-93). Vol. 1 (1763-1781), p. 164., accessed at https://oll.libertyfund.org/title/johnston-the-correspondence-and-public-papers-of-john-jay-vol-1-1763-1781?html=true.

 

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Principle of Natural Law as the Foundation for Constitutional Law

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Guest Essayist: Joerg Knipprath
Thomas Paine, oil painting by Laurent Dabos, 1791.

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

Thomas Paine became an immensely popular figure during the American War of Independence, primarily on the basis of his works Common Sense, a pamphlet initially published anonymously in 1776, and a series of pamphlets collectively referred to as The American Crisis, published from 1776 to 1783. They were ringing defenses of the American cause, well-written in uplifting and patriotic language easily accessible to ordinary readers.

Yet, only a handful of mourners attended that same Thomas Paine’s funeral three decades later, he having estranged many American leaders by his attacks on the character of George Washington in an open letter published in 1796. As well, his many occasions of writing negatively about organized religion, especially in the three parts of the pro-deism Age of Reason, had alienated much of the American public.

In between, Paine lived in England, where he soon became the target of official displeasure after publishing vigorously anti-monarchist and anti-aristocratic tracts in the two volumes of Rights of Man. While these works were widely read in England, his enthusiastic support of the French Revolution cost him popularity. Fearing prosecution, he fled to France.

Paine was initially very well received in the revolutionary French Republic. He was elected to the National Convention and appointed to its committee to draft a constitution. However, he soon made himself unpopular with the radical faction and eventually was imprisoned and slated for execution. He was saved from a date with the guillotine by the fall of the radical leader Maximilien Robespierre and subsequently was released from prison by the intervention of the new American ambassador, James Monroe.

He stayed a few more years and met Napoleon Bonaparte, who spoke admiringly about him, at least until Paine denounced the future emperor as a charlatan. Not long thereafter, Paine decamped for the United States at the invitation of one of his more steadfast friends, President Thomas Jefferson.

What raised Paine to such heights of fortune was his talent for “plain speaking.” That was also a cause for his lows, when his direct style rubbed influential persons the wrong way. His works during the Revolutionary Period were said to have made independence inevitable by bringing the common people to the cause, the people who might not have understood some of the more refined philosophical arguments made by elite American intellectuals citing elite European and ancient intellectuals. His most famous work, Common Sense, sold 500,000 copies by the end of the war in a country of fewer than 3 million free persons, including children. Jefferson, comparing him to Benjamin Franklin as an essayist, opined that, “No writer has exceeded Paine in ease and familiarity of style, in perspicuity of expression, happiness of elucidation, and in simple and unassuming language.”

The first installment of The American Crisis began with a stirring call to action for a demoralized American army: “These are the times that try men’s souls: The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country; but he that stands it now, deserves the love and thanks of man and woman. Tyranny, like Hell, is not easily conquered; yet we have this consolation with us, that the harder the conflict, the more glorious the triumph.” Four days after its publication in a Philadelphia newspaper, General George Washington had the pamphlet read to his soldiers recovering near the Delaware River after a long retreat from New York. The following night, Christmas Eve, the army crossed that river during a winter storm and, on Christmas Day, won a resounding victory at Trenton, New Jersey.

Paine’s value as a propagandist was not just in the cause of revolution and independence. He was a committed republican, to the point that it alienated some of his erstwhile admirers. The purpose of the quoted document, Dissertation on First Principles of Government, was to reiterate  and develop the points about hereditary versus representative government made in Rights of Man. Having concluded that hereditary government was a form of tyranny, and even treason against successive generations, Paine rooted representative government in the inherent equality of human beings. The most significant right which flows from that equality is the right of property in oneself. If government is to be formed, as it must for the better protection of people in their persons and estates, each adult has the right to participate in that process on the principle of equality. If much of this sounds like the philosophy of John Locke, that should be no surprise, in light of the popularity of Lockean ideas at that time. But Paine made those ideas more accessible to ordinary people. Unlike many American state constitutions at the time, Paine rejected property qualification for voting. He did not address female suffrage, although his frequent reference to “man,” if used generically, did not foreclose that possibility.

In the minds of many 18th-century writers on politics, the problem of a general franchise and a purely elective government was the danger it posed of degenerating into a democracy. Paine did not reject such a democracy outright, although he considered it impractical for large political entities such as France and the United States. Those parts of the Dissertation could have fit comfortably in The Federalist. Others, such as the paragraphs addressing the nature of executive power and its formulation in the Constitution of 1787, sat less well.

Paine’s discussion of the importance of voting was consistent with classical American republicanism, which also considered the “republican principle” of the vote as the mainstay of liberty. As a matter of practical application, Paine emphasized the use of majority rule, whether exercised through direct democracy in a town or a representative body. As he wrote in the Dissertation, “In all matters of opinion, the social compact, or the principle by which society is held together, requires that the majority of opinions becomes the rule for the whole and that the minority yields practical obedience thereto.”

Paine was not nearly as agitated about the baleful influence of factions as James Madison was in The Federalist. That noted, Paine’s solution to the potential problem of majority dominance over a political minority was similar to Madison’s explanation in No. 10 of The Federalist about the relative lack of danger from an entrenched majority faction in Congress compared to town or state governments. Paine observed that political majorities change depending on the issues involved, so there is constant rearranging of the composition of whatever constitutes a majority. “He may happen to be in a majority upon some questions, and in a minority upon others, and by the same rule that he expects obedience in the one case, he must yield it in the other.” Like Madison at that time, Paine could not know about the subsequent emergence of organized political parties and party discipline over elected officials.

There is, however, a danger from straight majority rule, whether that rule is exercised through direct voting by whatever class of persons is qualified to vote or in a legislature composed of some class of persons deemed qualified to stand for public office and represent the people. No matter how many laudatory words 18th-century American republicans might put forth about voting and representation, consent of the governed, and majority rule, the temptation to vote for self-interest rather than the res publica, the general wellbeing of society, and to call forth the “spirit of party,” becomes irresistible. As has been noted by cynics, without additional protections “Democracy is two wolves and a lamb deciding what is for dinner.” Or, as the 19th-century New York lawyer and judge Gideon Tucker quipped, “No man’s life, liberty, or property are safe while the legislature is in session.” Jefferson commenting in Notes on the State of Virginia on the structure of the Virginia Constitution of 1776, insisted “An elective despotism was not the government we fought for.” One of the great fallacies of modern political discourse is that we just need to get more people to vote to bring about a just society and to protect personal liberty.

Paine recognized the danger of party spirit and the need for a constitution to restrain the excesses of government, including of government by popular mandate. He decried the brutality of the French Revolution and noted, “[I]t is the nature and intention of a constitution to prevent governing by party, by establishing a common principle that shall limit and control the power and impulse of party, and that says to all parties, THUS FAR SHALT THOU GO AND NO FARTHER.” [All emphases in the original.] In addressing “party,” Paine was referring to self-interest, in this context the interest to gain and exercise unrestricted power. He opined that, “[h]ad a constitution been established [in 1793] … the violences that have since desolated France, and injured the character of the revolution, would … have been prevented.”

Instead, “a revolutionary government, a thing without either principle or authority, was substituted in its place; virtue and crime depended upon accident; and that which was patriotism one day became treason the next.” Lacking a constitution that protects inherent rights causes an “avidity to punish, [which] is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty, he establishes a precedent that will reach to himself.”

Paine’s insistence on a constitution as a check on government focused on the need for the type of protections found in the American system mainly in the Bill of Rights. A declaration of rights had to be more than a collection of meaningless slogans. It had to limit governmental action directly and expressly. Moreover, such limits were not a matter of political grace. “An enquiry into the origin of rights will demonstrate to us the rights are not gifts from one man to another, not from one class of men to another; for who is he who could be the first giver? Or by what principle, or on what authority, could he possess the right of giving? A declaration of rights is not a creation of them, nor a donation of them. It is a manifest of the principle by which they exist, followed by a detail of what the rights are; for every civil right has a natural right for its foundation, and it includes the principle of a reciprocal guarantee of those rights from man to man.” The Constitution likewise enumerates certain rights but expressly does not purport to provide an exhaustive list. As the Ninth Amendment declares, there are other rights retained by the people. It is disheartening to hear so often from law students that the Constitution “grants us rights,” an understanding of the nature of rights at odds with that of the people who drafted and adopted the Declaration of Independence, the Constitution, and the Bill of Rights.

In the American system, the Constitution is not merely a collection of customs and traditions of political practice. It is a legal charter and has the essence of law enforceable, within limits, in courts of law. It is higher law in the sense that, in case of conflict between it and ordinary federal or state statutes, the Constitution prevails. But it addresses expressly only limited topics. Almost since the Constitution’s adoption, there has been debate about the authority of courts to look to other forms of higher law reflective of the principle of inherent rights to limit legislative authority, such as theories of natural law or natural rights. That debate continues, often in trying to define what the ambiguous term “liberty” means in the Constitution, for example, in relation to abortion, marriage, or gun ownership.

Another unresolved question is whether such higher law is superior to the Constitution itself. After all, the Constitution can be amended with the requisite supermajority votes prescribed in Article V of that charter. Suppose that a constitutional amendment were adopted that protected infanticide or that repealed the prohibition of slavery. Would infanticide or slavery, at that point constitutionally permissible, yet be consistent with natural law or natural rights? If the answer is “no,” it shows a recognition that certain rights inhere in each person as a matter of essence, not as a grant from a legislative majority or a constitutional supermajority. The religious skeptic in Paine might not allow him to go as clearly to the source of those rights as did the language of the Declaration of Independence that we are endowed with them by our Creator, but Paine would readily acknowledge the existence of such higher law.

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

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Human Flourishing and the Principle of Creator-Endowed Unalienable Rights

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Guest Essayist: Joerg Knipprath

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

The Declaration of Independence famously announced that all human beings not only are created equal, but are endowed by their Creator with certain “unalienable” rights. Among those rights are life, liberty, and the pursuit of happiness. These were, as the Declaration also held, self-evident Truths, even to someone like Thomas Jefferson, the document’s author, often described as irreligious, a Deist, or a lukewarm Christian. The phrasing was not unique to the Declaration, but differed slightly from the version by John Locke from whose writing this selection of “natural rights” was drawn. Locke had assigned “property” as the third category of natural rights, the most common formulation, also used, for example, in the Bill of Rights. Moreover, Locke had urged that property was the foundation of liberty and happiness, because of the property each had in his own person, and because government’s abusive power over property, such as through arbitrary taxation, threatened one’s personal liberty and happiness.

Humans derive their equality from being God’s creatures, king and commoner, master and slave, prince and pauper alike. This is essential Christian teaching. The Creator is not an impersonal force or one who has set in motion the laws of nature but otherwise sits back and watches that creation passively as if enjoying a model railroad layout. Rather, he has actively endowed each person with certain unalienable rights. Those rights exist for the purpose of each person’s flourishing as a human being. It is for that end also that governments are established, and on consideration of which the powers of rulers are inherently limited. There is a purpose for government and, by implication, for human law, all directed by the Creator.

There is, then, a normative test for all acts of government. Such acts must be directed only to this purpose and must not violate one’s sacred rights which are beyond the authority of others to transgress. Governmental legitimacy depends on conforming to those Truths. This constitutes the very basis of the social compact, the construct by which, through the consent of the governed, political society was established in the minds of Americans in the late 18th century.

Supreme Court Justice Samuel Chase expressed these principles in 1798 in Calder v. Bull, about the constitutionality of a Connecticut law.

“There are certain vital principles in our free Republican governments, which will determine and over-rule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty, or private property, for the protection whereof the government was established. An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority.”

Chase’s distinction between an act of government and a law defines an inherent quality in the latter. It is not enough that a particular statute was adopted by a properly constituted governmental entity in accordance with prescribed procedure. The statute’s substance must meet the standard of a “good” law. Government can bind people to obedience to its directives in two ways. One is through the law’s moral legitimacy, in that it promotes human flourishing and does not conflict with those natural rights. The other is through sheer power of enforcement. The former is stable. The latter is the path to suffering, discontent, and revolution, as set out in the Declaration’s list of grievances against King George.

The natural rights framework of external ethical limits on law builds on a long Western tradition of a universal higher moral law that obligates human lawmakers. Norms for judging a human law must exist outside the structure of that human law itself. The older tradition, going back to ancient Greek and Roman philosophers, conceptualized an order based on law, within which physical and metaphysical forces operated predictably and constantly. Laws imply a lawmaker. As a result, expositors of this approach always assumed a connection between natural law and some divine or morally perfect eternal existence.

There is, however, a difference, in that natural rights metaphysics focuses not on a classic universal order of creation of which humans and the moral laws to which they respond through their reason are a part. Rather, natural rights are inherent in the sovereignty of personhood of each adult derived from existence in a hypothesized state of nature. Some of those natural rights are surrendered as individuals choose to leave that state of nature and join a social compact to form a political society. Others, among them the rights listed in the Declaration, are retained even upon entry into political society.

In the version of John Locke and subsequent expositors of Lockean political philosophy, the decision to enter into such a social compact is made out of rational self-interest to gain better protection of one’s property in person and estate. The decision is made by free will consenting to be governed. Although Plato had written much earlier about government formed by such consent, the concept was insignificant in his work on the best government. It was the influence of the Renaissance and the secular ramifications of the Protestant Reformation that shifted the focus from humans as part of a universal order governed by divine reason and intelligible through our reason, to humans at the center of everything and controlling their destiny through their wills. The philosophic shift to a focus on rational self-interest as the ethical foundation of the state matured in the Age of Reason and the Enlightenment of the 17th and 18th centuries, respectively.

Yet even as the metaphysical cosmology of a divinely-directed order was challenged, there remained a significant problem. Where do these rights originate? Why do humans have rights at all, while horses, rhubarb, and iron ore did not? Why are some rights “unalienable”? Which rights? Some social contract theorists veered close to severing the entire matter from its ancient connection to divine morality. Thomas Hobbes’s version of the social contract laid out in Leviathan, a work best considered as an apologia of rational totalitarianism and glorification of the absolute State, is a prime example. The German philosopher Samuel Pufendorf, writing in the late 17th century, studied Hobbes. He was less anticlerical and less militant than Hobbes, but still deified the State by establishing it as a “moral person” charged with the ordering of rights and duties. His work became a source of legitimacy for European “enlightened despots” in the 18th century.

But old concepts die hard, especially if they reflect crucial foundational considerations. Locke quite overtly connected his theory of rights to God. Near the beginning of The Second Treatise of Government, Locke defined man’s liberty in his state of nature as governed by a law of nature that none may harm another “in his life, health, liberty, or possessions.” Why not? Because “men being the workmanship of one omnipotent and infinitely wise Maker—all the servants of one sovereign master, sent into the world by his order, and about his business—they are his property whose workmanship they are, made to last during his, not another’s pleasure;…” Because of that essential equality, “there cannot be supposed any such subordination that may authorize us to destroy one another.” Neither may anyone, “unless it be to do justice to an offender, take away or impair the life, or what tends to the preservation of the life, the liberty, health, limb or goods of another.”

The connection to God as Creator is as fundamental to the existence of inherent, natural rights in humans and the correlative duties owed to others as it is to the existence of a universal moral order within which humans live and which is the source of their duties and rights. Moreover, recognizing this relationship and the existence and unalienability of these basic rights is an exercise of reason itself. Hence, these are self-evident Truths to any rational being and need no further proof for Locke, Jefferson, or the Americans of the Founding Era more generally.

There are problems with this reasoning. It depends on assumptions that some may not share, such as a belief in the existence of God. Some may scoff at the idea of a pre-political “state of nature” as either an anthropological fact or even an appropriate political construct. Less intellectually rigorous individuals may get lost by its hyper-rationalism.

Certainly, there has been no shortage of critics. In Candide, the French philosopher and satiric writer Voltaire mocked the Enlightenment’s faith in reason and the propensity of his academic contemporaries to construct idealized systems for the progress of humanity based on those writers’ conception of self-evident truths in turn based on reason. The Scottish parliamentarian Edmund Burke, representing the views of many conservatives, reacted against the version of natural rights in the French Declaration of Rights as revolutionary and as delusional about the “monstrous fiction” of equality when viewed thorough the experience of “men destined to travel in the obscure walk of laborious life.”

Liberal utilitarians reacted against the lack of concreteness of the doctrine. The English philosopher Jeremy Bentham derided it as “nonsense on stilts.” He described such rights as ambiguous and not empirically verifiable. He asserted that rights can only come from human law, not from “imaginary” natural law. Thus, to call “liberty” and such concepts natural “rights” was a perversion of language to Bentham. The idea that humans might possess rights beyond the control of human law was anarchic and directed “to excite and keep up a spirit of resistance to all laws—-a spirit of insurrection against all governments.”

Romanticism in the 19th century and its resultant European nationalism, especially in Germany, turned away from the Enlightenment’s optimistic universalism and refocused rights and law through a historical lens, the peculiar history and ancient customs of each national community. The Anglo-American movement of legal positivism taught that rights were the result of human law, and that the only criterion for law was that it was the command of a political sovereign. Thomas Hobbes would have approved. The Progressives of the 20th century reduced the notion of law to utilitarian legislation or administrative regulation, and characterized rights as whatever such legislation or regulation permitted. Formerly, such grants would have been described as “privileges.”

The current approach continues to retreat from the Founders’ self-evident Truths about the relationship among humans, their Creator, and their unalienable rights. All over the Western World, there is a trend away from the traditionally dominant view of God directly involved in human flourishing. The deification of the State continues.  With a few unorthodox exceptions, rights today are not viewed as something with which each individual is inherently endowed. Rather, rights increasingly are claimed to belong to certain groups, with a manichaean division of humanity into oppressors and victims, which reflects the Marxist origins of the approach. Unlike the economic classification of traditional Marxism, today’s groups are defined by characteristics of physical or psychological identity.

Rights today are those activities which the community or some elected or merely appointed official is willing to let people undertake. Rights fundamental to human vitality as social creatures, such as the right to interpersonal association and the liberty of moving about, are curtailed or prohibited by stoking fear and panic over contrived emergencies earlier generations would have scoffed at. At best, today we exercise rights at the sufferance of a majority of the community. We have none inherently, because everything is based on human will and consent. Today’s human rights declarations are simply lists promulgated by functionaries of, for example, the United Nations. The drafters of its Declaration of Human Rights consciously refused to include Jeffersonian language about the nature and source of rights in the document. One might be excused for being unimpressed by such lists overseen by a council composed of China, Cuba, Eritrea, and other habitual violators of essential human rights. What one human lawmaker can legitimately grant, a subsequent one can legitimately rescind. Before their War of Independence, Americans pointed to the Magna Carta of 1215 as a source of their ancient rights which the British government was said to be violating. But that tactic fell out of favor when it was discovered that the document repeatedly said that the king was “granting” those rights, not that people possessed them inherently.

Finally, there are today no Truths with a capital “T,” self-evident or otherwise, except, perhaps, an unassailable Truth that there are no Truths. In the past, skeptics claimed that our minds and reason are not sufficiently incisive to discern such Truths, and that, therefore, the best we can humbly do is to make utilitarian decisions on what is perceptible to us and appears to be the best result for our society at the time. These are truths with a small “t,” which can claim no inherent superiority over another society’s truths.

Today, following radical “critical studies” theory, “truth” is deemed a narrative imposed by oppressors to perpetuate power relations. In short, there simply is no Truth. Everyone can create his or her own truth. At the same time, in an ironic twist, no one (at least not those denounced as oppressors) may disagree or may challenge another’s truth, no matter how absurd such “truth” might appear to an observer. Not only may one not say that the emperor has no clothes. One must profess that the emperor is truly wearing clothes if he identifies his naked body as clothed. Who can really know? There is no “right” answer, because there is no objective reality. Plato weeps.

The result of such extreme subjectivism is the chaos it creates in society. To achieve a fulfilled life that balances both parts of human nature, the unique aspects which shape each individual and the character of humans as social creatures, people seek order. That is why revolutions always end, and Maoist plans for “permanent revolution” are merely dreams, albeit nightmarish ones. But when there is no inherent right or wrong, just competing random perceptions with no hope of shared objective reality, order comes about through the unrestrained exercise of power.

However, no government claims to act simply on the basis of raw power. The reason is that humans also have an innate attraction to ethics, although the extent of such innate moral sentiments has long been a topic of debate. Therefore, an ethical basis for government is quickly put forth, a justification for the duty to obey society’s rules. In the past, the ruler’s legitimacy might simply have been based on a claim that he is the embodiment of a divine entity, as was the case in many non-Western cultures. Today, “oppression theory” seeks to vest political legitimacy in the actions of those or which benefit those who are anointed the oppressed and to divest it from those stigmatized as the oppressors.

The contribution of Western political philosophy has been to desanctify the ruler, first by bringing him down to the rest of the community within a broader order governed by a universal moral law created and administered by God. The price for his rule was that he must not transgress against that moral law, which sought to protect the community from arbitrary exercises of power contrary to human flourishing. Though the conceptual structure later was secularized and redefined on the basis of rule by popular consent, the ruler still must not transgress against certain individual rights essential to humans and their flourishing. Those rights, too, are universal, and arise out of the universal moral law created by God.

The very longevity of such basic assumptions about the relationship among individuals, their rights, the rulers, the moral law, and God attests to their conformity with human nature and their connection to human flourishing. That longevity is evidence of their Truth. Indeed, it may be said, perhaps with some embellishment, that such Truths are self-evident. The words of the Declaration of Independence are expressions of optimism and hope. They will prove to be more significant and will outlast the current depressing fads of sanctifying or demonizing persons or actions based on arbitrary group identity, decoupling law and political action from ethical standards founded in a higher order, and rejecting the existence of an objective reality.

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

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Principle of Foreign Policy Based on a Standard of Freedom and Independence

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Guest Essayist: Chris Burkett
First page of Thomas Paine's pamphlet, The American Crisis, first edition, 1776.

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

Thomas Paine, in The American Crisis, December 19, 1776, Pamphlet 1, in his speech on “These are the times that try men’s souls” – not quitting in their fight for independence, writing how tyranny is not easily conquered, “Britain, with an army to enforce her tyranny, has declared that she has a right (not only to tax) but “to bind us in all cases whatsoever.”

The same principles that breathed life into Thomas Paine’s resistance to tyranny and justified the American Revolution also formed the basis of the American sense of justice in foreign policy after 1776. The American founders believed that the guides derived from the principles of the Declaration of Independence would better enable them to formulate policies that would satisfy the demands of interest and justice – that is, that would do justice to our own citizens by securing their rights, but would also do justice to foreign people by respecting their independence. In essays #17 and #18 we saw that, according to the principles of the American Founding, the American people have a right to domestic sovereignty and political independence; and because government has a moral obligation to secure the rights of its citizens, the government of the United States has a duty to preserve the nation’s political independence. These same principles provided further guides that would help American statesmen do a better job of securing justice for our nation and doing justice to others as well.

American statesmen believed, first of all, that when possible, peaceful means to resolve conflicts with other nations should be preferred. The founders practiced the doctrine of “peaceful appeals when possible” in the American Revolution itself, by making every possible appeal to the King for a peaceful resolution to the conflict before resigning themselves to an appeal to heaven. The manner in which Americans came to declare the British to be not only a foreign people but enemies was a long process involving many attempts to reconcile differences peacefully. After the “long train of abuses” detailed in the list of grievances against the British, for example, the Declaration of Independence emphasized that “in every stage of these oppressions we have petitioned for redress in the most humble terms: Our repeated petitions have been answered only by repeated injury.” In 1775 the Continental Congress had issued the “Olive Branch Petition” to King George III in 1775 in a last effort to persuade him to come to his senses, stop further bloodshed, and prevent the escalation of hostilities.[1] The appeal to the King was unanswered, and so the Americans were forced to make the “Appeal to Heaven” through a resort to arms and, eventually, by declaring independence.

Second, Founding-era statesmen believed that the United States should respect the equal right of other nations to political independence as much as possible. The right to political independence, derived from the fundamental “Laws of Nature and of Nature’s God,” is a universal right, not an exclusive right of the people of the United States. This right to political independence, therefore, also means that the United States should respect the political independence and domestic sovereignty of all other nations as much as our own security will permit. Just as we expect other nations to respect the independence and domestic sovereignty of the United States as much as their sense of security will allow, we are also obligated to respect the independence of all peoples and their right to consent to their own choice of government, laws, and policies as much as our own sense of security will allow. We see this axiom expressed very clearly in James Kent’s Commentaries on American Law in 1826:

Nations are equal in respect to each other. . . . [T]his perfect equality, and entire independence of all distinct states, is a fundamental principle of public law. It is a necessary consequence of this equality, that each nation has a right to govern itself as it may think proper, and no one nation is entitled to dictate a form of government, or religion, or a course of internal policy, to another.[2]

The American founders believed that by following these two fundamental principles – preferring peaceful measures and respecting the independence and sovereignty of other nations, as much as possible – the United States would avoid giving just cause for war to other nations. This end would also be promoted by performing our engagements, fulfilling treaty obligations, paying debts, and showing little or no favoritism toward particular nations.

We can see these basic principles of American foreign policy thought displayed in many symbolic images. For example, the Gadsden flags popular during the American Revolution portrayed a rattlesnake with the words “Don’t tread on me” on them. This signified America’s willingness, like the rattlesnake, to leave others alone when not threatened; but it also showed the willingness of the United States to strike powerfully and quickly when “meddled with.” This also reflects the claim in the Declaration of Independence that “we hold the rest of mankind, Enemies in War, in Peace Friends.”

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

 

[1] Continental Congress, “The Last Address of the People of America to the King,” 5-8 July 1775.

[2] James Kent, Commentaries on American Law, 1826.

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Principle of Peace Through Strength

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Guest Essayist: Robert Brescia
George Washington, presided over the first Continental Congress; Commander-in-Chief of the Continental Army during the American Revolutionary War; first President of the United States; painting by Gilbert Stuart, 1796.

 

Essay Read by Constituting America Founder, Actress Janine Turner

 

“To be prepared for war is one of the most effectual means of preserving peace.” —George Washington

“It is a principle incorporated into the settled policy of America, that as peace is better than war, war is better than tribute.” —James Madison

“We know only too well that war comes not when the forces of freedom are strong, but when they are weak. It is then that tyrants are tempted.” —Ronald Reagan

Introduction

Peace through strength (PTS) – this is a recurring theme throughout the history of our great nation. It’s as old as ancient civilizations such as China’s Sun Tzu (author of The Art of War), and as new as today. I’ve heard people assert that the United States should only increase its military capabilities if it is attacked somewhere in the world. Others say that we shouldn’t augment our defensive or offensive strengths unless we are attacked on our homeland. That’s a relatively shortsighted strategy – the world is way too small for that to be effective. While some believe that you should only focus on military strength upon being attacked, either on the world stage or on our own turf, it is too late at that time to assemble and employ a suitable riposte.

Enter the strategy of peace through strength. It has been supported by several of our Founding Fathers and our U.S. Presidents from 1789 to today. The basic premise of PTS is that if the United States builds a military capability so great, with an extraordinary over-match ratio to potential attackers, that no nation on earth would dare to attack us because they know it would bring their swift and complete destruction.

By virtue of our PTS strategy, peace in our homeland would be achieved and maintained. If one accepts such a premise, then the next logical question might be, “to what extent do we need to arm ourselves to be that deterrent that we seek?” That would entail a constant comparative exercise, accomplished by thinktanks and large consultancies who monitor the military capacities of world nations.

A second, related question could be, “does this strategy only include conventional armaments or would it also include nuclear?” A third question might also be, “have we any empirical evidence that a PTS strategy was or is successful?” I might add a fourth question, but it has no matter-of-fact answer and that would be, “would super-arming our nation constitute a temptation for present or future political leaders to use that power for much the same reason that President Clinton claimed during his impeachment – “because I could.”

Historical Tie-in of Peace Through Strength

PTS is sometimes confused or interleaved with RealPolitik. RealPolitik is the result of a collision between Enlightenment ideas that our Founders espoused and the fast development of nation-states in the second half of the 19th century. On the one hand, we had political leaders who espoused ideologies and liberal type policies while, on the other hand, countries began the empirical quests for more power and domination, seeking colonies to aggrandize their positions on the word stage.

RealPolitik is a result of that strategic conflict and it is occasionally very tempting to associate PTS within it. The next evolution of these ideas extended RealPolitik and PTS into political realism. This happened when world nations began practicing international relations to try and justify their actions. We saw two generally oppositional ideas emerge: 1) policy actions and international relations are primarily concerned with the extension and growth of power and, 2) policy actions and international relations are the manifestation of a desire for national survival.

Summary and Conclusion

While not a subtle hint or a visible charge by our Founding Fathers for us today, PTS captures the American spirit of wanting to be protected against the bad will and actions of other nations. However, the reality of politics and national priorities in our times is such that we may not have the luxury of arming ourselves to the teeth, not to mention continuously updating our military arsenals with the latest technologies. We have nondiscretionary social entitlements such as Medicare and Social Security that must be paid up front. We also have a massive national debt that our politicians can’t seem to get a hold of. American politicians seem to have difficulty fending off involvement in foreign struggles. Consider President Bush’s war waged in Iraq because of his desire to reestablish U.S. world leadership after September 11, 2001. One close adviser revealed that the thinking behind the war was to show: “We are able and willing to strike at someone. That sends a very powerful message.” Consider President Obama’s co-invasion as well with NATO of Libya in 2011 – the stated rationale was to support Libyan rebels but then Secretary of Defense Robert Gates said, “Publicly, ‘the fiction was maintained’ that the goal was limited to disabling Colonel Qaddafi’s command and control. Given that decapitation strikes against Qaddafi were employed early and often, there almost certainly was a decision by the civilian heads of government of the NATO coalition to “take him out” from the very beginning of the intervention.”

My own conclusion is that the Founding Fathers had a period-appropriate notion of PTS, contextually supportive of the big ideas behind it, and resplendent with hope and faith for future peace. There are other strengths, however, that the United States possesses and nurtures which are undeniably elements of national prowess. These include our homeland values of courage, benevolence, individualism, economic opportunity, and generosity. These and other American values continue to attract many to our shores. Along with military superiority, they make us strong and resilient. That’s a certain broadening of the word strength in the term peace through strength.

Bob Brescia, Ed.D. of Odessa is a Teacher of Record for Ector County Independent School District, and an adjunct professor for Wilmington University. He previously served as the Executive Director for The John Ben Shepperd Public Leadership Institute and served as the Head of School for Saint Joseph Academy in Brownsville. He is a board member at Constituting America in Dallas, a member of the Odessa Information & Discussion Group, and an Advisory Board member for Odessa’s Southwest Heritage Credit Union. He is the former chairman of Basin PBS television and the American Red Cross of the Permian Basin and former president of Rotary International – Greater Odessa. He is also a monthly columnist for the American Society for Public Administration in Washington, DC. Brescia has twenty-seven years of military service as a highly decorated Airborne Ranger Cavalry soldier, NCO, and commissioned officer in the United States Army. He received a Bachelor of Arts (summa cum laude) in Civil Government from Norwich University, a Master of Science in Computer Information Systems and a Master of Arts in International Relations from Boston University – European Division, and a Doctor of Education in Executive Leadership with distinction from The George Washington University.

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Preventing Loss of Independence to Foreign or Global Governments by Upholding the Principle of America’s National Sovereignty

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Guest Essayist: Chris Burkett
Declaration of Independence Signer James Wilson, a Framer of the U.S. Constitution, Supreme Court Justice appointed by George Washington, and author of Lectures on Law.

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

The previous essay, #17, showed that, according to the principles of the Declaration of Independence, the people of the United States of America have a right, from the “Laws of Nature and of Nature’s God,” to establish their independence and thereby their national sovereignty. Those same principles, however, that establish the right of a people to independence and sovereignty, also impose a duty upon government to protect and maintain that independence and sovereignty once established. This essay will focus further on the principle of America’s national sovereignty upon preventing loss of independence to foreign or global governments acting as with binding authority in attempts to undermine the United States.

The duty of government to maintain national sovereignty and political independence arises from two arguments of the Declaration of Independence regarding the very nature and purpose of government. First, the Declaration of Independence asserts that it is the equal right of every people, sharing the same political principles, to form through consent a government laid on such foundations “as to them shall seem most likely to affect their safety and happiness.” The Declaration of Independence also asserts that “governments are established among men” for the purpose of protecting the natural rights of its citizens. These principles therefore impose a duty upon our government, because independence is necessary in order for us as a people to determine what must be done for national security, which is, in turn, necessary in order for our citizens to peacefully enjoy their natural rights in the pursuit of happiness. A nation must maintain its independence, therefore, free from the political control of any other nation, in order to remain master of its own fortunes. Only when it has such liberty can a nation freely and prudently determine for itself what is necessary for the preservation, security, and happiness of its own people.

The importance of maintaining political independence can also be seen in the writings of American Founder James Wilson, signer of the Declaration of Independence, framer of the United States Constitution, and one of the original Supreme Court Justices appointed by President Washington. In his important work Lectures on Law, Wilson clearly echoed the Declaration of Independence on the right and duty of maintaining independence:

The law of nations, properly so called, is the law of states and sovereigns, obligatory upon them in the same manner, and for the same reasons, as the law of nature is obligatory upon individuals . . . The same principles, which evince the right of a nation to do everything, which it lawfully may, for the preservation of itself and of its members, evince its right, also, to avoid and prevent, as much as it lawfully may, everything which would load it with injuries, or threaten it with danger.[1]

The right and duty of the United States to defend its national sovereignty was also articulated by American courts well into the nineteenth century. In Schooner Exchange v. McFaddon (1812), for example, Chief Justice Marshall wrote that “[t]he world [is] composed of distinct sovereignties, possessing equal rights and equal independence.” In light of those equal rights, Marshall continued:

The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate source. [2]

In its larger sense, political independence especially means the liberty that a people or nation has by right to decide when to engage in war or continue in peace. George Washington understood well that to have full freedom regarding such decisions, the United States should have as little political connection with other nations as possible, by which they might have an undue influence in determining what actions we might – or must – take. This especially meant that we should avoid as much as possible engaging in permanent political or military alliances with other nations – a lesson the United States learned through the controversy over the French Treaties during the French Revolution in the 1790s. During this time, Americans were passionately divided over whether the treaties with the French (agreed to by Congress during the American Revolution) obliged the United States to assist France in its wars against other European nations during the French Revolution. The issue nearly embroiled the United States in the French Revolution against its will and contrary to the desire of Congress.

Reflecting on this challenge to American political independence in his Farewell Address, Washington wrote, “The Nation which indulges towards another an habitual hatred, or an habitual fondness, is in some degree a slave. It is a slave to its animosity or to its affection, either of which is sufficient to lead it astray from its duty and its interest.” The peace and sometimes the liberty of nations, Washington wrote, had frequently been the victims of such foreign attachments. This is especially so when “the policy and will of one country, are subjected to the policy and will of another” through permanent alliances. Washington understood, therefore, that having “command of one’s own fortunes” could hardly apply to a slave any more than to a people who “interweave [their] destiny with that of any part of Europe, [or] entangle [their] peace and prosperity in the toils of European Ambition, Rivalship, Interest, Humour or Caprice.” Only when a people remains politically independent can it be free to select the means most conducive to its own safety and happiness; or, as Washington wrote, free to “choose peace or war, as our interest, guided by justice, shall counsel.”[3]

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

[1] James Wilson, Lectures on Law, in Collected Works of James Wilson, edited by Kermit L. Hall and Mark David Hall, Volume I (Indianapolis: Liberty Fund, 2007), 529 and 536.

[2] Schooner Exchange v. McFaddon (7 Cranch 116 1812), The Founders’ Constitution, http://press-pubs.uchicago.edu/founders/documents/a1_8_10s7.html (accessed January 5, 2010)(emphasis added).

[3] Washington, Farewell Address, 1796.

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Principle of America’s National Sovereignty

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Guest Essayist: Chris Burkett
2nd Continental Congress Vote on Declaration of Independence by Robert Edge Pine

Essay Read By Constituting America Founder Actress Janine Turner

 

 

“That these are our grievances which we have thus laid before his majesty, with that freedom of language and sentiment which becomes a free people claiming their rights, as derived from the laws of nature, and not as the gift of their chief magistrate: Let those flatter who fear; it is not an American art. To give praise which is not due might be well from the venal, but would ill beseem those who are asserting the rights of human nature. They know, and will therefore say, that kings are the servants, not the proprietors of the people.” – Thomas Jefferson in his pamphlet, “A Summary View of the Rights of British America” July 1774, Williamsburg, Virginia.

This essay by Thomas Jefferson, written two years before Congress would declare American independence, contains many of the same arguments that would eventually justify the separation of Great Britain in 1776. Here Jefferson speaks of the natural rights of “a free people,” and calls the King a “servant” rather than the “proprietor” (or owner) of the people. As essay #9 of this study showed, Americans had been developing the idea that those who govern must do so for the good of the people, rather than use their subjects for their own good, and Jefferson’s argument in “A Summary View” echoes that sentiment.

It is also important to note that the quote from Thomas Jefferson’s “Summary View of the Rights of British America” reveals that the American Revolution involved more than the legal separation of the United States from Great Britain. It was at its core an ideological movement that was motivated by a political philosophy shared in common not only by the prominent movers of events but by Americans in general. This philosophy, commonly referred to as social compact theory, led to and supported the principles contained in the Declaration of Independence, which in turn expressed the principles upon which American national sovereignty and independence are justified.

The Declaration of Independence begins and ends with statements regarding the right of a people to establish and maintain their national sovereignty. The Declaration asserts that “one people” are entitled to assume a “separate” station from all others, and they derive this right – a right that is shared equally by all peoples – from “the Laws of Nature and of Nature’s God.” It begins with the claim that the “laws of Nature and Nature’s God” entitle “one people,” when necessary, to “dissolve the political bands which have connected them with another,” and “to assume among the powers of the earth” a “separate and equal station.” It ends with the claim that as “free and independent” states, the United States have dissolved “all political connection between them and the State of Great Britain,” and therefore “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.”

The opening and closing paragraphs of the Declaration of Independence, therefore, have this principle in common – for a people or nation to be “free and independent,” it must totally dissolve “all political connection between them” and other nations. The immediate purpose of the Declaration of Independence was to formalize our separation from Great Britain; but it also expressed a fundamental principle – to be truly free and independent (i.e., sovereign over its own affairs) the United States ought to have no political connection with any other nation.

Like individual liberty, national independence is necessary to allow one people, through their government, to decide for themselves how best to secure and exercise their individual liberty. The first paragraph of the Declaration of Independence therefore transposed the principle of individual liberty to apply to whole peoples and nations. Nations are described as having the right, by the “Laws of Nature and of Nature’s God,” to an equal station as “free and independent” states. And individuals are described as having the equal unalienable or natural right to liberty. The Declaration of Independence teaches us, therefore, that there is an inseparable connection between individual liberty and political independence – or what one might call “national liberty” – and it establishes this fundamental relationship in its very first paragraph.

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

 

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Principle of Citizenship and Love of Country

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Guest Essayist: Tom Hand
During the War of 1812, the American Flag over Fort McHenry inspired Francis Scott Key to write what eventually became America’s National Anthem, the Star Spangled Banner. The flag hangs in the Smithsonian’s National Museum of American History.

Essay Read By Constituting America Founder, Actress Janine Turner

 

Citizenship goes well beyond being a citizen. According to the Fourteenth Amendment, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” But it does not require citizens to do anything to maintain it. It confers a right but does not demand a responsibility.

Practicing good citizenship, doing things such as voting, serving your country, following the law of the land, and getting involved in your local community is that unstated, corresponding responsibility. It is that one overarching shared responsibility that gives people common ground and brings them and binds them together and makes cities and towns, rich and poor, men and women, and all races one nation.

So how does a nation inspire its citizens to voluntarily practice good citizenship? How does a nation get its people to do something that takes effort but is not required? What does it take to move citizens beyond “self” and towards the “whole,” beyond “me” and towards “us?”

It is really quite simple; it is love of country. It is human nature for one to treat better and care for more thoughtfully that which they love. It is no different with citizenship. For citizens of the United States, those that love the country best will serve it best. It was certainly the case during our founding era.

Amor patriae is Latin for love of country. It is a noble concept, but what does it mean and how is it manifested? Is it done by flying a flag from your front porch on Independence Day or singing a heartfelt Star Spangled Banner at a ballgame or cheering as America wins yet another gold medal at the Olympics? It is all that but so much more.

Men more eloquent than I have discussed it through the ages. Seneca, the great Roman philosopher, stated “Men love their country, not because it is great, but because it is their own.” Seneca is correct. In many facets of life, we justly love that which is ours, including and even especially, our country. This love of country is not determined by an individual’s wealth but runs deeper than that and transcends material property and wages.

Love of country requires an unselfishness that drives men to reach for a higher place and to love something greater than oneself as Katharine Lee Bates described in America the Beautiful.

O beautiful for heroes proved

In liberating strife,

Who more than self their country loved,

And mercy more than life!

Love of country amongst a people leads to a unity of purpose that is critical to a nation’s success. As George Washington noted in his Farewell Address, “The Unity of Government which constitutes you one people is also now dear to you. It is justly so; for it is a main Pillar in the Edifice of your real independence, the support of your tranquility at home; your peace abroad; of your safety; of your prosperity; of that very Liberty which you so highly prize.” Washington continues that we must be ever on our guard and “watching its preservation with jealous anxiety…and indignantly frowning upon the first dawning of every attempt to alienate any portion of our Country from the rest.”

Love of country is inspirational and creates pride deep within the soul for one’s homeland and those without this feeling are to be pitied. As Walter Scott lamented for such a man in The Lay of the Last Minstrel.

Breathes there the man, with soul so dead,

Who never to himself has said,

This is my own, my native land!

Love of country is a beautiful thing, but it can be a terrible beauty for it compels us forward down a path we may otherwise lack the courage to take as described in the sad Irish ballad The Patriot Game.

For the love of one’s country is a terrible thing.

It banishes fear with the speed of a flame,

And makes us all part of the Patriot Game.

Love of country can fade from the forefront of our minds and the United States, and its countless blessings, can be taken for granted. But sad is the man who would lose his country as Edward Everrett revealed in his short story The Man Without a Country. This poignant tale tells of Philip Nolan, a young American officer turned traitor who wishes to be rid of his country and is granted his wish.

Near the end of his life, Nolan, who has yearned for his wish to be reversed, scolds a young sailor for expressing disgust with the United States: “Remember boy, that behind all these men…behind officer and government, and people even, there is the Country Herself, your Country and that you belong to her as you belong to your own mother. Stand by her boy as you would stand by your mother.”

Love of country was the single greatest influence upon our Founding Fathers as they formed our nation and our Constitution. But their love of country was not something they sought, it developed freely within each Patriot and love of country inspired each in his own way.

Love of country propelled George Rogers Clark down the Ohio to Kaskaskia and then across the frozen wilderness to capture Fort Sackville and Vincennes in 1779, securing the Ohio Valley for America.

Love of country led Daniel Morgan to gather a company of stalwart Virginia riflemen and lead them to Boston soon after the “shot heard round the world” was fired at Lexington and Concord and continue on to his memorable victory at Cowpens.

Love of country caused Nathanael Greene to leave his successful merchant business and Caty and the children and take up arms for a righteous cause and drive Cornwallis from Georgia and the Carolinas.

Love of country influenced John Adams, the Puritan Patriot from Boston, to forego his prosperous law practice and travel to Philadelphia and the First Continental Congress in 1774 to start the march towards nationhood, stating “Sink or swim, live or die, survive or perish, I am with my country…You may depend upon it.”

And it was love of country that inspired George Washington, one of the wealthiest men in the colonies and arguably the man with the most to lose, to risk it all to lead a fledgling army in a war that seemed unwinnable. Later, when the nation he had helped bring forth was struggling under the Articles of Confederation, Washington again came to her aid to lead the Constitutional Convention and guide us as we learned how to govern in a Constitutional republic. The Indispensable Man did all this for love of country.

So why should love of country matter to us today? We must recognize that it birthed our country, it grew our country, and, without it, we could lose our country.

Tom Hand is creator and publisher of Americana Corner. Tom is a West Point graduate, and serves on the board of trustees for the American Battlefield Trust as well as the National Council for the National Park Foundation.

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A Founding Built Against Unbridled Power: Principle of Civic Duty to Rein In Overreaching Government

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Guest Essayist: Scot Faulkner
Two Treatises of Government by John Locke, first edition published in 1689, title page dated 1690.

Essay Read By Constituting America Founder, Actress Janine Turner

 

“They tell us, sir, that we are weak; unable to cope with so formidable an adversary. But when shall we be stronger? Will it be the next week, or the next year? Will it be when we are totally disarmed, and when a British guard shall be stationed in every house?” – Patrick Henry, in a speech delivered at St. Johns Church, Richmond, Virginia, March 23, 1775

When and how should citizens confront abuses of power by their government?

This is a fundamental question that has shaped political discourse for centuries.

Patrick Henry, and the other colonial leaders who galvanized opposition to the predations of George III, drew upon English legal precedents and Enlightenment philosophy. They built their rebellion against tyrannical overreach on foundations laid by their English ancestors.

There has always been conflict between those who desire unbridled power and those they govern. Often this conflict was settled through force of arms. On June 15, 1215, it was settled by force of law.

Rebelling English nobles forced King John to sign a “Great Charter of Freedoms,” now known as the Magna Carta. The Charter became the basis for English Common Law and the laws of most English-speaking nations, particularly the United States.

While the Magna Carta focused on individual rights and the legal system (such as trial by jury), Clause 61 empowered citizens to rein in overreaching government. It created a Council of 25 barons to monitor and enforce King John’s compliance with the Magna Carta. This included controlling feudal payments to the Crown, and by implication how the Crown spent “public” funds and governed. Clause 61 included real sanctions: If John did not comply with the provisions of the Magna Carta, “the 25 barons were empowered to seize the King’s castles and lands until, in their judgement, amends had been made.”

King John colluded with the Pope to undermine the Magna Carta, but his successors reissued it and it became a formal part of English law.

During the 13th through 15th centuries, Magna Carta was reconfirmed at least 32 times. The first item of parliamentary business was a public reading and reaffirmation of the Magna Carta.

The Stuart line of kings challenged the four-hundred-year Magna Carta balance of power to their peril. King Charles I asserted he would not be reined in by Parliament. This led to civil war and his beheading in 1649. During the post-Civil War Restoration, Charles II adopted a more passive approach to governing. However, James II ignored his elder brother’s compliance with Parliamentary restrictions which led to his being overthrown during the “Glorious Revolution” of 1688.

Parliamentary ascendancy, and ultimate permanent dominance under a “Constitutional Monarchy,” was buttressed by philosophical publications. These writings gave broader context to how power must be reined in and how it should be done under law.

In 1680, Henry Care published English Liberties. It established individual rights as bestowed at birth, not by government. Care formally asserts,

“each man having a fixed Fundamental Right born with him as to the Freedom of his Person and Property in his Estate, which he cannot be deprived of, but either by his consent, or some Crime for which the Law has Imposed such a Penalty as Forfeiture.”

He describes the balance of a reined-in government, “qualified Monarchy, where the King is vested with prerogatives sufficient to support Majesty; and restrained from power of doing himself and his people harm.”

Care supported his philosophical doctrine with a compendium of foundational political documents. He made the Magna Carta central to history and to the contemporary legitimacy of individual freedom and control of government overreach. English Liberties became very popular in British reform (Whig) circles and widely read among leaders in the American colonies.

Even more popular among colonial thinkers and activists was John Locke’s Two Treatises of Government published in 1689.

Locke’s Second Treatise describes the importance of a civilized society based on natural, God given, rights. It supports the social contract theory of the governed consenting to limited government in exchange for a secure and stable environment in which individual activity and commerce can thrive. It became the primary conceptual work defining traditional 18th and 19th Century Liberalism.

Locke’s Second Treatise was frequently cited in Colonial debates about George III’s taxes and other punitive measures that comprised the King’s overreach and over reaction to colonial freedom.

Locke describes the balance of power between an executive (or monarchy) which is a “Power always in being that must perpetually execute the law” and the legislature which is the “supreme power of the Common wealth…governments are charged by the consent of the individual, i.e. the consent of the majority, giving it either by themselves, or their representatives chosen by them.”

Locke promotes the proposition that a full economic system could exist within the “state of nature.” Property predates the existence of government. Society should be dedicated to the protection of property. He expanded on Care’s “social contract” theory and explains how the “consent of the governed” may be withdrawn when power is abused, thus serving to rein-in government overreach.

The philosophy of Two Treatises is echoed throughout the Declaration of Independence. Thomas Jefferson wrote: “Bacon, Locke, and Newton – I consider them as the three greatest men that have ever lived, without any exception, and as having laid the foundation of those superstructures which have been raised in the Physical & Moral sciences.”

The foundations of the Magna Carta, English Common Law, and the writings of Care and Locke birthed our nation. They guide and inspire citizen oversight and empowerment to this day.

Scot Faulkner is Vice President of the George Washington Institute of Living Ethics at Shepherd University. He was the Chief Administrative Officer of the U.S. House of Representatives. Earlier, he served on the White House staff. Faulkner provides political commentary for ABC News Australia, Newsmax, and CitizenOversight. He earned a Master’s in Public Administration from American University, and a BA in Government & History from Lawrence University, with studies in comparative government at the London School of Economics and Georgetown University.

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Principle of Civic Duty to Petition the Government for a Redress of Grievances

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Guest Essayist: Andrew Langer

Essay Read By Constituting America Founder, Actress Janine Turner

 

“Congress shall make no law… abridging the freedom… to petition the Government for a redress of grievances.” – United States Constitution, Amendment 1

A key element in America’s quest for independence was the ire that certain colonists felt at being taxed without representation (an overly simplified view of decades of frustration at a variety of policies imposed by the British Crown on Colonial America without the consent of the citizens of the colonies). Part and parcel of this was the difficulty the citizens had in presenting those grievances to the crown (or parliament), and the perception that those who did voice concerns or opposition were singled out for punishment by the government.

So as the Constitution was being drafted, and further constraints were being placed on the power of government via the Bill of Rights, the founders included language in the First Amendment ensuring that citizens would retain a right to so petition the government when they were aggrieved—with a corresponding assurance found in the Fifth Amendment, that when such substantive petitioning is made, “due process” is accorded to the petitioner i.e., that a fair and just process is made available to the person or persons petitioning.

When most people consider this, they think about the right of individuals to advocate or otherwise speak their minds before legislators, i.e., to offer their opinions on legislation. But in an era in which policy is increasingly being delegated to the Executive Branch, it is important to examine how this right, or civic duty, is protected within the context of the “administrative” state.

When Congress passes a law, it is then up to the Executive Branch to interpret and enforce that law, to “administer” it, in other words, and thus the “administrative” state. The more vague that law might be (and sometimes not so vague), the greater leeway an agency has to interpret that law.

For example, Congress passes the Clean Water Act in 1972. In that law, they make it illegal to pollute a navigable water of the United States.  Because Congress failed to define words or phrases like “pollute” or “navigable” or “water of the United States,” they left it up to the Executive Branch to define them.

The right to petition then plays a singular role in this. The agency presents its proposal for how to define terms or, more broadly, how they plan on interpreting and enforcing any piece of legislation, and it then opens a process whereby the public can comment on their proposals.

This process is government by a law known as the “Administrative Procedure Act” (APA). The APA was passed by Congress in 1946 in order to standardize the petitioning/commenting process across the federal executive branch. Prior to that point, each agency had the discretion to create its own process, something that could make overly complicated the ability of citizens to exercise their right to petition for redress.

Now, with few exceptions, the process by which someone can “comment” on a “rulemaking” is the same regardless of whether someone is filing that comment with the Occupational Safety and Health Administration (OSHA), the Department of Health and Human Services (HHS) or the Department of the Interior. A “rulemaking” is the standard term whereby an agency goes through the process or creating or amending the regulations that have been created out of congressional legislation. A “comment” is just that, the opinion filed by a person or group regarding that regulatory proposal.

At its most basic level, the process works this way: either Congress passes a new law, or amends a law, or the agency wants to make changes to existing policies, and they announce this in a daily publication called The Federal Register. They offer their proposal in something called a “Notice of Proposed Rulemaking” or, less frequently, an even earlier step called an “Advanced Notice of Proposed Rulemaking,” and tells the public how they can comment on those proposals.

Anyone can file a comment—and it has never been easier to do so.  Most agencies utilize an online portal called Regulations.Gov to both announce proposals and solicit for comments, and comments can be submitted online with a matter of clicks.

It is a system that the founding fathers would have enthusiastically applauded. Though many would have been horrified at the concentration of power in the Executive Branch, the idea that any citizen could, with the touch of a button, voice their substantive concern about a policy proposal would have heartened them at the same time. They just would have been concerned that not more people were aware of this.

As part of the APA, agencies are required to answer such “petitions” (when they are substantive) in the publication of their “final rule” i.e., the finalized regulatory policy—either demonstrating where they have made changes to the proposal in accordance with those substantive comments, or explaining why they didn’t make such changes. Failure to do so opens the regulation to court challenges, on the grounds that the new rule is “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law.”

Even better, the APA doesn’t require that the citizenry wait until the agency makes a regulatory proposal in order to have changes to a rule made. Another aspect of the manifestation of the right to petition for the redress of grievances within the APA is the right to petition a regulatory agency to open up a rulemaking—again, with the agency being required to respond if they decide to not go through a new rulemaking process.

While the APA’s rulemaking process applies to nearly all agencies, agencies within the national security and defense spheres are generally recognized to be exempt, though some will engage in this “notice and comment” process when they have policy changes that they know will be controversial or otherwise of tremendous interest to the public.  Likewise, transactional decisionmaking and contracting are not open to this APA’s process (though citizens always have the right to comment on such issues with those agencies).

What is worth noting is that the deliberative process of the APA can be frustrating, especially to policymakers, and the citizenry needs to be on guard for when agencies attempt to sidestep the APA. Increasingly, agencies are turning to what they claim are quasi-rulemakings—smaller proceedings that these agencies claim are not subject to the full APA notice-and-comment process. These agencies create guidance documents and interpretation letters purporting to carry the full force of regulatory law, but aren’t subject to the full vetting that a rulemaking allows.

The Competitive Enterprise Institute refers to such activity as “regulatory dark matter”—and while in January of 2017 the President created an executive order to substantially rein in regulatory dark matter, the following administration undid that executive order almost immediately upon taking office in 2021.

Thankfully, Congress is becoming ever more aware of the problem of regulatory dark matter, and is working to hold the executive branch accountable.

In the end, given the size and scope of the modern administrative state in the U.S., the notice and comment process under the APA is of vital importance, and emblematic of the enduring importance of the right, or civic duty, to petition our government for a redress of grievances.

Andrew Langer is President of the Institute for Liberty, as well as Chairman and Founder of the Institute for Regulatory Analysis and Engagement. IFL is a non-profit advocacy organization focused on advancing free-market and limited government principles into public policy at all levels. IRAE is a non-profit academic and activist organization whose mission is to examine regulations and regulatory proposals, assess their economic and societal impacts, and offer expert commentary in order to create better public policies. Andrew has been involved in free-market and limited-government causes for more than 25 years, has testified before Congress nearly two dozen times, spoken to audiences across the United States, and has taught at the collegiate level.

A globally-recognized expert on the impact of regulation on business, Andrew is regularly called on to offer innovative solutions to the challenges of squaring public policy priorities with the impact and efficacy of those policies, as well as their unintended consequences. Prior to becoming President of IFL and founding IRAE, he was the principal regulatory affairs lobbyist for the National Federation of Independent Business, the nation’s largest small business association. As President of the Institute for Liberty, he became recognized as an 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.

Andrew has had an extensive career in media—having appeared on television programs around the world. From 2017 to 2021, he hosted a highly-rated weekly program on WBAL NewsRadio 1090 in Baltimore (as well as serving as their principal fill-in host from 2011 until 2021), and has filled in for both nationally-syndicated and satellite radio programs. He also created and hosted several different podcasts—currently hosting Andrew and Jerry Save The World, with long-time colleague, Jerry Rogers.

He holds a Master’s Degree in Public Administration from Troy University and his degree from William & Mary is in International Relations.

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Educating a Free People to Secure the Blessings of Liberty for Future Generations of Americans

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Guest Essayist: Chris Burkett
The New-England Primer, 1764, printed & sold by Benjamin Franklin, Beinecke Rare Book & Manuscript Library, Yale University.https://en.wikipedia.org/wiki/The_New_England_Primer#/media/File:New-England_Primer_Enlarged_printed_and_sold_by_Benjamin_Franklin.jpg

Essay Read By Constituting America Founder, Actress Janine Turner

 


The New England Primer was an educational book, first published in the colonies in the 1690s. For over 100 years, it was used by parents to teach their children to read. Even more than that, the selections of readings – which included plays and poetry – in the primer were meant to give lessons that taught children the importance of morality and virtue. The book was especially popular in New England colonies, where Americans had been enjoying a large degree of political independence from Great Britain and personal freedom in their individual lives. The importance of civic virtue in a republic, as taught by the lessons in the primer, were described by several prominent New Englanders at the time of the American Founding.

Samuel Williams, a professor at Harvard College, wrote about the importance of education in The Natural and Civil History of Vermont in 1794. “Among the customs which are universal among the people, in all parts of the state,” Williams wrote, “one that seems worthy of remark, is, the attention that is paid to the education of children.”[1] Williams continued:

“The aim of the parent, is not so much to have his children acquainted with the liberal arts and sciences; but to have them all taught to read with ease and propriety; to write a plain and legible hand; and to have them acquainted with the rules of arithmetic, so far as shall be necessary to carry on any of the most common and necessary occupations of life.”

In addition to be useful in their daily lives, this education was also meant to shape them into being good citizens.

“All the children are trained up to this kind of knowledge: They are accustomed from their earliest years to read the Holy Scriptures, the periodical publications, newspapers, and political pamphlets; to form some general acquaintance with the laws of their country, the proceedings of the courts of justice, of the general assembly of the state, and of the Congress, &c. Such a kind of education is common and universal in every part of the state.”

This education produces “plain common good sense” as well as “virtue, utility, freedom, and public happiness,” all of which are especially important among citizens in a free society. This view of the purpose of education was also expressed by an anonymous author in a Boston essay titled The Worcester Speculator No. VI in 1787. “If America would flourish as a republic,” he wrote, “she need only attend to the education of her youth. Learning is the palladium of her rights—as this flourishes her greatness will increase.”[2] The author continued:

“[I]n a republican government, learning ought to be universally diffused. Here every citizen has an equal right of election to the chief offices of state. … [E]very one, whether in office or not, ought to become acquainted with the principles of

civil liberty, the constitution of his country, and the rights of mankind in general. Where learning prevails in a community, liberality of sentiment, and zeal for the public good, are the grand characteristics of the people.”

As proven by the effectiveness of The New England Primer, the Worcester Speculator especially emphasized the usefulness of literature for inculcating virtue and morality in students. “If we would maintain our dear bought rights inviolate,” he wrote, “let us diffuse the spirit of literature: Then will self-interest, the governing principle of a savage heart, expand and be transferred into patriotism: Then will each member of the community consider himself as belonging to one common family, whose happiness he will ever be zealous to promote.”

Benjamin Rush of Pennsylvania also wrote about the purpose of education in ways very similar to that of New England. In his A Plan for the Establishment of Public Schools and the Diffusion of Knowledge in Pennsylvania, Rush described the “influence and advantages of learning upon mankind.”[3]

I. It is friendly to religion, inasmuch as it assists in removing prejudice, superstition, and enthusiasm, in promoting just notions of the Deity, and in enlarging our knowledge of his works.

II. It is favorable to liberty. A free government can only exist in an equal diffusion of literature. Without learning, men become savages or barbarians, and where learning is confined to a fewpeople, we always find monarchy, aristocracy, and slavery.

III. It promotes just ideas of laws and government.

Rush was particularly concerned with the effect education – especially through the teaching of history – should have on the citizen in a free republic. “He must watch for the state as if its liberties depended upon his vigilance alone,” Rush wrote, “but he must do this in such a manner as not to defraud his creditors or neglect his family.” Rush continued:

“He must love private life, but he must decline no station, however public or responsible it may be, when called to it by the suffrages of his fellow citizens. … He must love character and have a due sense of injuries, but he must be taught to appeal only to the laws of the state, to defend the one and punish the other. He must love family honor, but he must be taught that neither the rank nor antiquity of his ancestors can command respect without personal merit. … He must be taught to love his fellow creatures in every part of the world, but he must cherish with a more intense and peculiar affection the citizens of Pennsylvania and of the United States.”

The lessons in morality and civic virtue these authors found most important in a free republic were promoted well by the fundamental education students received through The New England Primer well into the eighteenth century.

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

 

[1] Samuel Williams, The Natural and Civil History of Vermont, 1794, available at https://oll.libertyfund.org/title/lutz-american-political-writing-during-the-founding-era-1760-1805-vol-2.

[2] The Worcester Speculator, No. VI, 1787, available at https://oll.libertyfund.org/title/lutz-american-political-writing-during-the-founding-era-1760-1805-vol-1.

[3] Benjamin Rush, A Plan for the Establishment of Public Schools and the Diffusion of Knowledge in Pennsylvania, 1786, available at https://oll.libertyfund.org/title/lutz-american-political-writing-during-the-founding-era-1760-1805-vol-1.

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Civic Virtue and a Free People: Principle of Educating on Ethical, Philosophical, Self-Evident Truths of Good Government

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Guest Essayist: Joerg Knipprath
John Adams, author of “A Defence of the Constitutions of Government of the United States of America” and principal drafter, Massachusetts Constitution of 1780.

Essay Read By Constituting America Founder, Actress Janine Turner

 

 

The direct and essential connection among education, civic virtue, and good republican government was a self-evident truth for many late-18th-century American political and religious leaders. There was far less agreement, however, as to what exactly constituted virtue, to what extent “the people” were capable of exercising civic virtue, and if one could count on virtue to restrain political leaders, either because the leaders themselves would possess a sufficient measure or because the people would use theirs to keep the leaders in check. During the debates in 1787 and 1788 over the adoption of the new federal constitution, civic, or public, virtue was a frequent topic of discussion. To opponents of the proposed government, it was axiomatic that, however virtuous the people might be, they would not be able to control corrupt factional leaders in a far-away central government. Supporters, in turn, scaled heights of flattering rhetoric to extol the strength of republican virtue among the American people.

Virtue might be the coin of the realm for good government in the minds of American republicans of the time, but there was no consensus about its proper alloy. To New Englanders, such as Adams, their Puritan heritage saw virtue in private frugality and sobriety, and public virtue in service and sacrifice for the common good. Moreover, public virtue necessarily arose from private virtue. “Public virtue cannot exist in a nation without private, and public virtue is the only foundation of republics,” John Adams wrote to the historian Mercy Otis Warren in April, 1776. Moreover, republican government was essential to “true Liberty.”

However, man, being fallen, lacked virtue by nature. Virtue had to be taught, but that was a difficult project. Education, though necessary, was not sufficient. Coercion must always be kept near at hand. As John Adams wrote to Thomas Jefferson in October, 1787, “I have long been settled in my own opinion that neither Philosophy, nor Religion, nor Morality, nor Wisdom, nor Interest, will ever govern nations or Parties, against their vanity, their Pride, their Resentment, or Revenge, or their Avarice, or Ambition. Nothing but Force and Power and Strength can restrain them.”

It should be noted that Adams, like many others of the founding generation of American republicans, distrusted pure democracy. In a letter in April, 1814, to the Southern agrarian philosopher John Taylor of Caroline, he wrote, echoing classical political thought,

“Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There never was a democracy yet that did not commit suicide. It is in vain to say that democracy is less vain, less proud, less selfish, less ambitious, or less avaricious than aristocracy or monarchy. It is not true, in fact, and nowhere appears in history. Those passions are the same in all men, under all forms of simple government, and when unchecked, produce the same effects of fraud, violence, and cruelty.”

There were limits to the degree to which all people could be trained to civic virtue, limits which inhered in man’s corruption through the passions and in the frailty of the human mind to control them.

For Southern agrarian republicans, private virtue, even if successfully inculcated in the people, could not guarantee civic virtue in the halls of government. Adams’s assertion, “Public virtue cannot exist in a nation without private, and public virtue is the only foundation of republics,” might well be true as far as it went. However, as John Taylor of Caroline wrote, “By expecting publick good from private virtue, we expose ourselves to publick evils from private vices.” The New England solution of using the strong hand of an intrusive government to control private vices was unpalatable to the Southern agrarian class. Instead, they agreed with James Madison in The Federalist No. 51, that there was a “need for auxiliary precautions.”

Those auxiliary precautions included a structure of divided powers where “ambition must be made to counteract ambition.” Good republican government could be fostered by relying not on the public virtue of either political leaders or a civically militant people, but on embracing the reality of conniving and power-hungry politicians whose mutual jealousies would check each other. In similar manner, political factions, that bane of good republican government, being driven by self-interest, would jockey for influence in constantly changing coalitions. Among factions, none would become entrenched, as there were no permanent allies or enemies, only permanent interests, to borrow from Lord Palmerston’s policy description of 19th-century British international relations.

National republicans, such as Alexander Hamilton and George Washington, rejected a fundamental premise that underlay other conceptions of civic virtue. Rather than treat virtue and passions or self-interest as antithetical, and fusing public virtue to private virtue, national republicans simply redefined that relationship. Some private vices were rooted in self-interest, such as the desire for fame, honor, or even wealth, but they could be harnessed to produce great public benefit and, therefore, should be considered civic virtues. Government could create incentives for persons to engage in such “good” passions to produce great public benefit.

Nor were all members of the American elite without doubt about the scope of virtue among the American people or about their capacity to attain a sufficient measure of it. John Adams, as prolific a writer on the connection between virtue and good republican government as lived at the time, warned in a letter in June, 1776,

“The only foundation of a free Constitution, is pure Virtue, and if this cannot be inspired into our People, in a greater Measure, than they have it now, They may change their Rulers, and the forms of Government, but they will not obtain a lasting Liberty.—They will only exchange Tyrants and Tyrannies.”

Whatever their differences about the meaning of virtue and about the capacity of private virtue to produce sufficient public virtue, the expositors of virtue politics generally agreed with Aristotle that education and training in private virtue were necessary to its practice. For most of them, only the broad distribution of land ownership rivaled virtue in promoting and protecting liberty and republican government. Thus, education to virtue was an essential task, even if the outcome was uncertain and incomplete. Education had to be grounded in religion and morality, as those were the sources of virtue. The Northwest Ordinance of 1787, perhaps the greatest peacetime achievement of the Confederation Congress, codified this premise:

“Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools, and the means of education shall forever be encouraged.”

President George Washington in his lengthy Farewell Address, published in September, 1796, gave a succinct rhetorical overview of the connection among religion, morality, virtue, and good republican government:

“Of all the dispositions and habits which lead to political prosperity, religion and morality     are indispensable supports. In vain would that man claim the tribute of patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of men and citizens….And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.

It is substantially true that virtue or morality is a necessary spring of popular government. The rule, indeed, extends with more or less force to every species of free government….

Promote then, as an object of primary importance, institutions for the general diffusion of knowledge.”

There was cause for optimism, as the American population had a high rate of literacy compared to that even of European countries. “Ours are the only farmers who can read Homer,” a self-satisfied Thomas Jefferson boasted in a letter to St. John de Crèvecoeur in January, 1787. Jefferson is well-known for his efforts in the founding of the University of Virginia in 1819, for the design of which he also developed architectural plans. His educational activism was not limited to creating a university. As early as 1785, in his Notes on the State of Virginia, Jefferson laid out a plan to educate younger children of both sexes for three years at public expense, with higher grades open to the boys of parents who could afford the tuition and to a limited number of other boys selected on the basis of their intellectual capabilities. In Jefferson’s somewhat indelicate language to modern ears, “By this means twenty of the best geniuses will be raked from the rubbish annually, and be instructed, at the public expence, so far as the grammar schools go.” His ambitious plan was not realized in any form in Virginia until after the Civil War.

Along with the general goals of imparting knowledge for its own sake and for practical pursuits, Jefferson saw education as a necessary process for republican government. Perhaps his best-known aphorism regarding the importance of education appeared in a letter he wrote to Colonel Charles Yancey in January, 1816, “If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be.” The antidote to such a doomed expectation was education. “The qualifications for self government in society are not innate. They are the result of habit and long training,” Jefferson wrote to Edward Everett in March, 1824.

Other famous Americans echoed these sentiments. As supposedly worldly and skeptical as he was, Benjamin Franklin nevertheless advised, “A Bible and a newspaper in every house, a good school in every district—all studied and appreciated as they merit—are the principal support of virtue, morality, and civil liberty.” James Madison declared that the Constitution required “sufficient virtue among men for self-government.” Otherwise, “nothing less than the chains of despotism can restrain them from destroying and devouring one another.” The old Son of Liberty, Samuel Adams, opined in a letter to James Warren in 1779, “If Virtue & Knowledge are diffused among the People, they will never be enslav’d. This will be their great Security.”

None of the founding generation appear as convinced of the importance of education and religion to virtue and of virtue to liberty preserved through republican government as Samuel’s cousin John Adams. Despite his occasional doubts and pessimism, Adams was a staunch virtue republican. His writings are filled with quotable passages about the subject. A few will give the essence of his thoughts. Perhaps his best known, expressed in a letter in October, 1798, to officers in the Massachusetts militia, is “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” This sentiment, embraced the then-common belief that the American experiment in self-government, more than aristocratic or monarchic systems, relied on virtue widely diffused among the general population, or at least among those who would have the privilege to vote or to hold public office.

In the same letter in 1776 in which Adams expressed concern about the state of virtue among his fellow Americans, he also wrote,

“Statesmen my dear Sir, may plan and speculate for Liberty, but it is religion and morality alone which can establish the principles upon which freedom can securely stand. The only foundation of a free constitution is pure virtue.”

To complete the causal chain, one may point to his 1765 Dissertation on the Canon and Feudal Law, where he asserted, “Liberty cannot be preserved without general knowledge among the people.”

These quotations are not merely a string of disjointed musings. The writers put practical efforts behind their firm and constant beliefs, beliefs shared by Americans generally. Jefferson’s contributions to education have already been noted. Adams was the principal drafter of the historically important Massachusetts Constitution of 1780. That charter declared that “the happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion, and morality ….” Article V formally encouraged the development of publicly-funded primary and grammar (secondary) schools. To justify that effort, the section began, “WISDOM and knowledge, as well as virtue, diffused generally among the body of the people, [are] necessary for the preservation of their rights and liberties ….”

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

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Principle of Appropriate Role and Purpose of Government in Protecting Liberty of the Citizenry

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Guest Essayist: Andrew Langer
United States Constitution showing the first page with Article I, with the Bill of Rights and American Flag

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

Since the earliest days of the American founding, a bedrock principle of our republic has been the concept that government is an essential element in protecting and preserving individual rights. In the Declaration of Independence, principal author Thomas Jefferson wrote, “to secure… rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”

Building on this precept, in Federalist 51, James Madison talked about the tension between the necessity of government in protecting individual rights, but the need for the governed to work to constrain the powers of government:

“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

Our republic is built on a simple, yet powerful, concept: we are endowed by our creator with certain “unalienable” rights.  We cede small measures of those rights to government in the form of powers, in order for the full-measure of our rights to be protected.

This leads to a fundamental axiom: whenever government is enlarged, individual rights are diminished. You cannot reconcile liberty with anti-liberty.

This gives us not only the basic structure of the federal constitution, but most state-based constitutions as well. The Articles of the United States Constitution lay out the powers of government—i.e., what measure of rights we have ceded to the government in the form of powers. The first eight amendments within the Bill of Rights represent further constraints on those powers in order to protect individual rights.

But then the last two amendments in the Bill of Rights, Amendments 9 and 10, make further declarations regarding the balancing of rights versus the powers of government.

The Ninth Amendment makes it clear that the rights of citizens aren’t limited to what is “enumerated” in the Bill of Rights, that their rights are essentially infinite, while the Tenth Amendment underscores this idea that the powers of government are created by the people giving up some measure of their rights—and anything not “delegated” to government is “reserved” by the people.

Further, while a New Deal-era Supreme Court dismissed limitations on federal power in cases like US v. Darby, even that court had to admit that when it comes to the Tenth Amendment, it states, “a truism that all is retained which has not been surrendered.” US v. Darby, 312 US 100, 124 (1941)

This tension underscores the fundamental beauty of our system—we are not a pure democracy (something our founders were rightly skeptical of).  As the saying goes, “democracy is two wolves and a sheep deciding what to have for supper.”

We recognize that while the people can vote to make particular laws, those laws can only exist within the powers the people have delegated to government and they cannot be violative of the rights retained by the people. So while one group of people, even a majority of the people, might demand that government impose restrictions on certain kinds of unpopular speech, the First Amendment makes it clear that such restrictions would be unconstitutional (and one can say that the entire purpose of the First Amendment is to protect “unpopular” speech. “Popular” speech requires no such protection!).

How, then, do we assess this balance between the rights of people and the powers of government?

It starts with a basic inquiry.  All “just” law is born out of the intersection of the exercise of individual rights. One’s right to wave their hands around in a wild interpretative dance (the right to free expression) is limited the moment those hands cross the bridge of someone else’s nose, and violate their right to be secure in their person, free from harm. And when those rights come into conflict, it is the party that is more-aggrieved that the law is supposed to protect (and the law is supposed be more weighted on behalf of those less-able to advocate for themselves).

This presents our society with the need for “balancing tests” to determine where that line ought to be drawn: how is the right to free speech balanced against someone’s right to now be lied about (a harm to their reputation)? Or how is someone’s right not to be harmed by government’s force balanced against the rights of people in a community to not be harmed by that person’s violent actions?

When the public, either through legislation or via the courts, calls for a new law, a new balancing test, the Supreme Court has made it clear that such laws, such decisions, need to be made in a way to be the “least restrictive” way of achieving the government’s goals. This way the rights of the individual are still protected to the maximum extent possible.

While there remains considerable debate as to whether such balancing tests are a good thing, or whether there is harm in the long run from a series of ad hoc inquiries into that balance, in the end it is important to remember that the Constitution sets out essential bedrock principles in that regard. All that is not surrendered is retained, and we should remain vigilant each and every time we look to enlarge the power of government.

Andrew Langer is President of the Institute for Liberty, as well as Chairman and Founder of the Institute for Regulatory Analysis and Engagement. IFL is a non-profit advocacy organization focused on advancing free-market and limited government principles into public policy at all levels. IRAE is a non-profit academic and activist organization whose mission is to examine regulations and regulatory proposals, assess their economic and societal impacts, and offer expert commentary in order to create better public policies. Andrew has been involved in free-market and limited-government causes for more than 25 years, has testified before Congress nearly two dozen times, spoken to audiences across the United States, and has taught at the collegiate level.

A globally-recognized expert on the impact of regulation on business, Andrew is regularly called on to offer innovative solutions to the challenges of squaring public policy priorities with the impact and efficacy of those policies, as well as their unintended consequences. Prior to becoming President of IFL and founding IRAE, he was the principal regulatory affairs lobbyist for the National Federation of Independent Business, the nation’s largest small business association. As President of the Institute for Liberty, he became recognized as an 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.

Andrew has had an extensive career in media—having appeared on television programs around the world. From 2017 to 2021, he hosted a highly-rated weekly program on WBAL NewsRadio 1090 in Baltimore (as well as serving as their principal fill-in host from 2011 until 2021), and has filled in for both nationally-syndicated and satellite radio programs. He also created and hosted several different podcasts—currently hosting Andrew and Jerry Save The World, with long-time colleague, Jerry Rogers.

He holds a Master’s Degree in Public Administration from Troy University and his degree from William & Mary is in International Relations.

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Keeping a Free People Securely Bound Together Through the Principle of Natural Law Opposition to Tyranny

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Guest Essayist: Chris Burkett
Signing of the Declaration of Independence by John Trumbull, displayed in the United States Capitol Rotunda.

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

August 1, 1776, Samuel Adams said in his Speech on American Independence,

“When the law is the will of the people, it will be uniform and coherent: but fluctuation, contradiction, and inconsistency of councils must be expected under those governments where every revolution in the ministry of a court produces one in the state. Such being the folly and pride of all ministers, that they ever pursue measures directly opposite to those of their predecessors…We shall neither be exposed to the necessary convulsions of elective monarchies, nor to the want of wisdom, fortitude, and virtue, to which hereditary succession is liable. In your hands it will be to perpetuate a prudent, active and just legislature, and which will never expire until you yourselves lose the virtues which give it existence…Our Union is now complete; our constitution composed, established, and approved. You are now the guardians of your own liberties.”

These words of Samuel Adams justifying the pursuit of American independence represent a view among patriots in Boston that rejected hereditary monarchy in favor of representative or republican government. Adams founded his arguments upon a belief that the legitimate purposes and limitations of civil government could be discerned from an understanding of the laws of nature and natural rights. This view of government, however, had been developing and spreading in the public mind – especially in Boston – for well over a decade prior to the Declaration of Independence.

Bostonians heard these arguments with growing frequency in sermons at their places of worship after the British began to impose oppressive taxes and regulations in the 1760s. Abraham Williams, for example, a Congregationalist pastor in Sandwich, Massachusetts, incorporated a teaching on the laws of nature in his Election Sermon in 1762.[1] Mankind needs government, Williams preached, in order to secure the blessings that God has bestowed upon them. “[W]hen Men enter into civil Societies, and agree upon rational Forms of Government,” Williams said, “they act right, conformable to the Will of God, by the Concurrence of whose Providence, Rulers are appointed…The End and Design of civil Society and Government, from this View of its Origin, must be to secure the Rights and Properties of its Members, and promote their Welfare.” Williams taught that rulers, therefore, must do good, not harm to their subjects. “ In all Governments, Magistrates are God’s Ministers, designed for Good to the People. The End of their Institution, is to be Instruments of Divine Providence, to secure and promote the Happiness of Society.”

The truth of this view, Williams argued, was conclusively demonstrated by the laws of nature. “The Law of Nature (or, those Rules of Behaviour, which the Nature God has given Men, the Relations they bear to one another, and the Circumstances they are placed in, render fit and necessary to the Welfare of Mankind),” Williams continued, “is the Law and Will of the God of Nature, which all Men are obliged to obey.”

Pastor John Tucker of Newbury, Massachusetts, continued to build on this argument in an election sermon in 1771, adding that according to the Laws of Nature, governors rule by the consent of the people. “All men are naturally in a state of freedom,” said Tucker, “and have an equal claim to liberty. No one, by nature, nor by any special grant from the great Lord of all, has any authority over another. All right therefore in any to rule over others, must originate from those they rule over, and be granted by them.” The idea of rule by consent through a social compact also implied that are just limits to what government may do, and also obligations that government must perform.

“Whatever authority therefore the supreme power has, to make laws, to appoint officers, etc. for the regulation and government of the state, being an authority derived from the community, and granted by them,” Tucker concluded, “can be justly exercised, only within certain limits, and to a certain extent, according to agreement.”

In his 1776 sermon titled “On the Right to Rebel against Governors” – another election day sermon in Boston – Samuel West argued that, according to the Laws of Nature, rulers who act contrary to God’s will that the rights of the people be secured from harm may be – and in fact should be – justly resisted and opposed by citizens. “[T]yranny and arbitrary power are utterly inconsistent with and subversive of the very end and design of civil government,” West preached, “and directly contrary to natural law, which is the true foundation of civil government and all politic law. West continued:

“Consequently, the authority of a tyrant is of itself null and void; for as no man can have a right to act contrary to the law of nature, it is impossible that any individual, or even the greatest number of men, can confer a right upon another of which they themselves are not possessed; i.e., no body of men can justly and lawfully authorize any person to tyrannize over and enslave his fellow-creatures, or do anything contrary to equity and goodness. As magistrates have no authority but what they derive from the people, whenever they act contrary to the public good, and pursue measures destructive of the peace and safety of the community, they forfeit their right to govern the people.”

West’s argument that rulers who act without consent and contrary to the good of society are illegitimate aligns with many of the same arguments Samuel Adams made in his speech on independence. Adams’ message was widely agreed to in part because it was an argument Bostonians had been hearing and working toward putting into practice for well over a decade. It was a view that would be carried beyond Massachusetts as Americans in other states fought to win an then maintain American independence from British rule.

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

 

[1] This and the following sermons are available from https://oll.libertyfund.org/title/lutz-american-political-writing-during-the-founding-era-1760-1805-vol-1.

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Principle of Constitutional Restraints To Prevent the Undermining of Interests of the Entire Union

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Guest Essayist: Chris Burkett
Benjamin Franklin’s editorial cartoon entitled “Join or Die” depicting protection and unity of the colonies, May 9, 1754, Pennsylvania Gazette

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

One of the purposes of the Constitution of the United States, according to its Preamble, is “to form a more perfect Union.” It was a long road, however, for that Union to be more perfectly established as under the Constitution in 1787. Before the Constitution, the thirteen original states had agreed to a “firm league of friendship” through a compact known as the “articles of Confederation and perpetual Union.”

In July of 1776, the thirteen states engaged in an act of unity by unanimously declaring themselves “free and independent states” no longer under the political authority of Great Britain. Prior to that, in 1774, the thirteen American colonies took the first official steps toward becoming a formal Union through the Articles of Association, which established the Continental Congress and put them on the path to independence.

The pace at which the states moved from being colonies under the authority of the British Crown, to “free and independent states,” and then to the United States of America seemed to quicken and intensify under the pressure of events during the American Revolution and Revolutionary War. But for decades prior, many Americans had been attempting to establish a formal union between the British Colonies in America, primarily for purposes of mutual defense and the protection of British economic interests among the American colonies. These early efforts ultimately made it possible for the states to formally unite as the United States of America. It was not an easy road, however, as many colonies saw their habits, manners, and economic interests as quite different from those of the other colonies. Pulling these vastly different peoples together as one would be a long, arduous task.

One man who made great strides in uniting the colonies for purposes of mutual defense was Benjamin Franklin. In his Autobiography, Franklin writes of a plan of Union he had proposed in 1754. Anticipating an approaching war with France (which did eventually become the French and Indian War of 1754-1763), the British authorized a congress of commissioners from the colonies to convene in Albany, New York to discuss defensive preparations. Franklin took the opportunity to draw up a more extensive plan by which the colonial defenses would be administered by a general government of the Union.

“I projected and drew a plan,” Franklin wrote, “for the union of all the colonies under one government, so far as might be necessary for defense, and other important general purposes. … By this plan the general government was to be administered by a president-general, appointed and supported by the crown, and a grand council was to be chosen by the representatives of the people of the several colonies, met in their respective assemblies.”

Ultimately Franklin’s plan was rejected by the colonial assemblies, because under it the British retained too much political authority over the colonies, and by the British, because it seemed to grant too much independence and self-government to the colonies. Later, in 1788, Franklin would write,

“I am still of opinion it would have been happy for both sides of the water if it had been adopted. The colonies, so united, would have been sufficiently strong to have defended themselves; there would then have been no need of troops from England; of course, the subsequent pretense for taxing America, and the bloody contest it occasioned, would have been avoided.”

Despite the failure of Franklin’s Albany Plan of Union in 1754, it had an important impact on the public mind of American colonials. Franklin, as a well-known and highly respected public figure, was now identified as the leading advocate of colonial unity, inspiring others to consider the possibility of formal union in the future. Furthermore, to promote the Albany Plan, Franklin introduced one of the most important symbols of the American Revolutionary period in his famous “Join, or Die” slogan under the image of a snake cut into thirteen pieces.

Franklin designed the image and published it in his widely read newspaper The Pennsylvania Gazette on May 9, 1754. Almost two decades later, as the Acts of the British Parliament became more unjust and oppressive in the eyes of American colonists in the 1770s, Franklin’s “Join, or Die” image was revived and inspired many people to join with the patriots, thus making possible the Union that eventually emerged from the American Revolution.

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

 

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Republic or Democracy? Classical History, Republican Governing as Adopted by the United States, and the American Revolutionary War

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Guest Essayist: Jay McConville
British troops leave Boston, prior to the Battle of Lexington and Concord, April 19, 1775; start of the American Revolutionary War. Engraving by Amos Doolittle. The British Army in Concord, April 19, 1775. "Plate II. A view of the town of Concord." In: "The Doolittle engravings of the battles of Lexington and Concord in 1775." New York Public Library Collection Guide: Picturing America, 1497-1899: Prints, Maps, and Drawings bearing on the New World Discoveries and on the Development of the Territory that is now the United States. Humanities and Social Sciences Library / Print Collection, Miriam and Ira D. Wallach Division of Art, Prints and Photographs.https://en.wikipedia.org/wiki/American_Revolutionary_War#/media/File:British_Army_in_Concord_Detail.jpg

Essay Read by Constituting America Founder, Janine Turner

 

 

Republic or Democracy?

A distinction with a difference to the American Revolution.

People often use the term “democracy” when referring to the United States. The distinction between a republic, which is technically what we are, and a democracy seems lost on those who intermingle the terms as if they were synonyms. If you note that we are not a democracy, but a republic, you risk being mocked as strict constructionists overly wedded to technical definitions and unwilling to acknowledge the importance of popular sovereignty and the will of the people in our system.

This is unfortunate, as the question of whether we are a democracy or a republic is an important one, complex, and reliant on clear definitions of words and their use. Strictly speaking, the United States is a representative Republic, not a democracy. The distinction has a difference. It greatly influenced the American Revolution, and arguably saved the future Republic from ruin in its darkest days.

First, some definitions. Merriam-Webster (MW) defines democracy, a noun, as “a government by the people” characterized by “rule of the majority,” and as “a government in which the supreme power is vested in the people and exercised by them directly or indirectly through a system of representation usually involving periodically held free elections.”[1] This, of course, does a pretty good job of describing what most of us believe our government is. We the People are sovereign, and we exercise that power through elections. So far so good.

As for “republic” the definition is similar, but with several important additional elements. Republic is also a noun, meaning (according to MW), “a government having a chief of state who is not a monarch and who in modern times is usually a president,” and “a government in which supreme power resides in a body of citizens entitled to vote and is exercised by elected officers and representatives responsible to them and governing according to law.”[2]

From these definitions it is clear why there might be some confusion. A representative republic uses “democratic means” to manifest the consent of the governed. We vote for representatives, who vote on measures. Voting is democracy in action, but that does not make the United States a democracy. The measures that our representatives vote on are constrained by law and the Constitution. We do not have pure democracy or “rule by the majority” because we have constitutionally protected rights that cannot be voted away, operate under rule of law, and have, till recently, limited government with limited powers. We also have, however, an expanded voting population that is not limited by aristocracy, wealth, property ownership, or gender. Any citizen, over 18 years of age, can vote. One could say, therefore, that the United States is a democratic representative Republic.

While some might wish to believe so, the founders did not invent the concept of consent of the governed, nor was America the first democracy or republic. Discussion of such concepts had been going on for centuries and republics existed prior to the American Revolution. What the American founders did do was expand the definition of a republic so that it gave more power to the popular will of the people. They were merging, more completely, the idea of a law-based government with the concept of consent of the governed. While in retrospect we see their efforts as woefully incomplete, for the time it was a revolutionary step towards popular sovereignty. Many doubted such an expansion of representation could work over such a large population or territory.

The original text of the United States Constitution never mentions the word democracy, and only mentions republic as a form of government once in Article IV, Section 4 (“The United States shall guarantee to every State in this Union a Republican Form of Government…”). Interestingly, that clause refers to the states, and not the federal government itself. Throughout the text the founders refer to the United States as the “union” or as the “United States” but never a republic or a democracy. The Declaration of Independence does not use either term at all.

That said, the structure laid down in the Constitution contains the elements that MW described, including a “chief of state,” and that power lies with a body of “elected officers and representatives” who vote on the laws that govern the nation. All these officials govern according to law.

That is a Republic, no doubt.

When asked by “Mrs. Powel” upon the passage of the Constitution in 1787 what we had created, Benjamin Franklin famously replied, “a Republic, if you can keep it.”[3]

It is in the phrase “if you can keep it,” however, where we find the true impact of the distinction between republic and democracy. As Richard R. Beeman, Ph.D. writes “we find ample evidence that democratic revolutions do not inevitably lead to national harmony.…We see that the expression of the ‘popular will’ can create a cacophony of discordant voices…In far too many places around the world today, the expression of the ‘popular will’ is nothing more than the unleashing of primordial forces of tribal and religious identity which further confound the goal of building stable and consensual governments.”[4]

What Franklin was concerned about, what he was so prescient about, was the difficulty in preserving the union. That concern was not an idle one, as the Revolution had proven. To keep the union together required a structure that limited conflict and cooled the passions of the mob yet provided ample enough rights and liberties to both the citizen and the to the former colonies to make them support and adhere to the union. Again, quoting Beeman, “the question that has plagued all nations aspiring to democratic government ever since: how to implement principles of popular majority rule while at the same time preserving stable governments that protect the rights and liberties of all citizens.”

In 1776 a stable union did not exist. What did exist was a loose confederation of militia forces and citizens from the thirteen colonies, operating under an ill-defined structure to which their commitment continually wavered. Support for the revolution was not, by any means, universal within these colonies, and the debate between revolution and compromise with Britain raged. To preserve the effort, the founders knew they had to promise both protections from mob rule and protections for popular sovereignty. That was not a trivial endeavor.

Alexander Hamilton wrote of the challenge in a letter to John Jay in November 1775. In that letter he addressed the “passions of men” which provided for a “great danger of fatal extremes.” Hamilton wrote:

When the minds of these are loosened from their attachment to ancient establishments and courses, they seem to grow giddy and are apt more or less to run into anarchy…. In such tempestuous times, it requires the greatest skill in the political pilots to keep men steady and within proper bounds…[5]

Hamilton was concerned about conflict between New York and New England, which threatened a united stance vis-à-vis England. To control intra-colonial conflict, he argued against too much popular sovereignty, i.e., too much democracy. He recognized the need to hold the passions of men at bay, and the skill needed to do that while continuing to keep the support of the colonies.

As the American Revolutionary War against Britain intensified, George Washington was plagued by irregular support from both the colonies and the Continental Congress. His ability to avoid catastrophic defeat is legendary. What perhaps was his greater brilliance was the ability to hold the forces together, keep the states from fighting each other, and channeling the passions of his fighting forces away from each other and towards the enemy. As his letter to the colonies from Valley Forge attests, the distributed nature of the revolutionary coalition put the future of the war in great jeopardy. “In a word, the United and respective exertions of the States cannot be too great, too vigorous in this interesting work, and we shall never have a fair and just prospect for success till our Troops (Officers & Men) are better appointed and provided than they are or have been.”[6]

Washington knew very well that a citizen force of volunteer militiamen, responding only to popular will, while appealing to the revolutionary impulse, was no substitute for a centrally commanded, resourced, trained, and managed force of professional soldiers. Once launched, support to the war had to be controlled by a chief executive and protected by a Congress of representatives whose laws mattered and lasted. Counter to popular legend, it was not the minutemen who won the war. Washington could never have achieved victory had he remained subject to the democratic vagaries of thirteen colonial assemblies guided only by majority rule. “Military necessity required American leaders to change their perceptions of standing armies and challenged their republican ideals of volunteer, part-time military service…ultimately it was the Continental soldiers that would secure victory…”[7]

That the colonies agreed to the creation of the Continental Army is a critical component of the success of the revolution. It is also remarkable given the antipathy they held against standing armies. James Madison, years later during the debates over the Constitution, exposed that antipathy, stating that a “standing military force, with an overgrown Executive will not long be safe companions to liberty,” and that the “means of defense against foreign danger, have been always the instruments of tyranny at home…. armies kept up under the pretext of defending, have enslaved the people.”[8] Yet, despite that view, such a force was authorized by the fledgling republic, saving the effort and leading to victory.

Today, when a riot or mass protest occurs, people in the crowd can often be heard chanting, “this is what democracy looks like.” In a way they are correct, which is why we are a representative Republic.

John Adams famously wrote, in a letter to John Taylor in 1814, “…Democracy never lasts long. It soon wastes, exhausts and murders itself. There never was a Democracy Yet, that did not commit suicide.” In that same letter, he wrote, “the Athenians grew more and more Warlike in proportion as the Commonwealth became more democratic.”[9] The founders, students of history and great thinkers including those of ancient and classical history, knew the distinction. That they did, saved the new nation.

Our founding was saved by the skill of our “political pilots” to craft a compromise between popular will and the rule of law. We are democratic, but we are not a democracy. We the People are those whose consent is required, but the Constitution is the Supreme Law of the Land.

We would have never made it otherwise.

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

[1] https://www.merriam-webster.com/dictionary/democracy

[2] https://www.merriam-webster.com/dictionary/republic

[3] Mrs. Powel was not just a random woman on the street. She was an influential and important member of society, close in association with George Washington. Read more of her interesting story here: https://www.mountvernon.org/library/digitalhistory/digital-encyclopedia/article/elizabeth-willing-powel/

[4] https://constitutioncenter.org/education/classroom-resource-library/classroom/perspectives-on-the-constitution-a-republic-if-you-can-keep-it

[5] https://founders.archives.gov/documents/Jay/01-01-02-0099

[6] https://www.gilderlehrman.org/sites/default/files/inline-pdfs/t-03706.pdf

[7] https://www.battlefields.org/learn/articles/militia-minutemen-and-continentals-american-military-force-american-revolution

[8] https://teachinghistory.org/history-content/ask-a-historian/24671

[9] https://founders.archives.gov/documents/Adams/99-02-02-6371

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Classical History and Governing Devoted to Freedom and Independence Through Restraining Power of Elected Representatives

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Guest Essayist: Winfield Rose
Signing the Mayflower Compact 1620, a painting by Jean Leon Gerome Ferrishttps://en.wikipedia.org/wiki/Mayflower_Compact

Essay Read By Constituting America Founder, Actress Janine Turner

 

 

Other impacts of the Protestant Reformation derive directly from the teachings of John Calvin (1509-1564), a Frenchman by birth who spent most of his life in Geneva, Switzerland. The distinguishing characteristic of Calvinist Protestantism, as presented in his Institutes of the Christian Religion (1535), is the doctrine of predestination, meaning that God has predestined or foreordained some people (called the “elect”) for salvation and others for damnation. This is part of eternal law and, as such, there is nothing anyone can do about it. It is an unchangeable decision made by God, not a matter of the potential believer’s free will. Knowing if one is among the elect is a problem, however. The psychological insecurity this caused was severe.

The German sociologist Max Weber (1864-1920) published The Protestant Ethic and the Spirit of Capitalism in 1905. Written as a response to Karl Marx’s theory of economic determinism, Weber wanted to show that history could have a prime mover other than economics, namely religion, and argued that Calvinists searched for certainty of salvation in a God-given calling (a job or career), unceasing hard work, and the suppression of physical pleasure. In other words, one could know one was among the elect by working hard and saving and investing rather than spending one’s money and enjoying one’s self. This has come to be known as the Protestant or Puritan work ethic.

The argument continues that the Puritans brought this work ethic with them to North America and that it permeated the entire culture.[i]

Prof. Davis calls the Protestant or Puritan ethic “the beginning of the American dream,” saying

“Political, social, and economic life in the late twentieth century bears scant resemblance to the Puritan way. Yet the religious doctrine of the Puritans had a profound influence on a central characteristic of our tradition – the American dream. For modern Americans, that dream is typically one that involves success measured in terms of material wealth. . . . To all appearances that dream of success has no connection with the religious views, values, and aspirations of the Puritans. It is possible, nevertheless, to uncover the seeds of the modern individual’s pursuit of private wealth in the seventeenth-century Puritan’s quest for salvation.”[ii]

Puritans on both sides of the Atlantic embraced the ideas of the covenant or social contract (government based on consent of the governed), natural rights, and resistance to unjust authority (which itself was a natural right). Before they disembarked from the Mayflower in 1620 the Pilgrims wrote and signed the Mayflower Compact, thereby creating the first written social contract in history. It was first published in London in 1622 and reads as follows in modern English:

“In the name of God, Amen. We, whose names are underwritten, the Loyal Subjects of our dread Sovereign Lord, King James, by the Grace of God, of England, France and Ireland, King, Defender of the Faith, e&.

Having undertaken for the Glory of God, and Advancement of the Christian 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 of 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 to enact, constitute, and frame, such just and equal Laws, Ordinances, Acts, Constitutions and Offices, from time to time, as shall be thought most meet and convenient for the General good of the Colony; unto which we promise all due submission and obedience.

In Witness whereof we have hereunto subscribed our names at Cape Cod the eleventh of November, in the Reign of our Sovereign Lord, King James of England, France and Ireland, the eighteenth, and of Scotland the fifty-fourth. Anno Domini, 1620.”

Twenty-one years later our Puritan forefathers saw the need for a delineation of rights and adopted the Massachusetts Body of Liberties in 1641. This “was the first attempt in the colonies to restrain the power of the elected representatives by appealing to a fundamental document that lists the rights and duties of the people. The document . . . combined the early American covenanting tradition of the Mayflower Compact with an appeal to the common law tradition that crossed the Atlantic from Britain. The Massachusetts Body of Liberties contains ninety-eight sections. . . The most enduring part . . . is the preamble and the first seventeen sections . . .” The preamble reads as follows:

The free fruition of such liberties, immunities and privileges as humanity, civility, and Christianity call for as due to every man in his place and proportion without impeachment and infringement hath ever been and ever will be the tranquility and stability of churches and commonwealths. And the denial or deprival thereof, the disturbance if not the ruin of both.

We hold it therefore our duty and safety whilst we are about the further establishing of this government to collect and express all such freedoms as for present we foresee may concern us, and our posterity after us, and to ratify them with our solemn consent.

We do therefore this day religiously and unanimously decree and confirm these following rights, liberties and privileges concerning our churches, and civil state to be respectively impartially and inviolably enjoyed and observed throughout our jurisdiction forever.

Space limitations preclude including the 17 sections here but they can be accessed at https://teachingamericanhistory.org/document/the-massachusetts-body-of-liberties/.

It is interesting to see how these ideas made their way back across the Atlantic to England. In 1644 a Scottish Presbyterian by the name of Samuel Rutherford published a book in London titled Lex Rex which contained all these ideas. The Puritan Revolution or English Civil War led by Cromwell lasted from 1640 to 1649  and gave birth to Thomas Hobbes’ Leviathan, first published in 1651, which was based on the natural right to life and created a powerful state whose legitimacy derived from the consent of the governed to protect it.

This was followed by John Locke’s Two Treatises of Government which were published  in 1689 at the time of the Glorious Revolution and the English Bill of Rights. Locke proposed that government emerges from the consent of the governed to protect the natural rights of life, liberty and property.

These ideas were picked up by the authors and signers of the Declaration of Independence in 1776.

“The American Revolution might thus be said to have started, in a sense, when Martin Luther nailed his 95 theses to the church door in Wittenberg. It received a substantial part of its theological and philosophical underpinnings from John Calvin’s Institutes of the Christian Religion and much of its social theory from the Puritan Revolution of 1640-1660, and, perhaps less obviously, from the Glorious Revolution of 1689. Put another way, the American Revolution is inconceivable in the absence of the context of ideas which have constituted Christianity. The leaders of the Revolution in every colony were imbued with the precepts of the Reformed faith.[iii]

Winfield H. Rose, Ph.D., is Distinguished Professor of Political Science Emeritus at Murray State University.

 

[i] Sanford Kessler, “Tocqueville’s: Christianity and the American Founding.”  The Journal of Politics, v. 54 #3, August 1992, pp. 776-792.

[ii] Sue Davis, American Political Thought: Four Hundred Years of Ideas and Ideologies. Prentice Hall, 1996,  p. 22. Emphasis added.

[iii] Page Smith, quoted in Amos and Gardiner, p. 3. Emphasis added.

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Principle of Applying Lessons from Classical History Toward New Governing Devoted to Freedom and Independence

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Guest Essayist: Winfield Rose
“Embarkation of the Pilgrims” by Robert W. Weir, 1844, United States Capitol Rotunda. John Carver, William Bradford, Miles Standish kneeling in prayer during their voyage to North America; open Bible, symbols within the painting of God’s promises.https://en.wikipedia.org/wiki/Mayflower#/media/File:Embarkation_of_the_Pilgrims.jpg

Essay Read By Constituting America Founder, Actress Janine Turner

 

 

Christianity in the Roman Empire was first persecuted, then tolerated, and later adopted as the official religion. The latter development was to the long-term detriment of the faith because, as the Church adopted the structures and procedures of Roman imperial government, it became ever more corrupt, as had the Roman government itself during previous centuries.

The details of this process are beyond the scope of this essay, but suffice it to say at this point that by 1517 a young German monk by the name of Martin Luther (1483-1546) decided change was needed. He, therefore, wrote and tacked his 95 theses on the church door in Wittenburg and launched what came to be the Protestant Reformation, thereby fracturing western Christianity forever.

Professor Sue Davis correctly described this momentous event as follows: “When Martin Luther . . . posted his ninety-five theses on the door of the castle church at Wittenberg in 1517 he initiated a revolution in politics as well as religion.”[i]

The relevance of the Reformation to the American political system can be understood as follows. First, the Reformation divided a Europe that had followed one central faith for centuries into more than two distinct groups in that there was not one Protestant church/faith/denomination but four, to be followed by more later. These four were the Lutherans, the Calvinists, the Anabaptists and the Anglicans in England.

These four groups not only differed from Catholicism, they differed from each other. It was, therefore, unfortunately inevitable that conflict would break out between them. On the continent this took the form of the Thirty Years’ War (1618-1648) between German Catholics and Lutherans. There were religious civil wars in France between Catholics and Huguenots (French Calvinists). In England it was the Puritan Revolution/English Civil War, 1640-1649, between Anglicans and those called Puritans who wanted to reform the Church of England along Calvinist lines. This resulted in the regicide of King Charles I and the establishment of the Protectorate of Oliver Cromwell in 1649.

These wars had two significant impacts on what was to become the United States. First, many Europeans tired of the seemingly endless slaughter and religious persecution and desired to escape, thereby emigrating to North America and populating the English colonies.[ii]

Second, after flirting with bringing their sectarian conflicts with them, our forefathers decided to do otherwise, ultimately making religious freedom a part of the United States Constitution in its First Amendment. The American tradition of separation of church and state can be traced directly back to the conflicts spawned by the Protestant Reformation.

In addition, the Protestant Reformation forced a fundamental change in political philosophy. The Magna Carta and Aquinas’ Treatise on Law were minor tremors but the Reformation was a major earthquake in that it articulated a right of resistance to unjust authority.

Romans 13 had been the basis of governmental authority in both the church and state for centuries. Remember that Jamestown had been founded in 1607 and Plymouth in 1620, and that the King James translation of the Bible was published in 1611. The first seven verses of Romans 13 in that translation read as follows:

1 Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God.

2 Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resist shall receive to themselves damnation.

3 For rulers are not a terror to good works, but to the evil. Wilt thou then not be afraid of the power? do that which is good, and thou shalt have praise of the same:

4 For he is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil.

5 Wherefore ye must needs be subject, not only for wrath, but also for conscience sake.

6 For for this cause pay ye tribute also: for they are God’s ministers, attending continually upon this very thing.

7 Render therefore to all their dues: tribute to whom tribute is due; custom to whom custom; fear to whom fear; honour to whom honour.

These powerful words formed the basis of the divine right of kings theory and, in part, the basis of the Pope’s authority in the Church. How could Luther resist the Pope and Church without disobeying Romans 13? He could do so when obeying a higher authority (God) required him to.

According to Luther, it is a sin to obey any authority that forces or tries to force people to do that which is ungodly, unjust, unrighteous, unlawful or, in other words, wrong. A Godly person simply cannot do such things without sinning. As Luther said, “Hier stehe ich; ich kann nicht anders.”

About 150 years later this became “Resistance to tyrants is obedience to God.” The British government was violating God’s law and the Americans had not only the right but the duty to resist. And they did.

Winfield H. Rose, Ph.D., is Distinguished Professor of Political Science Emeritus at Murray State University.

 

[i] Sue Davis, American Political Thought: Four Hundred Years of Ideas and Ideologies.  Prentice Hall, 1996, p. 10.

[ii] I acknowledge that some came to the New World for personal and economic reasons rather than for religious and political reasons.

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History, Order and Tradition in the Formation of America’s Founding Documents

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Guest Essayist: Ron Meier
Writing the Declaration of Independence, 1776. Benjamin Franklin, John Adams, and Thomas Jefferson working on the Declaration, a painting by Jean Leon Gerome Ferris, 1900

Essay Read By Constituting America Founder, Actress Janine Turner

 

 

Driving through Connecticut, you’ll see license plates with the words “Constitution State” inscribed at the bottom of the plate. But wait! Wasn’t the Constitution drafted in Pennsylvania, known as the Keystone State? And wasn’t Delaware, known as the First State, the first state to ratify the Constitution? So why is Connecticut called the Constitution State?

Connecticut did play an important role in the drafting of the United States Constitution, proposing the Connecticut Compromise, also known as the Great Compromise, breaking the impasse created by delegates who favored proportional representation by population and opposed by delegates who favored equal representation by state. Certainly a justifiable reason for Connecticut to call itself the Constitution State, for without that important compromise, a Constitution may never have been agreed upon by delegates from both large and small states.

However, that was not the reason for the adoption of the motto “Constitution State.”  John Fiske, a historian born in Hartford in 1842, stated that the Fundamental Orders of 1639, a social compact created among three towns in what later became the colony of Connecticut, was the first Constitution created in the United States.  The preamble to the document states that, to “maintain the peace and union of such a people, an orderly and decent Government should be established according to God.”

Ordered liberty, defined as “freedom limited by the need for order in society,” is a concept well known by our Founding Fathers. The roots of ordered liberty can be traced back thousands of years. Religious liberty was the motivation for the Pilgrims who landed at Plymouth Rock in 1620; all of them knew their Biblical history of freedom, anarchy, enslavement, totalitarianism, secession, and rejection.

Among other Biblical examples, they may have considered the Book of Nehemiah.  After the fall of Judah in 586 BC, the Israelites were exiled to Babylon. Beginning in 538 BC, groups of Israelites began returning to Jerusalem, which had been destroyed. Over the subsequent 100 years, the city had no effective government, no militia, and the protective walls of the city lay in ruins. In 432 BC, Nehemiah, an Israelite serving the Persian King in Babylon as Cupbearer, had become frustrated hearing from Israelites of the conditions in Jerusalem and received permission from the King to lead a group to Jerusalem to restore order. He had no expertise in construction management, the politics of government, or military tactics, yet, he quickly took command after arriving in Jerusalem and led the citizens to complete the wall of the city, to organize a formal government, and to organize a militia to defend the city.

Recognizing the need for ordered liberty in their new settlement, the Pilgrims, before landing at Plymouth Rock, drafted a compact for the new village they were about to create near current-day Boston; that document, the Mayflower Compact, reflected the Pilgrims’ commitment to God and to the English King.

Soon thereafter, the Massachusetts Bay Colony was chartered by King Charles I in 1629. In 1630, an English lawyer, Roger Ludlow, arrived in Massachusetts and settled in Dorchester. He quickly became involved in Massachusetts political life and helped draft laws of the Massachusetts Bay Colony. However, after only five years in Dorchester, he and other Pilgrims, dissatisfied with religious conflicts in Massachusetts, left Massachusetts to establish a new religious community in what later became the Connecticut Colony. Ludlow settled in Windsor and others settled in the villages of Wethersfield and Hartford, all very close to each other. The three villages were self-governing, but had to unite to fight the Pequot Indians.

Recognizing the need to unite more formally, the three towns, led by Ludlow’s legal expertise, drafted the Fundamental Orders, a formal compact to establish the principles for an orderly confederation-style of government for the three towns. In a sermon that encouraged Ludlow to create the text of the Fundamental Orders, the Rev. Thomas Hooker, a founder of Hartford, dynamic preacher, and inspiration for the Fundamental Orders, said that “The foundation of authority is laid in the free consent of the people. As God has given us liberty let us take it.” Hooker is considered by some to be the father of American democracy. His statement regarding the free consent of the people may have been the first expression in the colonies of a key principle that, more than 100 years later, would find its way into our nation’s founding documents.

Unlike many social compacts at the time, the Connecticut document recognized no allegiance on the part of the colonists to England, but in effect set up an independent government. The Fundamental Orders were intended to be a framework of government more permanent than a compact, and in essence, a constitution. Simeon E. Baldwin, a former Chief Justice of the Connecticut Supreme Court, defended Fiske’s view that the Fundamental Orders of 1639 was the first Constitution created in the United States by stating that

“never had a company of men deliberately met to frame a social compact for immediate use, constituting a new and independent commonwealth, with definite officers, executive and legislative, and prescribed rules and modes of government, until the first planters of Connecticut came together for their great work on January 14th, 1638-9.”

Whereas the Mayflower Compact was designed for a single community, the Fundamental Orders was designed for three communities, further evidence that it was a Constitution, much like the later United States Constitution designed to bring unity among 13 colonies. Also, some features of the Fundamental Orders prefigured the United States Constitution, even if not in exact form. The Orders provided for yearly elections conducted in accordance with Direct Democracy format, appropriate for smaller communities. An annual election was held, during which a Governor and six Magistrates were elected to serve a one-year term of office. Each town also elected two Representatives to a unicameral legislature which met each September in a legislative session. This prefigured the Representative Democracy to be devised in 1787, although the latter resulted in a bicameral legislature. Freemen had a right of petition; and a method was devised to tax each town to raise funds as required for administration of the government. Liberty of speech was emphasized in the Orders and “unseasonable and disorderly speakings” were discouraged. The office of the Secretary of State was officially established in the Fundamental Orders of 1639 and has continued to exist since that time, the oldest Office of the Secretary of State in the United States.

It wasn’t until 100 years later that the Connecticut legislature acted upon Fiske’s opinion about the Fundamental Orders being the first Constitution created in the United States. In 1959, the legislature officially designated Connecticut’s nickname to be The Constitution State. In anticipation of the upcoming bicentennial of the founding of the United States, in 1973 the Connecticut legislature mandated that Connecticut’s license plates should display the state slogan the assembly had adopted 14 years earlier.

Interestingly, Roger Ludlow, the primary architect of the Connecticut Fundamental Orders, grew weary of the challenges of colonial life, and returned to England in 1654, where he died and is buried.

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

Sources:

Neh 1-Neh 7 NABRE – I. The Deeds of Nehemiah Chapter 1 – Bible Gateway

Microsoft Word – DocsOfCTGov.doc

Register and manual – State of Connecticut : Free Download, Borrow, and Streaming : Internet Archive

Roger Ludlow – Wikipedia

Are We the Constitution State? – Connecticut Explored (ctexplored.org)

Why is Connecticut Called the Constitution State? (unitedstatesnow.org)

History of Connecticut – Wikipedia

Windsor, Connecticut – Wikipedia

Mayflower Compact – Wikipedia

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Essentially Bound: The Principle of Regard for History, Order, and Tradition

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Guest Essayist: Joerg Knipprath
Independence Hall, Philadelphia, Pennsylvania

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

In The Federalist No. 6, Alexander Hamilton sought to refute the claim that commercial republics, such as the thirteen original united states, do not go to war with each other, and that, therefore, there was no threat of eventual disunion to be feared from the looser structure of the Articles of Confederation. He cited numerous historical examples, from ancient Greece to more modern times, to challenge that comforting assertion. Hamilton urged, “Let experience, the least fallible guide of human opinions, be appealed to for an answer to these inquiries.” His approach was characteristic of many discourses and arguments in The Federalist. James Madison frequently referred to the history of ancient Greece, while Hamilton repeatedly looked to the fate of the Roman Republic and to the history of English constitutional practice. Other antagonists engaged in similar mode of argumentation in the debate over the fate of the proposed Constitution of 1787.

Indeed, that tactic was not limited to the debates over the Constitution. For example, John Adams extensively discussed the history of Italian republics in his multi-volume work on contemporary state constitutions, A Defence of the Constitutions of Government of the United States of America, written from 1786 to 1788. After all, history is recorded human experience. The lessons that history might teach are drawn from the often-painful experiences and frequently tragic responses of those who went before us. The need to examine those experiences and debate their lessons was particularly acute when the undertaking was a new political order, Novus ordo seclorum, as the new motto placed on the Great Seal of the United States by the Confederation Congress promised. As Adams wrote to an acquaintance in connection with the publication of Defences, “They [the Italian republics] are the best Models for Americans to Study, in order to show them the horrid precipice that lies before them in order to enable and Stimulate them to avoid it.”

While history is the record of experience which subsequent generations can use as a primer in guiding their affairs, tradition (or custom) is the collective manifestation of that experience. It is “how things are done here.” Tradition sometimes is rejected because it is outdated for modern conditions, or at least appears to be so. But before rejecting tradition, it is wise to remember the precautionary principle captured in G. K. Chesterton’s Fence, an admonition best summarized as, “Do not remove a fence until you know why it was put up in the first place.” Tradition allows us to live in a social community without the chaos and inefficiency of having to learn anew each day how to organize complex human relationships.

The use of tradition to guard against rash, irrational, or oppressive political action has a long heritage. Reliance in ancient Roman republican constitutional practice on the mos maiorum, the tradition of the forefathers, sought to restrain arbitrary actions by ambitious politicians who might threaten the stability of the republic and the well-being of its citizens. Violations of tradition might have disastrous consequences. In Sophocles’s Oedipus Cycle, the Theban princess Antigone attempted to bury her dead traitorous brother in accordance with the ancient tradition rooted in divine commands. In doing so, she defied King Kreon’s decree to let the body be torn apart by animals. The deadly consequences of that decree for Antigone and for Kreon and his family is the stern lesson taught by the dramatist.

Another literary example is in Homer’s Iliad. The downfall of Troy results from the violation of the ancient Greek tradition of hospitality (xenia) by the Trojan prince Paris in running off with Helen, the wife of his host, the Spartan king Menelaus.

A more recent case in point is the Great Proletarian Cultural Revolution instigated in the 1960s in Red China by Chairman Mao. He urged radical Red Guards to destroy the “Four Olds,” old ideas, culture, customs, and habits. The disastrous result for the Chinese people was an exemplification of the chaos, misery, and suffering when the bonds of tradition are sundered, and societal fences are torn down irrationally.

American writers of the Founding appealed relentlessly to tradition to justify their actions. Their claims that the British government was violating their ancient rights as Englishmen by enacting statutes, such as the Stamp Act, might have been dubious politically and self-interested economically. Their references to Magna Charta might have been strained as a matter of history. Still, those arguments reflected an attitude Americans maintained throughout the period that theirs was a “conservative” reaction against dangerous constitutional usurpations that went against the very reason for government, namely, to protect human flourishing.

In the same manner, during the debates on the Constitution of 1787, the new charter’s supporters repeatedly rejected the argument that it was a radical anti-republican proposal. Instead, the writers of The Federalist Papers, particularly James Madison, claimed that the new document was built on the Articles of Confederation, with some modifications needed to correct the earlier charter’s most glaring deficiencies. Madison’s claim might have been in tension with the approach adopted early by the Philadelphia Convention of writing a new document rather than proposing amendments to the Articles. It might contradict some of his own positions in that collection of essays. But it was an argument frequently repeated in the state conventions. Indeed, the preamble to the Constitution itself declares that the object was to form a “more perfect Union,” not to create one.

The accumulated wisdom of those who have gone before us, which is reflected in living traditions, plays a particularly prominent role in law. “Law” is associated with constancy, predictability, and knowability. We speak of “laws” of physics, which means that the associated phenomena manifest themselves universally and regularly, that we can predict specific results from their applications, and that we can understand them through observation and reason, often expressed through the language of mathematics. Universal “law” in the context of human action is more speculative, but not entirely so. Discovering such law is predicated on observation and reasoned interpretation primarily of the experiences of people within one’s own culture at different times, but also of those of people in other cultures. Such universal prescriptions of “right” conduct, whether called natural justice, natural law, divine law, or something else, animate not just particular political decrees and legislation but also customs which direct how one should comport oneself more generally.

“Natural law” in that sense is a construct primarily of metaphysics, but also has clear connections to religion. It is an application of tradition to matters of government and politics, but it also has an inherent moral content, rooted in an external source. Consider, for example, the words of Saint Paul in his letter to the Romans that the Gentiles, who do not have the Mosaic law, nevertheless can in their nature act in accordance with the law because it has been placed on each person’s heart by God and is exercised through conscience.

Although natural law has an inherent moral content that exists independently of human practice, that content is best gleaned through investigation of how “things are done” over time and consistently, in other words, experience reflected in tradition. As Aristotle declared in Politics, “observation tells us that every state is an association, and that every association is formed with a view to some good purpose.” The manner in which something operates successfully over time is evidence that it acts in accordance with its true nature or essence.

In jurisprudence and juristic practice, the force of tradition is expressed in one form through the doctrine of stare decisis (“to stand by things decided”), the presumptive adherence to precedent in judicial decisions that promotes the stability and predictability which are the attributes of law. For example, a determination by the Supreme Court of what a provision of the Constitution means is binding on the lower courts. But even in matters heard by subsequent panels of the Supreme Court, the earlier Court’s holding is unlikely to be disturbed. Although this is not an invariable rule, the longer and more frequently that earlier precedent has been followed, the less likely the Court is to disregard it in a similar subsequent case. Many are the paeans that various justices have penned to the doctrine of stare decisis, although the cynic might say that the doctrine lasts only as long as it fits the author’s conception of the “right” result in a particular case. Adherence to precedent allows the courts to guard against the “dangerous innovations in the government,” the function to which Alexander Hamilton pointed in The Federalist No. 78 as the core purpose of judicial review of the constitutionality of legislation.

Because the object of the ethical state is to provide the conditions for human flourishing, those political arrangements which are most successful at that endeavor are the best. Human law is useful to provide the order needed for individual flourishing within a community. But not just any law, only law directed towards that end. The philosophic speculations of Aristotle about the limits imposed by natural justice on the human lawgiver, and the intellectually rich and politically significant investigations of “natural law” by philosophers from the classical Cicero to the medieval scholastic Thomas Aquinas, to the more modern Francisco Suarez and Hugo Grotius address ways to establish an ethical basis for ordinary human law and a proper balance between liberty and order, individual and community.

“Order” can mean many things. Fundamentally, the word conveys stability, rules, and limits. Tradition, law, and order are essentially bound. The concept of natural law is founded on the idea of an orderly universe governed by stable laws of physics and, regarding human action, universal rules of morality. The preeminent expositors of natural moral law, the European scholastics of the Middle Age, lived and wrote in a highly ordered society, where everyone had a designated place in that feudal order. Moreover, it was understood that human society itself existed in a universal order governed by God.

The advent of modernity rejected the strict structural approach of a universal order of which each person was a part. Instead, the focus became on voluntary association and consent as the basis of society, and on individual natural rights, rather than duties and rights derived from one’s place in the “natural” order of things and persons. The problem with a focus on individual will and consent as the basis for individual action is that it invites atomization, subjectivism, moral relativism, and nihilism, concerns vividly raised many centuries ago by Plato in his discussion of the “democratic man” in The Republic. Unbridled liberty is chaotic and threatens to veer into license, as there exist no external standards that can claim inherent legitimacy based on higher moral authority or the moral force conveyed by tradition. Each person becomes a moral standard only onto himself or herself.

Yet the need remains for structure and stability in an orderly society, lest the relations among people devolve into a competition defined solely by power, resembling a Hobbesian state of nature of a war of all against all. The solution proposed by various “left” writers, from Rousseau to Marxist-Leninists of various stripes, of a government where the rulers embody a stylized “general will” of the collective in place of the expression of individual wills inevitably has led to dictatorship and oppression. To have that necessary stability, yet foster individual flourishing, there must be, as various Supreme Court opinions have pronounced, “ordered liberty” whose fundamental principles are protected under the Constitution. The difficulty, of course, lies in striking that balance, of achieving practically what otherwise is only an aspirational slogan.

The Framers of the Constitution and other Americans of that era understood all of this quite well. John Adams and the New Englanders came to this knowledge and conviction easily, based on their Puritan culture. Hard-headed and practical statesmen, such as Alexander Hamilton and George Washington, understood this from life experience in political and military conflict. Even those drawn to more utopian ideas and more naive idealism, such as Thomas Jefferson, were brought down to earth by revulsion at the excesses of the French Revolution set in motion by radical ideologies. Liberty and order, change guarded by tradition, were the guiding principles of the Founders, informed by the lessons of history and by their own experiences.

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

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Principle of Governing to Secure Liberty of the People, Not Government

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Signing of the Constitution - Independence Hall in Philadelphia on September 17, 1787, painting by Howard Chandler Christy, on display in the east grand stairway, House wing, United States Capitol.

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

Our Founding Fathers did not create a government or craft a constitution to serve government’s interests or even their own narrow interests. They created a government that focused on securing the liberty of the American people and that strictly limited and checked the power of the federal government. They had a great deal of experience with government that existed for the primary purpose of advancing the interests of those who already had tremendous political power.

They had experienced the tyranny of the British Crown. In the Broadway play “Hamilton,” King George sings, “And when push comes to shove, I will send a fully armed battalion to remind you of my love” and “when push comes to shove, I will kill your friends and family to remind you of my love.” While those exact words were not likely uttered by King George, that was what he did in practice. It also reveals the way so many rulers treated their subjects throughout history.

Our Founders specifically rejected this model of abusive and unlimited government. Virtually every government in recorded history either started out, or became first and foremost about increasing and preserving its own power, influence and prestige at the expense of its subjects. Rarely has government been focused on the citizen’s freedom and opportunity. That may be the rhetoric used to obtain or retain power, but it has rarely been the actual focus of government.

Every dictator in history has made promises of using the power that he sought for the benefit of the people. But virtually none of them have actually done it. It has always been a talking point, but not an action point. Whether it was Mao or Lenin, Hitler or  Mussolini, Castro or Chavez, or the Ayatollah, they all promised to create a more equal and just society, and to right past wrongs. But, of course, history records that they magnified and multiplied the wrongs and made society far worse. They created societies of increased brutality, misery, and poverty.

In contrast, America’s Founders wrote a constitution that limited the power of government — even though they knew that they would likely be the early presidents, cabinet secretaries, congressmen and senators. In other words, they wrote a constitution that limited their own power. That proves they were not cut from the same cloth as most of the rulers we read about in history books. They formed a government designed to limit and check governmental power, but keep the people as free as possible from government’s arbitrary edicts and mandates.

Some argue that one of the weaknesses of our Constitution is that it is difficult and sometimes cumbersome to get things done. But that wasn’t by accident. It was by design. Our Founders understood that government’s power to do evil and to compromise and abridge the natural rights of its citizens was far more significant than the likelihood that government power, if left unchecked, would be used to benefit the citizenry or preserve their freedoms.

So our Founders wisely placed limits on their own power. They did this because they wanted to create a society where the freedoms and the opportunities available to the citizenry were virtually unlimited. They did not see themselves as rulers and American citizens as their subjects. They saw themselves as having been temporarily entrusted with limited powers to govern, not rule; and they saw Americans as citizens, not subjects.

George Washington, the president of the constitutional convention where our Constitution was written, debated and passed, and our nation’s first president, refused to be called by the titles that many of the kings and powerful were called in Europe. He said “No” to being called His Highness, His Excellency, His Mightiness, His Elective Majesty, among others. He said his title should be “Mr. President.”

At that time, those of power and wealth had titles — Lord, Duke, His Grace, etc. In contrast, a person of common station, with no real societal power, was referred to simply as Mister. And that is the title that George Washington chose to emphasize that the government they were forming wasn’t there to benefit those who held office, but to guarantee freedom and opportunity to its people.

But it wasn’t merely George Washington who rejected the historical political power model of Europe. The Founders as a group wanted to build a society whose foundation included the principles of self-government, but that also didn’t subject our basic rights to the popular vote. Simply stated, the Bill of Rights makes it clear that even if the vast majority of Americans don’t like what you’re saying or writing, you have the right to say it or write it.

Even if the majority dislikes you, you have the right to due process and a fair trial if you’re accused of a crime. Even if the government wants your property and claims to need it for the public good, it may not take it from you without paying you for its value. The Bill of Rights, properly understood, is not a statement of rights as much as it is a firm prohibition against government and the majority trying to abridge our God-given rights. So our Founders crafted a government designed to empower the people through majoritarian processes, but also protected our rights — placing them beyond the power of a popular vote or the power of government to abridge.

If we think about the type of constitution that most people throughout history who have aspired to power would write, we would see few limits on their power and a great deal of limits on the people and their rights. But our Founders were very different and that made a huge difference in the sort of nation the United States of America became.

It was John Adams, our nation’s second president and a crucial Founder, who said in a letter, “We ought to consider, what is the end of government, before we determine which is the best form.” [1] And the Founders did precisely that. They thought about what they wanted America to become — a land of freedom and opportunity for its citizens — and carefully crafted a constitution to accomplish that goal. This is proof positive that our Founders were very different from most of history’s politically powerful figures.

Our Founders understood the fundamental importance of limiting the power of government and leaving the people free to govern the details of their own lives. As James Madison said in the Federalist Papers, Number 51,

“If Men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and the next place, oblige it to control itself.”

Throughout history, governments had whatever powers they could get away with exercising — including genocide and murder of the masses. But our Founders designed a government that would be the foundation for a civil society of order and peace, but anywhere beyond that, government was forced to limit itself and its actions.

This has made all the difference and launched America to greatness. This approach made Americans the freest, most prosperous people in the world. People clamor to come to America from all over the globe because they see it as a shining city on a hill and as a land of opportunity. When the power of the government is constitutionally limited, the freedoms and opportunities of the people are maximized and the people thrive rather than merely survive.

Our Founders got it right — they didn’t build a government to benefit themselves or make government all-powerful. They carefully crafted a constitution that made Americans free, protected their rights, and made opportunity a key feature of the nation. That makes our Founders unique in history and we owe them a debt of gratitude.

George Landrith is the President of Frontiers of Freedom. Frontiers of Freedom, founded in 1995 by U.S. Senator Malcolm Wallop, is an educational foundation whose mission is to promote the principles of individual freedom, peace through strength, limited government, free enterprise, free markets, and traditional American values as found in the Constitution and the Declaration of Independence.

[1] John Adams, Thoughts on Government, in a letter in reply to William Hooper 1742-1790, North Carolina Continental Congress Delegate and John Penn 1740-1788, North Carolina Continental Congress Delegate, April 1776. https://teachingamericanhistory.org/document/thoughts-on-government-2/

Further reading:

Papers of John Adams, volume 4, III Thoughts on Government, Massachusetts Historical Society

https://www.masshist.org/publications/adams-papers/index.php/view/ADMS-06-04-02-0026-0004

The Works of John Adams, vol. 4. Part of The Works of John Adams, 10 vols. A 10 volume collection of Adams’ most important writings, letters, and state papers, edited by his grandson. Vol. 4 contains Novanglus, Thoughts on Government, and Defence of the Constitution. https://oll.libertyfund.org/title/adams-the-works-of-john-adams-vol-4

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Introduction: First Principles of the American Founding

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Guest Essayist: Adam Carrington


Essay Read by Constituting America Founder, Actress Janine Turner

 

 

What are principles? We speak of them often in politics, history, philosophy, and other fields of study. We praise those who have them, or at least those with which we agree, and criticize those who lack them altogether.

Simply put, principles articulate a standard. This standard carries a certain authority, providing a measure by which to judge thoughts, words, and deeds.

We need principles to answer questions regarding the thoughts, words, and actions of ourselves and our fellow human beings. We want to know whether they are true or false, just or unjust, advantageous or not. Principles help us to know better what is and what should be.

First principles, then, answer not just any questions. They are first in two ways. One, they come first chronologically. We must address them before we can move on to other subjects dependent upon them. Second, first principles deal with the most important matters. In politics, they address the fundamental concerns of and set the essential standards for a political community.

The American Founding was an exercise in articulating, debating, and implementing political first principles. The Continental Congresses did so in debating with England and declaring independence. The Convention of 1787 in Philadelphia did so in crafting the Constitution to replace the Articles of Confederation. And state ratifying assemblies all engaged in debate and decision regarding this document, resulting in its ratification.

We should know the underlying questions and resulting principles animating these discussions, documents, and decisions. First, the Founders discussed who should rule: one king, a few aristocrats, or the people. This question itself rested on another, namely whether or not all humans were inherently equal and thus the place of consent in legitimate rule. It consequently touched on the institution of slavery, race, the role of women in society, and more.

Second, the Founders addressed the right ends or goals for rule. Do governments exist for the good of the ruler or of the governed? Should laws merely protect from harm or inculcate virtue? Where do rights ultimately come from, social convention, human statute, or natural law? These matters also required addressing linked issues such as the purposes of human life, the limits of education, and the relationship between religion and politics. It demanded a reckoning on the good and bad of human nature.

Third and finally, the Founders considered how to structure and run government. This point depended heavily on the answers to the first two sets of questions. Who ruled and for what purposes dictated much regarding the institutions and processes a just government involved. But those sets depended for their efficacy on this one. Government must be good at its job and limited only to that job. How the Constitution structured lawmaking and law enforcement mattered immensely to how well America’s governments would realize their intended goals and reflect the country’s ultimate rulers. Should we divide political power among state and national governments, thereby establishing a system of federalism? On what principles would that division be made and maintained? What about within particular governments? Should we have a separation of powers among independent institutions and, if so, based on what functions of political action? Moreover, what should the lawmaking process involve? How should we select judges? These and more the Founders debated and decided on the intellectual and practical road that led to our Constitution’s creation, ratification, and implementation.

In returning to this history and these principles, we must remember none of it started in 1787 or even 1776. The Founders partook of a discussion and a history stretching back throughout recorded human history, from Ancient Greece and Rome to Medieval Christendom and post- Reformation England. They knew this history and reacted to it in their own thoughts as well as deeds. In addition, they did not all perfectly agree with each other, whether about that history or about what should be done in their own time. Their debates helped refine the resulting principles, institutions, and practices that make up our history and continue to add definition to our own time.

Over the course of this series, we will explore the roots, debates, and reasoning of America’s first principles. Thus, we will enter the great discussion in which they made such a lasting and magnificent contribution. We will see something essential about our past and our present. In the process, we will learn better how to take these principles and apply them for our future. Please join us on that journey better to know our Constitution, our country, and ourselves.

Adam M. Carrington is an Associate Professor of Politics at Hillsdale College. There, he teaches on matters of Constitutional law, American political institutions, and separation of powers. His writing has appeared in such popular forums as The Wall Street Journal, The Hill, National Review, and Washington Examiner. His book on the jurisprudence of Justice Stephen Field was published in 2017 by Lexington. Carrington received his B.A. from Ashland University and his M.A. and Ph.D. from Baylor University. He lives in Hillsdale with his wife and their two daughters.

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Keeping the Republic: America’s Founders on the United States Constitution and Upholding Tradition, Continuity, Virtue and Stability of Good Government

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Guest Essayist: Joerg Knipprath
Signing of the Constitution - Independence Hall in Philadelphia on September 17, 1787, painting by Howard Chandler Christy, on display in the east grand stairway, House wing, United States Capitol.


The United States Constitution is the product of a process which attempted to address perceived inadequacies of the Articles of Confederation in dealing with practical problems of governance. Its writers sought to provide practical solutions, shaped by their experiences. On that matter, it was irrelevant whether the Philadelphia Convention technically acted outside its charge from the states and the Confederation Congress and produced a revolutionary new charter, which argument James Madison disputed in The Federalist, No. 40, or whether the Constitution was a mere extension of the Articles and “consist[ed] much less in the addition of NEW POWERS to the union, than in the invigoration of its ORIGINAL POWERS,” as he averred in essay No. 45.

There are numerous devices in the Constitution to frustrate utopian schemes. Most of them are structural. The drafters understood that utopian schemes were more likely to succeed in smaller and more homogeneous communities. Madison in The Federalist, No. 10, identified the problem as one of faction, where members of a community joined by a common passion to gain power. Derived from the natural inequalities among human beings, factions are a foreseeable part of society. While democracies are most susceptible to control by an entrenched faction, small republics are not immune. The danger somewhat abates across a state but is least likely to occur in the nation and within its general government. As he explained. Vividly:

The influence of factious leaders may kindle a flame within their particular states, but will be unable to spread a general conflagration through the other states: a religious sect may degenerate into a political faction in a part of the confederacy; but the variety of sects dispersed over the entire face of it, must secure the national councils against any danger from that source: a rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the union than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district, than an entire state.

Madison continued along the same vein in essay No. 51, “In the extended republic of the United States, and among the great variety of interests, parties, and sects, which it embraces, a coalition of the majority of the whole society could seldom take place upon any other principles, than those of justice and the general good …. And happily for the republican cause, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the federal principle.” [Emphasis in the original.]

In Madison’s view, emergence of a permanent majority faction was more concerning, as minority factions would be controlled through majority voting. Fortunately, the diversity of religious, economic, ethnic, and customary influences creates shifting alliances among various factions, none of which would become an established majority at the national level. This creates a protective moat for society against dangers from radical policies which one faction might seek to impose on the country. In addition, the structural balance of formal constitutional powers between the national government and the states, further prevents any utopian faction in one state from readily spreading to another. This “federal” structure is enhanced by what Madison considered to be the adoption within the Constitution of the principle of subsidiarity, that is, that most political matters would be handled at the lowest level of political units, rather than by Congress.

In essay No. 51, Madison also explained another protection against a radical utopian faction gaining hold of the national government, the separation of powers. That separation consists of two parts in the Constitution, namely, provisions which guarantee to each of the branches a degree of immunity and independence from the other, as well as provisions which create a blending and overlapping of functions and require the different branches to collaborate to create policy. Examples of the first group of provisions are the control each branch of Congress has over its membership and the immunity of its members from prosecution for debates in Congress; the President’s privilege to withhold information from the other branches protected under, among other sources, the “executive power” clause; and the Supreme Court’s tenure during “good Behavior.” Examples of the second are the Congress’s power of the purse, the requirement that both chambers agree to the same legislation, the President’s qualified veto over legislation, and the Court’s power of judicial review. These protections help guard against rash policies and, as Alexander Hamilton phrased it in The Federalist, No. 78, “dangerous innovations in the government, and serious oppressions of the minor party in the community.” Moreover, many state constitutions incorporate similar principles of separate, yet overlapping, powers.

Leaving aside the unelected judiciary, the selection process for these positions supports the protection against radical utopian factions. Much of the operation of the political system under the Constitution, as distinct from its substantive powers, is ultimately founded in the federal system of states. Madison addressed the complex interrelationship between national and federal characteristics of the Constitution in The Federalist, No. 39. The people elect the House of Representatives, and representation is apportioned among the states on the basis of population, which are “national” characteristics. However, the states respectively determine the qualifications of the voters through their control over the electoral franchise for their own legislatures. Moreover, each state is guaranteed at least one seat, so even the population basis of the House is qualified by the existence of the states. The Senate is organized on the basis of the equality of the states in their corporate political capacities, a “federal” characteristic, and members originally were elected by the state legislatures. The president is selected by a body which is based on allocations of electoral votes among the states through a combination of population and state equality. Moreover, these electors are selected by the state legislators. As Madison explained in essay No. 39, the eventual election of the president was expected to be made by the House of Representatives, but on that occasion voting by state delegations.

The state-centric nature of these operative aspects of the constitutional structure helps diffuse power among various constituencies within a state and among different states. House members today are typically elected in single-member districts, whose constituents might be quite diverse from district to district. As originally envisioned, presidential candidates were selected by electors through a national, or at least regional, frame of reference. With the advent of modern political parties and the demographic changes over the past century, the president today is elected by a national constituency. Still, having to gain the endorsement of one of the two major political parties by having to appeal to different types of constituencies complicates the efforts of a radical faction’s candidate to gain sufficient power to orient the nation’s policies in a utopian direction. Political pragmatism and compromise is the inertia within the system.

One might add to these constitutional rules others of a more institutional origin. One such device which protects against utopian projects by a majority faction is the Senate’s “filibuster” rule. Another is the collection of arcane parliamentary procedures in the houses of Congress which can be used to derail or moderate legislation. Yet another is the committee structure and, at least in the past, the seniority system for chairmanships when powerful committee chairmen could frustrate the demands of the majority.

The problem with this presentation of a system of machine-like operation under clear constitutional rules that create a carefully-calibrated balance among various political actors, all while allowing government to function, yet protecting minority rights and guarding against dangerous utopian tendencies, is that it flatters irrationally. Seeing the political system only through the technical functioning of the rules is slanted and presents what one might call a “utopian” view. In fact, a hard look at the current system is needed to see how differently it operates.

At the level of national versus state governments, both consume a vastly greater percentage of Gross Domestic Product than a century ago, never mind two centuries ago. The national government’s share in particular has increased manifold. The national debt is at a record peacetime high in relation to GDP. The current use of debt by all levels of government would make the schemers in the state governments of the 1780s blanch. Congress today uses its legislative powers over interstate commerce, taxing, and spending to intrude into the most local and personal activities. Madison’s explanation in essay No. 39 of The Federalist that the national government’s jurisdiction extends to only a few enumerated ends, while the states have “a residual and inviolable sovereignty over all other objects” seems quaint and quizzical. Indeed, the very concept of residual state sovereignty has been neutered through Congress’s use of its taxing and spending powers, just as the Anti-federalists predicted and Hamilton attempted to refute in essays No. 32 and 33 of The Federalist. Prodigious government grants of money are a lifeline for much academic research, and those funds are readily applied to advance utopian projects by their recipients. As to legislation at the state and local levels, the ubiquity of laws far surpasses that of the earlier time, a product perhaps of a more complex society or the fact that legislating has become a full-time occupation for many politicians today.

As to the separation of powers, the contrast between the Constitution’s text and the operation of the system is if anything, starker. The proliferation of “alphabet agencies,” unencumbered by doctrines of separated functions, make rules, enforce them, and adjudicate violations of those rules in formally civil, but functionally criminal, proceedings. Those rules, adopted by generally unaccountable “independent” commissioners, administered by career functionaries, and virtually immune from judicial challenge, constitute the vast majority of the American corpus juris. There has been significant research into the political tactic of “regulatory capture,” whereby private entities, be they businesses, unions, or ideological “NGOs” (Non-Governmental Organizations) effectively take control of regulatory agencies. The danger with the last of these is that they often pursue utopian agendas behind the label “public interest,” rather than the more prosaic economic benefits to which the first two usually direct themselves.

There has been a concomitant expansion of executive power. The growth of the White House budget for various in-house offices, agencies, and directors which often parallel the domains of the formal constitutional departments, yet are independent of them, is one measure. As well, vast delegations of authority by Congress to the executive branch occurred as early as the Woodrow Wilson administration. The Supreme Court took some desultory steps against such delegations during the 1930s. Justice Felix Frankfurter warned about the expansion of executive power in his concurrence in Youngstown Sheet & Tube v. Sawyer, the famous Steel Seizure Case in 1952. Yet the Supreme Court has not struck down such a delegation in nearly a century. Some of this delegation, as well as broad ritualistic claims of inherent executive authority, arose in connection with war or other emergencies. Unsurprisingly, those powers continued during peace. A claim of discretionary power to act in emergencies inevitably produces more claims of emergencies. As shown by quite recent history, similar displays of broad executive power and uncontrolled administrative governance are part and parcel of state and local systems, as well.

As to constitutional barriers to utopianism provided by the electoral structure, or institutional barriers through the filibuster, one must wonder about their continued efficacy. Gerrymandering of districts has produced many “safe” partisan districts, where primary elections control the eventual outcome. Primary elections—or local party caucuses—attract the most ideologically committed participants. Such gerrymandering has been blamed for the election of candidates committed to ideologically pure, but practically harmful, utopian policies.

The mobility of American society and the advances in communications technology and entertainment have challenged Madison’s basic assumption about the diversity of interest groups rooted in different geographical areas. The electorate has become much more homogeneous and “national,” so that a nation-wide electoral majority might degenerate into an ideological faction similar to what Madison described was the danger in a local democracy. Candidates, too, are less dependent on the moderating influences of party organization. One need only to consider the emergence of billionaire-politicians and celebrity-politicians who can use their money or status to capture a party’s nomination and, subsequently, the office, without the support of the party’s established apparatus. Institutional restraints, such as the filibuster, have been weakened and are threatened with elimination, which would further undermine protections against a bare majority faction in Congress imposing utopian projects on the country.

Madison dismissed the dangers of a minority faction controlling Congress because of the “republican principle” of majority vote. But a minority faction driven by utopian fervor is much more likely to coalesce than a majority, and Madison’s faith in the vote is too blind to that danger. It has long been established that an ideologically committed organized minority can control an unorganized majority in politics or otherwise. The large economic or psychological benefits of a policy to the members of the minority outweigh the proportionally smaller costs to each member of the majority. With the increased and hidden power of unelected entities described earlier, the danger becomes more acute. One example should suffice: Before his inauguration, President-elect Donald Trump challenged leaked, unsubstantiated claims by American intelligence agencies that Russia had hacked the 2016 election. Senator Charles Schumer then warned President Trump, “You take on the intelligence community—they have six ways from Sunday at getting back at you.” Schumer was not alone in that prognosis. The specter of the hidden intelligence apparatus undermining the president in pursuit of an ideological objective has been raised many times over the past decades and is in direct conflict with the constitutional order.

In similar manner, the doctrine of judicial review has increasingly been used to advance constitutional novelties. The Constitution provides a formal amendment process, based on broad super-majoritarian approval that is, in Madison’s description, partly federal and partly national. It requires broad consensus in Congress and among the people or legislatures of the states. There has also developed an informal amendment process which retains elements of popular approval and consensus. For example, when Congress passes a law, the president signs it, and there is no successful constitutional challenge brought to the law in the courts, continued and open adherence to that law by the people over time makes that law’s political essence part of the constitutional fabric. A similar development occurs if a significant number of states pass laws respecting a particular matter of state control, if those laws do not conflict with a clear constitutional provision. A constitutional challenge to such well-established laws years later ordinarily should be rejected, because, as Hamilton stated, the purpose of judicial review is to prevent sudden popular passions from passing laws which violate established constitutional rules and threaten individual rights.

In that sense, judicial review is “conservative.” Judicial review is not intended to have five unelected judges decree a novel constitutional order by overturning long-established laws. That is the function of lawmakers in legislatures or constitutional conventions. Yet, the Supreme Court at times has taken on that function by discovering fanciful, previously unheard-of constitutional meaning in ambiguous clauses. These discoveries typically reflect the views of a narrow socio-political elite more than those of the citizenry at large. An ideologically committed minority faction is thus able to impose its utopian vision on the majority.

One can easily come up with more examples of current functional weaknesses and dysfunctions in the constitutional system described by the writers of The Federalist. The Anti-federalists broadly predicted many of the current developments, although it is to be doubted that their proposals, to the extent they had any, would have worked better to preserve the republican nature of the original order. Nor is it to be understood that all changes are necessarily bad. One might well agree with the social benefit of some of the constitutional innovations from the Supreme Court, yet be concerned about the way in which those changes came about. One might accept that some of the actions of the unelected agencies have been for the public good, yet worry about the threat to republican self-government posed by the bureaucratic state of self-declared “experts.” One might favor certain policies enacted into law by Congress, yet question the desirability of a system which increasingly micromanages life from thousands of miles away.

There are many ominous signs which suggest that we have lost our republican form of government as envisioned by the Framers. What we have left, it often appears, are certain trappings and rituals, much as happened with the Roman senate and other republican institutions during the Roman Empire and beyond. Perhaps the classic expositors of republics were right, that such a form of government cannot exist over a large area with many diverse groups of people. Perhaps Madison’s faith in the representative system was shaped by an implicit acceptance of the Aristotelian assumption that self-government was possible only in a community small enough that one could speak of “friendship.” There was much debate among classic writers about the size limits of community. One person did not make a polis. With 100,000, one no longer had a polis. At the time of the Philadelphia Convention, the largest state, Virginia, had a population over 800,000, including slaves. The next largest, Pennsylvania, had under 500,000. The debate over proper-sized districts for the House of Representatives, the most “republican” part of the government, settled the number at 30,000 residents per representative. The Anti-federalists challenged this ratio as too high and unrepublican by pointing out that in Pennsylvania’s state legislature, the ratio was one representative for each four to five thousand residents. Madison replied in essay No. 55 that the House of Representatives would only deal with national matters which do not require particular knowledge of local affairs or connection to specific local sentiments. Today, each congressional district approaches the then-population of Virginia, and the Congress regularly passes laws which have profound local effects. Whether or not Aristotle was correct about the precise limits of “community,” surely it beggars belief to say that today’s congressional districts are republican in anything but name.

Long tenures in office were another danger, according to republicans. The Articles of Confederation limited the number of terms a member of Congress could serve. The Constitution does not. Hence it is common for representatives to spend decades in office, which results in part from the difficulty of ousting incumbents in large districts gerrymandered to protect them. It is problematic to claim that such effective life tenures are “republican.”

Another important role in republican systems is played by various non-governmental social associations, such as the family, religious institutions, unions, and charitable groups. The 18th-century Anglo-Irish philosopher and politician Edmund Burke centered his theory of constitutional stability on the vitality of such institutions, which represent tradition and continuity and thereby guard against radicalism and turmoil. Burke was quite familiar to Americans for his vindications of their political claims before and during the Revolutionary War. He contrasted the stability of the English constitutional system with the situation in France. He was horrified by the violence of the French Revolution which grew from its utopian radicalism. It is inevitably the object of totalitarian governments to destroy or subjugate such intermediary institutions which threaten the power of the state over the people.

One must consider, then, some uncomfortable topics. To what extent has the American family structure been undermined by divorce, single parenthood, and various incentives created through the welfare state? How significant are religious institutions in the life of Americans today compared with preceding generations? With the exception of public employee unions, how significant are labor unions today? The same question must be asked about the vitality of local business associations and related service clubs, which played such significant roles in communities in the past.

The great Northwest Ordinance of 1787 declared, “Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools, and the means of education shall forever be encouraged.” This goal reflects the inculcation of private virtue which the different groups of American republicans agreed were a necessary basis for the preservation of republican government, even if some argued that it was not a sufficient basis. Are educational institutions fulfilling their task of teaching the heritage, morals, and substantive knowledge upon which the founding generation staked the success of their republic, or has the radicals’ long march through those institutions corrupted that mission?

Is the current dynamic of identity politics leading us to a dangerous tribalism which tears the social bonds necessary for a stable and peaceful community? If factions are the bane of republican systems, will the stress of this anarchic impetus ultimately lead to a collapse into the tyranny which the Anti-federalists feared?

If freedom of the press is needed for “republican form of government,” are the media providing useful information to the public or at least performing their self-appointed task of bravely and indiscriminately “speaking truth to power”? Or have they become so ideologically blinded to convince themselves of the righteousness of their quest to indoctrinate the public, that they have vindicated Thomas Jefferson’s indictment of the press in his 1807 letter to John Norvell, “Nothing can now be believed which is seen in a newspaper. Truth itself becomes suspicious by being put into that polluted vehicle….The man who never looks into a newspaper is better informed than he who reads them, inasmuch as he who knows nothing is nearer to truth than he whose mind is filled with falsehoods and errors.”

Many of these dysfunctions were spawned by utopian schemers who without thought or hesitation cast aside rules and institutions forged in human experience. They failed to heed G.K. Chesterton’s warning in his parable of the fence built across a road not to tear it down until one clearly understands why it was erected in the first place.

As explored over these 90 sessions, the Constitution’s drafters constructed a framework of republican government and the means to preserve it. The structural components of the system, functioning as intended, assist that task. However, the Framers understood their own fallibility and the fragility of their creation. The Constitution is just a parchment. To give it life requires the attention of a civically militant citizenry committed to the preservation and functioning of its parts. That is the politics of the true “living constitution.” And, as has been said, politics is downstream from culture. The French philosopher Joseph de Maistre pungently observed, “Every nation gets the government it deserves.” Although his comment was about Russia, it would have particular relevance for a republic. Likewise, in his famous aphorism, Benjamin Franklin did not just say to Mrs. Elizabeth Powel that the convention had produced a republic. He added, wittily but ominously, “if you can keep it.” The question is whether the American people continue to be up to the challenge.

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

 

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The Genius of America – A Journey Into Our Republic: A Study on Alexis de Tocqueville’s Democracy In America (Web)

Essays are published each Monday and Thursday, beginning Monday, September 2, 2024. The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Leave a comment on an essay on our website, and you will automatically be entered into a weekly drawing for a free copy of Democracy in America! 

Essay 1: Author’s Introduction / Background On De Tocqueville
Guest Essayist: Pete Peterson, Dean of Pepperdine University School of Public Policy

Essay 2: External Configuration Of Northern America (Vol. 1 Pt. 1 Ch. 1)
Guest Essayist: Dan Cotter – Past President of the Chicago Bar Association & author of The Chief Justices

Essay 3: On The Point of Departure and Its Importance for the Future of the Anglo-Americans (Vol. 1 Pt. 1 Ch. 2)
Guest Essayist: Tony Williams, Senior Teaching Fellow at the Bill of Rights Institute

Essay 4: Social State Of The Anglo-Americans (Vol. 1 Pt. 1 Ch. 3)
Guest Essayist: Joerg Knipprath, Professor at Southwestern Law School

Essay 5: On The Principle Of The Sovereignty Of The People In America (Vol. 1 Pt. 1 Ch. 4)
Guest Essayist: Andrew Langer, President of the Institute for Liberty

Essay 6: Necessity of Studying What Takes Place in the Particular States before Speaking of the Government of the Union (Vol. 1 Pt. 1 Ch. 5, Subchs. 1-5)

  • The American Township System
  • Limits of the Township
  • Powers of the Township in New England
  • Life in the Townships
  • The Spirit of the Township in New England

Guest Essayist: Raul Rodriguez – Dean’s Research Associate in Political Science at Michigan State University

Essay 7: Necessity of Studying What Takes Place in the Particular States before Speaking of the Government of the Union  (Vol. 1 Pt. 1 Ch. 5, Subchs. 6-8)

  • The Counties of New England
  • Administration in New England
  • General Ideas Concerning Administration in the United States

Guest Essayist: Charles Hurt – Opinion Editor and a columnist for The Washington Times

Essay 8: Necessity of Studying What Takes Place in the Particular States before Speaking of the Government of the Union (Vol. 1 Pt. 1 Ch. 5, Subchs. 9-11)

  • The State
  • Legislative Power of the State
  • The Executive Power of the State

Guest Essayist: Scot Faulkner – Former Chief Administrative Officer of the U.S. House of Representatives

Essay 9: Necessity of Studying What Takes Place in the Particular States before Speaking of the Government of the Union (Vol. 1 Pt. 1 Ch. 5, Subch. 12)

  • Political Effects Of Administrative Decentralization In The United States

Guest Essayist: Jay McConville – Constituting America Board Member, Management Professional, PhD candidate, L. Douglas Wilder School of Public Affairs, Virginia Commonwealth University

Essay 10: On Judicial Power in the United States and Its Action on Political Society (Vol. 1 Pt. 1 Ch. 6)
Guest Essayist: Kevin Gutzman – Professor of History at Western Connecticut State University

Essay 11: On Political Judgment in the United States (Vol. 1 Pt. 1 Ch. 7)
Guest Essayist: Andrea Criswell – High School Social Studies Teacher

Essay 12: The Federal Constitution (Vol. 1 Pt. 1 Ch. 8, Subchs. 1-4)

  • Historical Review Of The Federal Constitution
  • Brief Description Of The Federal Constitution
  • Powers Of The Federal Government
  • Federal Powers

Guest Essayist: Robert Lowry Clinton – Professor Emeritus at Southern Illinois University Carbondale

Essay 13: The Federal Constitution (Vol. 1 Pt. 1 Ch. 8, Subchs. 5-6)

  • Legislative Powers
  • Another Difference Between The Senate And The House Of Representatives

Guest Essayist: Christopher Burkett – Associate Professor of Political Science at Ashland University

Essay 14: On the Federal Constitution (Vol. 1 Pt. 1 Ch. 8, Subchs. 7-10)

  • The Executive Power
  • How The Position Of The President Of The United States Differs From That Of A Constitutional King Of France
  • Accidental Causes Which Can Increase The Influence Of Executive Power
  • Why The President Of The United States Has No Need To Have A Majority In The Two Houses In Order To Conduct Business

Guest Essayist: Dr. Robert Brescia – 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

Essay 15: On the Federal Constitution (Vol. 1 Pt. 1 Ch. 8, Subchs. 11-14)

  • The Election Of The President
  • Method Of Election
  • Crisis Of The Election
  • Re-Election Of The President

Guest Essayist: Tara Ross – Author and Electoral College Expert

Essay 16: On the Federal Constitution (Vol. 1 Pt. 1 Ch. 8, Subchs. 15-19)

  • The Federal Courts Of Justice
  • Means Of Determining The Jurisdiction Of The Federal Courts
  • Different Cases Of Jurisdiction
  • Procedure Of The Federal Courts
  • High Standing Of The Supreme Court Among The Great Powers Of The State

Guest Essayist: Eric Wise – Partner at Alston & Bird

Essay 17: On the Federal Constitution (Vol. 1 Pt. 1 Ch. 8, Subch. 20)

  • How The Federal Constitution Is Superior To That Of The States

Guest Essayist: Adam Carrington – Assistant Professor of Politics at Hillsdale College

Essay 18: On the Federal Constitution (Vol. 1 Pt. 1 Ch. 8, Subch. 21)

  • What Distinguishes The Federal Constitution Of The United States From All Other Federal Constitutions

Guest Essayist: Marc Clauson – Professor of History and Law at Cedarville University

Essay 19: On the Federal Constitution (Vol. 1 Pt. 1 Ch. 8, Subch. 22)

  • Advantages Of The Federal System In General And Its Special Usefulness In America

Guest Essayist: Will Morrisey – Professor Emeritus of Politics at Hillsdale College

Essay 20: On the Distinctiveness of American Federalism (Vol. 1 Pt. 1 Ch. 8, Subch. 23)

  • Why The Federal System Is Not Within The Grasp Of All Nations And What Has Allowed The Anglo-Americans To Adopt It

Guest Essayist: Joseph M. Knippenberg – Professor of Politics and Politics Program Coordinator at Oglethorpe University

Essay 21: Why It Can Be Firmly Stated That In The United States It Is The People Who Govern (Vol. 1 Pt. 2 Ch. 1)
Guest Essayist: Peter Roff – Newsweek Contributing Editor and Columnist

Essay 22: Parties In The United States (Vol. 1 Pt. 2 Ch. 2)
Guest Essayist: Horace Cooper – Senior Fellow with the National Center for Public Policy Research

Essay 23: The Freedom Of The Press In The United States (Vol. 1 Pt. 2 Ch. 3)
Guest Essayist: George Landrith – President of the Frontiers of Freedom Institute

Essay 24: Political Associations In The United States (Vol. 1 Pt. 2 Ch. 4)
Guest Essayist: Michael C. Maibach – Distinguished Fellow for Save Our States

Essay 25: Government By Democracy In America (Vol. 1 Pt. 2 Ch. 5, Subchs. 1-3)

  • Universal Suffrage
  • The People’s Choice And The Instincts Of American Democracy In Its Choices
  • Causes Which Are Able To Partly Correct These Instincts Of Democracy

Guest Essayist: Colleen Shogan – 11th Archivist of the United States

Essay 26: Government By Democracy In America (Vol. 1 Pt. 2 Ch. 5, Subchs. 4-5)

  • Influence Which American Democracy Has Exercises On Electoral Laws
  • Civil Servants Under The Control Of American Democracy

Guest Essayist: James Clinger – Professor of Political Science at Murray State University

Essay 27: Government By Democracy In America (Vol. 1 Pt. 2 Ch. 5, Subchs. 6-7)

  • The Arbitrary Power Of Magistrates Under The Sway Of American Democracy
  • Administrative Instability In The United States

Guest Essayist: Roberta Herzberg – Distinguished Senior Fellow, F. A. Hayek Program for Advanced Study in Philosophy, Politics, and Economics, Senior Research Fellow at the Mercatus Center

Essay 28: Government By Democracy In America (Vol. 1 Pt. 2 Ch. 5, Subchs. 8-11)

  • Public Expenses Under The Rule Of American Democracy
  • Instincts Of American Democracy In The Fixing Of The Salaries Of Civil Servants
  • Difficulty Of Discerning The Reasons Which Persuade The American Government Toward Economy
  • Can The Public Expenditure Of The United States Be Compared With That Of France?

Guest Essayist: Samuel Gregg – Research Director at the Acton Institute

Essay 29: Government By Democracy In America (Vol. 1 Pt. 2 Ch. 5, Subchs. 12-14)

      • Corruption And Vices Of The Rulers In A Democracy; The Resulting Effects On Public Morality
      • The Efforts Of Which Democracy Is Capable
      • The Power Which American Democracy Exercises Over Itself

Guest Essayist: Paul Carrese – Professor and founding Director at Arizona State University’s School of Civic and Economic Thought and Leadership, and Senior Fellow of the Jack Miller Center for America’s Founding Principles

Essay 30: Government By Democracy In America (Vol. 1 Pt. 2 Ch. 5, Subch. 13)

      • The Manner In Which American Democracy Conducts Foreign Affairs

Guest Essayist: Joseph A. Ledford – Hoover Fellow at the Hoover Institution

Essay 31: What Are the Real Advantages That American Society Derives From the Government of Democracy (Vol. 1 Pt. 2 Ch. 6, Subchs. 1-2)

      • The General Tendency Of Laws Under The Control Of American Democracy And The Instincts Of Those Who Apply Them
      • Public Spirit In The United States

Guest Essayist: Brenda Hafera – Assistant Director and Senior Policy Analyst at The Heritage Foundation’s Simon Center for American Studies

Essay 32: What Are the Real Advantages That American Society Derives From the Government of Democracy (Vol. 1 Pt. 2 Ch. 6, Subchs. 3-5)

      • The Idea Of Rights In The United States
      • Respect For The Law In The United States
      • Activity Reigning In Every Part Of The Body Politic In The United States And Its Influence On Society

Guest Essayist: Jason Stevens – Visiting Assistant Professor of Political Science at Ashland University

Essay 33: The Majority In The United States Is All-Powerful And The Consequences Of That (Vol. 1 Pt. 2 Ch. 7, Subchs. 1-3)

      • How In America The Omnipotence Of The Majority Increases The Legislative And Administrative Instability Natural To Democracies
      • Tyranny Of The Majority
      • Effects Of The Omnipotence Of The Majority On The Arbitrary Power Of American Public Officials

Guest Essayist: Professor Jeff Broadwater – Professor Emeritus of History at Barton College

Essay 34: The Majority In The United States Is All-Powerful And The Consequences Of That (Vol. 1 Pt. 2 Ch. 7, Subchs. 4-6)

      • The Power Exercised By The Majority In America Over Thought
      • Effects Of The Tyranny Of The Majority On American National Character; The Courtier Spirit In The United States
      • The Greatest Danger For American Republics Comes From The Omnipotence Of The Majority

Guest Essayist: Tom Hand – Founder of Americana Corner

Essay 35: What Moderates The Tyranny Of The Majority In The United States (Vol. 1 Pt. 2 Ch. 8)
Guest Essayist: Tom Hand – Founder of Americana Corner

Essay 36: The Main Causes Which Tend To Maintain A Democratic Republic In The United States (Vol. 1 Pt. 2 Ch. 9, Subch. 1)

      • Accidental Or Providential Causes Helping To Maintain The Democratic Republic In The United States

Guest Essayist: Val Crofts – Chief Education and Programs Officer at the American Village

Essay 37: The Main Causes Which Tend To Maintain A Democratic Republic In The United States (Vol. 1 Pt. 2 Ch. 9, Subchs. 2-3)

      • The Influence Of Laws On The Maintenance Of A Democratic Republic In The United States
      • The Influence Of Customs On The Maintenance Of A Democratic Republic In The United States

Guest Essayist: Stephen Tootle – Professor of History, College of the Sequoias

Essay 38: The Main Causes Which Tend To Maintain A Democratic Republic In The United States (Vol. 1 Pt. 2 Ch. 9, Subchs. 4-5)

      • Religion Considered As A Political Institution Which Powerfully Supports The Maintenance Of A Democratic Republic Among Americans
      • Indirect Influence Of Religious Beliefs Upon American Political Society

Guest Essayist: Paul McNulty – President of Grove City College

Essay 39: The Main Causes Which Tend To Maintain A Democratic Republic In The United States (Vol. 1 Pt. 2 Ch. 9, Subch. 6)

      • Main Causes For The Powerful Position Of Religion In America

Guest Essayist: Professor Benjamin Peterson – Professor at Abilene Christian University

Essay 40: The Main Causes Which Tend To Maintain A Democratic Republic In The United States (Vol. 1 Pt. 2 Ch. 9, Subch. 7)

      • How The Education, Habits And Practical Experience Of Americans Contribute To The Success Of Democratic Institutions

Guest Essayist: Tony Williams, Senior Teaching Fellow at the Bill of Rights Institute

Essay 41: The Main Causes Which Tend To Maintain A Democratic Republic In The United States (Vol. 1 Pt. 2 Ch. 9, Subch. 8)

      • Laws Contribute More To The Maintenance Of The Democratic Republic In The United States Than Physical Conditions Of The Country And Customs Even More Than Laws

Guest Essayist: Richard Epstein – Professor of Law at New York University

Essay 42: The Main Causes Which Tend To Maintain A Democratic Republic In The United States (Vol. 1 Pt. 2 Ch. 9, Subch. 9)

      • Whether Laws And Customs Would Be Enough To Maintain Democratic Institutions In Any Other Country Than America

Guest Essayist: Danny de Gracia – Political scientist, as seen on Honolulu Civil Beat, BBC News, the New York Times, USA ToEssay, U.S News & World Report, and Washington Times

Essay 43: The Main Causes Which Tend To Maintain A Democratic Republic In The United States (Vol. 1 Pt. 2 Ch. 9, Subch. 10)

      • Importance Of The Above In Relation To Europe

Guest Essayist: Will Morrisey – Professor Emeritus of Politics at Hillsdale College

Essay 44: De Tocqueville: A Few Remarks On The Present State And The Probable Future Of The Three Races Which Live In The Territory Of The United States (Vol. 1 Pt. 2 Ch. 10, Subch. 1)

      • De Tocqueville’s View: The Present State And The Probable Future Of The Indian Tribes Which Populate The Territory Of The Union

Guest Essayist: The Honorable Bob Pence – Former U.S. Ambassador to Finland

Essay 45: De Tocqueville: A Few Remarks On The Present State And The Probable Future Of The Three Races Which Live In The Territory Of The United States (Vol. 1 Pt. 2 Ch. 10, Subch. 2)

      • De Tocqueville’s View On Race Relations In The United States 

Guest Essayist: Horace Cooper – Senior Fellow with the National Center for Public Policy Research

Essay 46: De Tocqueville: A Few Remarks On The Present State And The Probable Future Of The Three Races Which Live In The Territory Of The United States (Vol. 1 Pt. 2 Ch. 10, Subch. 3)

      • What Are The Chances That The American Union Will Last? What Dangers Threaten It?

Guest Essayist: Christopher Burkett – Associate Professor of Political Science at Ashland University

Essay 47: De Tocqueville: A Few Remarks On The Present State And The Probable Future Of The Three Races Which Live In The Territory Of The United States (Vol. 1 Pt. 2 Ch. 10, Subch. 4)

      • Republican Institutions In The United States And Their Chances Of Survival

Guest Essayist: Joerg Knipprath, Professor at Southwestern Law School

Essay 48: De Tocqueville: A Few Remarks On The Present State And The Probable Future Of The Three Races Which Live In The Territory Of The United States (Vol. 1 Pt. 2 Ch. 10, Subch. 5)

      • A Few Reflections On The Reasons For The Commercial Greatness Of The United States

Guest Essayist: Andrea Criswell – High School Social Studies Teacher

Essay 49: Volume 1 Conclusion

Guest Essayist: Troy Kickler Professor and Founder of North Carolina History Project

Essay 50: Author’s Note To Volume 2

Guest Essayist: Tony Williams, Senior Teaching Fellow at the Bill of Rights Institute

Essay 51: “The Americans’ Philosophic Method” & “The Principal Source Of Beliefs Among Democratic Nations” (Vol. 2 Pt. 1 Chs. 1 & 2)

Guest Essayist: Michael S. Johnson – Author of Fixing Congress: Restoring Power to the People

Essay 52: “Why The Americans Show More Aptitude And Taste For General Ideas Than Their Forefathers The English” & “Why The Americans Have Never Been Enthusiastic As The French For General Ideas In Political Matters” (Vol. 2 Pt. 1 Chs. 3-4)

Guest Essayist: Michael S. Greve – Professor of Law at Antonin Scalia Law School

Essay 53: “How Religion In The United States Makes Full Use Of Democratic Tendencies”, “The Progress Of Catholicism In The United States” & “What Causes The Minds Of Democratic Nations To Include Toward Pantheism” (Vol. 2 Pt. 1 Chs. 5-7)

Guest Essayist: Jacob Wolf – Assistant Professor of Politics at the University of Austin

Essay 54:How Equality Suggests To Americans The Idea Of The Indefinite Perfectibility Of Man (Vol. 2 Pt. 1 Ch. 8)

Guest Essayist: Eric W. Schmidt – Associate Professor of Political Science at Kentucky Wesleyan College

Essay 55: How The Example Of The Americans Does Not Prove That A Democratic People Would Have Neither The Aptitude Nor The Taste For The Sciences, Literature, And The Arts (Vol. 2 Pt. 1 Ch. 9)

Guest Essayist: Frank Reilly – Professor at Texas Tech University

Essay 56: Why Americans Are More Attracted To Practical Rather Than Theoretical Aspects Of The Sciences (Vol. 2 Pt. 1 Ch. 10)

Guest Essayist: Antonio Sosa – Associate Director at the Civitas Institute

Essay 57: “In What Spirit The Americans Cultivate The Arts” & “Why The Americans Erect Both Insignificant Monuments And Others Which Are Very Grand” (Vol. 2 Pt. 1 Chs. 11-12)

Guest Essayist: David L. Schaefer – Professor of Political Science, Emeritus at College of the Holy Cross

Essay 58: “How Literature Appears In Democratic Times” & “The Literature Industry” (Vol. 2 Pt. 1 Chs. 13-14)

Guest Essayist: Jack Fitzhenry – Legal Fellow at the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies

Essay 59: “Why The Study Of Greek And Latin Literature Is Particularly Useful In Democratic Communities” & “How American Democracy Has Modified The English Language” (Vol. 2 Pt. 1 Chs. 15-16)

Guest Essayist: Zachary German – Assistant Professor at Arizona State University’s School of Civic and Economic Thought and Leadership

Essay 60: “A Few Sources Of Poetry In Democratic Nations”, “Why American Writers And Speakers Are Often Bombastic” & “A Few Remarks On The Theater Of Democratic Nations” (Vol. 2 Pt. 1 Chs. 17-19)

Guest Essayist: Matt Van Hook – Associate Professor at Biola University’s Torrey Honors College

Essay 61: Characteristics Peculiar To Historians In Democratic Ages (Vol. 2 Pt. 1 Ch. 20)

Guest Essayist: Trevor Shelley – Associate Director of Graduate Studies and Teaching Assistant Professor at Arizona State University’s School of Civic and Economic Thought and Leadership

Essay 62: Parliamentary Eloquence In The United States (Vol. 2 Pt. 1 Ch. 21)

Guest Essayist: Eric Wise – Partner at Alston & Bird

Essay 63: Why Democratic Nations Display A More Passionate And Lasting Love For Equality Than For Freedom (Vol. 2 Pt. 2 Ch. 1)

Guest Essayist: Jonathan Yudelman – Postdoctoral Research Scholar at Arizona State University’s School of Civic and Economic Thought and Leadership

Essay 64: Individualism In Democratic Countries (Vol. 2 Pt. 2 Ch. 2)

Guest Essayist: Jackson Barlow – Professor of Politics at Juniata College

Essay 65: How Individualism Is Greater At The End Of A Democratic Revolution Than Any Other Period (Vol. 2 Pt. 2 Ch. 3)

Guest Essayist: Jackson Barlow – Professor of Politics at Juniata College

Essay 66: How Americans Combat The Effects Of Individualism By Free Institutions (Vol. 2 Pt. 2 Ch. 4)

Guest Essayist: Benjamin Slomski – Assistant Professor of Political Science at Ashland University

Essay 67: The Use Americans Make For Public Associations In Civil Life (Vol. 2 Pt. 2 Ch. 5)

Guest Essayist: Robert E. Wright – Economics Professor at Central Michigan University

Essay 68: Connection Between Associations And Newspapers (Vol. 2 Pt. 2 Ch. 6)

Guest Essayist: John Bicknell – Author

Essay 69: Connections Between Civil And Political Associations (Vol. 2 Pt. 2 Ch. 7)

Guest Essayist: Robert John Burton – Director of Civic Thought and Leadership Initiative at Utah Valley University’s Center for Constitutional Studies

Essay 70: How Americans Counteract Individualism By The Doctrine Of Self-Interest Properly Understood (Vol. 2 Pt. 2 Ch. 8)

Guest Essayist: John D. Wilsey – Associate Professor of Church History and Philosophy; Chair, Church History Department at at The Southern Baptist Theological Seminary; Book Review Editor, The Southern Baptist Journal of Theology

Essay 71: How Americans Apply The Doctrine Of Self-Interest Properly Understood To Religious Matters (Vol. 2 Pt. 2 Ch. 9)

Guest Essayist: Kevin Vance – Director of the Center for Constitutional Liberty at Benedictine College

Essay 72: “The Taste For Material Prosperity In America” & “Particular Effects Of The Love Of Physical Pleasures In Democratic Times” (Vol. 2 Pt. 2 Chs. 10-11)

Guest Essayist: Jon Schaff – Professor of Political Science Northern State University

Essay 73: Why Certain Americans Display An Exalted Form Of Spirituality (Vol. 2 Pt. 2 Ch. 12)

Guest Essayist: Kevin Vance – Director of the Center for Constitutional Liberty at Benedictine College

Essay 74: Why Americans Are So Restless In The Midst Of Their Prosperity (Vol. 2 Pt. 2 Ch. 13)

Guest Essayist: Wilfred M. McClay – Victor Davis Hanson Chair in Classical History and Western Civilization at Hillsdale College

Essay 75: How In America The Taste For Physical Pleasures Is Combined With Love Of Freedom And Concern For Public Affairs (Vol. 2 Pt. 2 Ch. 14)

Guest Essayist: Joey Barretta – Postdoctoral Fellow and Lecturer Civitas institute, UT Austin

Essay 76: How Religious Belief Sometimes Diverts The Thoughts Of Americans Toward Spiritual Pleasures (Vol. 2 Pt. 2 Ch. 15)

Guest Essayist: Zachary K. German – Assistant Professor at Arizona State University’s School of Civic & Economic Thought & Leadership

Essay 77: How An Excessive Love Of Prosperity Can Harm That Very Prosperity (Vol. 2 Pt. 2 Ch. 16)

Guest Essayist: William Reddinger – Associate Professor of Government Regent University

Essay 78: How In Ages Of Equality And Doubt It Is Important To Move The Goal Of Human Endeavor Beyond Immediate Concerns (Vol. 2 Pt. 2 Ch. 17)

Guest Essayist: Tony Williams, Senior Teaching Fellow at the Bill of Rights Institute

Essay 79: Why Americans Consider All Honest Occupations As Honorable (Vol. 2 Pt. 2 Ch. 18)

Guest Essayist: Jeff Scott – Executive Director of Academic Operations at Troy University and Founder of Dr. Scott’s Classroom, LLC

Essay 80: “What Gives Almost All Americans A Preference For Industrial Occupations” & “How An Aristocracy May Emerge From Industry” (Vol. 2 Pt. 2 Chs. 19-20)

Guest Essayist: Melissa Matthes – Professor Religion and Politics United States Coast Guard Academy

Essay 81: “How Customs Become Softer As Social Conditions Become More Equal”, “How Democracy Makes The Normal Relations Between Americans Easier And Simples”, “Why Americans Are So Difficult To Offend At Home Yet So Easily Offended In Europe” & “Consequences Of The Three Preceding Chapters” (Vol. 2 Pt. 3 Chs. 1-4)

Guest Essayist: Frank Garmon Jr – Assistant professor of American Studies at Christopher Newport University.

Essay 82: How Democracy Alters The Relations Between Master And Servant (Vol. 2 Pt. 3 Ch. 5)

Guest Essayist: Jonathan Den Hartog – Professor of History and Chair of the History Department at Samford University in Birmingham, Alabama.

Essay 83: “How Democratic Institutions And Customs Tend To Raise The Cost And Shorten The Eleventh Of Leases”, “Influence Of Democracy On Wages” & “Influence Of Democracy On The Family” (Vol. 2 Pt. 3 Chs. 6, 7 & 8)

Guest Essayist: Jon D. Schaff – Professor of Political Science Northern State University

Essay 84: “Education Of Girls In The United States” & “How The Girl Can Be Seen Beneath The Features Of The Wife” (Vol. 2 Pt. 3 Chs. 9 & 10)

Guest Essayist: Dorothea Israel Wolfson – Program Director, Sr. Lecturer, MA in Government Program, Johns Hopkins University

Essay 85: “How The Equality Of Social Conditions Helps To Maintain Good Morals In America”, “How The American View The Equality Of Men And Women” & “How Quality Naturally Divides Americans Into A Multitude Of Small Private Societies” (Vol. 2 Pt. 3 Chs. 11-13)

Guest Essayist: The Honorable John Boehner – 53rd Speaker of the United States House of Representatives

Essay 86: Some Reflections On American Manners (Vol. 2 Pt. 3 Ch. 14)

Guest Essayist: Troy Kickler – Senior Fellow and Managing Director of the North Carolina History Curriculum Project at the John Locke Foundation

Essay 87: The Serious Attitude Of Americans And Why It Often Does Not Prevent Them From Ill Considered Actions (Vol. 2 Pt. 3 Ch. 15)

Guest Essayist: Erin Brooks-Hindman – Teaches at the College of the Holy Cross in Worcester, Massachusetts.

Essay 88: Why The National Vanity Of The Americans Is More Restless And Quarrelsome Than That Of English (Vol. 2 Pt. 3 Ch. 16)

Guest Essayist: Heather Yates – Associate professor of American politics at the University of Central Arkansas.

Essay 89: How American Society Appears Both Agitated And Monotonous (Vol. 2 Pt. 3 Ch. 17)

Guest Essayist: Kirk Higgins – Senior director of content bill of rights institute

Essay 90: Honor In The United States And In Democratic Societies (Vol. 2 Pt. 3 Ch. 18)

Guest Essayist: Edward Lee – Professor of History at Winthrop University

Essay 91: Why So Many Ambitious Men Exist In The United States But So Few Lofty Ambitions (Vol. 2 Pt. 3 Ch. 19)

Guest Essayist: Eric Sands – Associate Professor of Political Science at Berry College

Essay 92: The Trade Of Seeking Official Positions In Certain Democratic Nations (Vol. 2 Pt. 3 Ch. 20)

Guest Essayist: James P. Pinkerton, Senior Fellow, America First Policy Institute; White House Domestic Policy Staff for Presidents Ronald Reagan and George H.W. Bush; Senior Advisor to the 2008 Mike Huckabee Presidential Campaign

Essay 93: Why Great Revolutions Will Happen Less Often (Vol. 2 Pt. 3 Ch. 21)

Guest Essayist: Gary Wolfram – Professor of Economics at Hillsdale College

Essay 94: “Why Democratic Nations Have A Natural Desire For Peace And Why Democratic Armies Naturally Seek War” & “Which Is The Most Warlike And Revolutionary Class In Democratic Armies” (Vol. 2 Pt. 3 Chs. 22-23)

Guest Essayist: James S. Robbins – Columnist for USA ToEssay and Senior Fellow in National Security Affairs at the American Foreign Policy Council

Essay 95: “What Marks Democratic Armies Weaker Than Other Armies At The Outset Of A Campaign And More Dangerous In Prolonged Warfare”, “Discipline Democratic Armies” & “A Few Remarks On War In Democracies” (Vol. 2 Pt. 3 Chs. 24-26)

Guest Essayist: Paul Schwennesen – Southern Arizona Rancher and Director of the Agrarian Freedom Project

Essay 96: Equality Naturally Gives Men A Liking For Free Institutions (Vol. 2 Pt. 4 Ch. 1)

Guest Essayist: Benjamin Slomski – Assistant Professor of Political Science at Ashland University

Essay 97: The Ideas In Democratic Nations Have On Government Naturally Favor The Concentration Of Political Powers (Vol. 2 Pt. 4 Ch. 2)

Guest Essayist: Edward Lee – Professor of History at Winthrop University

Essay 98: The Opinions Of Democratic Nations Are In Accord With Their Ideas, Leading Them To Centralize Political Power (Vol. 2 Pt. 4 Ch. 3)

Guest Essayist: Randolph J. May – Founder and President of The Free State Foundation

Essay 99: A Few Special And Accidental Reasons Why A Democratic Nation Adopts Centralization Of Government Or Turns Away From It (Vol. 2 Pt. 4 Ch. 4)

Guest Essayist: Andrew Bibby – Professor at Utah Valley University

Essay 100: Among Contemporary European Nations The Sovereign Power Is Increasing Although The Rulers Are Less Stable (Vol. 2 Pt. 4 Ch. 5)

Guest Essayist: Robert Elder – Baylor University History Department

Essay 101: What Sort Of Despotism Democratic Nations Have To Fear (Vol. 2 Pt. 4 Ch. 6)

Guest Essayist: William Duncan – Director of the Marriage Law Foundation

Essay 102: Continuation Of The Preceding Chapters (Vol. 2 Pt. 4 Ch. 7)

Guest Essayist: Philip Bunn – Assistant professor of political science at Covenant College in Lookout Mountain, Georgia

Essay 103: General Survey Of The Subject (Vol. 2 Pt. 4 Ch. 8) 

Guest Essayist: Elizabeth Amato – Associate Professor of Political Science and International Affairs at Gardner-Webb University.

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First Principles of the American Founding (Web)

Essay #1 – INTRODUCTION

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Essay #2 – Principle of government exists to secure liberty of the people rather than government existing to benefit itself. “We ought to consider, what is the end of government, before we determine which is the best form.” – John Adams, Thoughts on Government, in a letter in reply to William Hooper 1742-1790, North Carolina Continental Congress Delegate and John Penn 1740-1788, North Carolina Continental Congress Delegate, written spring 1776 in reply to NC delegates Hooper and Penn requesting Adams’ considerations on republican government for America upon gaining independence from Great Britain.

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Essay #3 – Principle of regard for history, order, and tradition.

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Essay #4 – Further on drawing from history, order and tradition in the formation of America’s founding documents such as the Declaration of Independence and United States Constitution of the 1700s. In 1639, a new colony, Connecticut, later a state gaining the motto “The Constitution State,” was founded by Reverends Thomas Hooker and John Davenport. Along with others, the Fundamental Orders of Connecticut were drafted, forming what is considered the first constitution in America. “…so to order and dispose of things that we the Inhabitants and Residents of Windsor, Hartford and Wethersfield are now cohabiting and dwelling in and upon the River of Connecticut and the lands thereunto adjoining; and well knowing where a people are gathered together the word of God requires that to maintain the peace and union of such a people there should be an orderly and decent Government established…General Assemblies or Courts…Court of Election…Magistrates…liberty of speech…Governor…promote the public good and peace of the same…maintain all lawful privileges of this Commonwealth; as also that all wholesome laws that are or shall be made by lawful authority here established, be duly executed…” – segments from the Fundamental Orders of Connecticut, January 1639.

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Essay #5 – Principle of classical history discussed by the American founders for the purpose of applying its lessons toward a new and different governing system devoted to freedom and independence.

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Essay #6 – Further on the principle of classical history discussed by the American founders for the purpose of applying its lessons toward a new and different governing system devoted to freedom and independence. In 1641, the Massachusetts Body of Liberties was written by a Puritan minister, Nathaniel Ward, considered the first bill of rights in America, continuing influences gained from those such as Magna Carta and others in the 1600s and into the 1700s for American law to come, and recognizing one is born with rights no government may take away. “The free fruition of such liberties, immunities and privileges as humanity, civility, and Christianity call for as due to every man in his place and proportion without impeachment and infringement hath ever been and ever will be the tranquility and stability of churches and commonwealths. And the denial or deprival thereof, the disturbance if not the ruin of both. We hold it therefore our duty and safety whilst we are about the further establishing of this government to collect and express all such freedoms as for present we foresee may concern us, and our posterity after us, and to ratify them with our solemn consent…” – With enumerated sections, in its original English spelling, the document was entitled, A Coppie of the Liberties of the Massachusets Collonie in New England, December 1641.

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Essay #7 – Classical history and significance of republican government as adopted by the United States and its influence during the American Revolutionary War.

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Essay #8 – Principle of constitutional restraints to prevent the undermining of interests of the entire Union. The Founders’ Join or Die efforts to protect the new Union of colonies to become a United States with state governments and one federal government with limits, resulted in Benjamin Franklin’s editorial cartoon running May 9, 1754 in his Pennsylvania Gazette, a picture of a snake cut in pieces representing the colonies. It served as a warning to join together or be destroyed by opponents of America. During tumultuous events of the French and Indian War, fighting the Stamp Act, and working toward independence from Britain, Americans agreed on protecting the Union.

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Essay #9 – Principle of natural law opposition to tyranny that binds a free people together and cannot disjoin them. “When the law is the will of the people, it will be uniform and coherent: but fluctuation, contradiction, and inconsistency of councils must be expected under those governments where every revolution in the ministry of a court produces one in the state. Such being the folly and pride of all ministers, that they ever pursue measures directly opposite to those of their predecessors…We shall neither be exposed to the necessary convulsions of elective monarchies, nor to the want of wisdom, fortitude, and virtue, to which hereditary succession is liable. In your hands it will be to perpetuate a prudent, active and just legislature, and which will never expire until you yourselves lose the virtues which give it existence…Our Union is now complete; our constitution composed, established, and approved. You are now the guardians of your own liberties.” – Samuel Adams, Speech on American Independence, August 1, 1776.

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Essay #10 – Further on principle of appropriate role and purpose of government in protecting liberty of the citizenry and the function of running their own government.

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Essay #11 – Principle of educating based on ethical, philosophical self-evident truths of good government, designed for a free people, recognized as important for acquiring civic virtue. “when the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. the exemption of the judges from that is quite dangerous enough. I know no safe depository of the ultimate powers of the society, but the people themselves: and if we think them not enlightened enough to exercise their controul with a wholsome discretion, the remedy is, not to take it from them, but to inform their discretion by education. this is the true corrective of abuses of constitutional power.” – Thomas Jefferson in a letter to William Charles Jarvis, Monticello, September 28, 1820.

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Essay #12 – Principle of educating based on ethical, philosophical self-evident truths of self-government and a good system of government for the country, designed for a free people, recognized as important for securing and continuing the blessings of liberty for future generations of Americans. The New England Primer, published in 1690, served as the main textbook through the nineteenth century. It was used to educate Americans on virtue, morals, and how to read.

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Essay #13 – Principle of civic duty, civic engagement. In a letter, John Adams wrote from Philadelphia to his wife, Abigail, April 26, 1777. Battle weary, Adams stated as he closed, “Posterity! You will never know, how much it cost the present Generation, to preserve your Freedom! I hope you will make a good Use of it.” Adams hoped future Americans would accept responsibility to preserve what was being established in his day. Declaration of Independence grievance: “He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.”

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Essay #14 – Principle of civic duty to petition their own government for a redress of grievances.

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Essay #15 – Principle of civic duty to rein in overreaching government. “They tell us, sir, that we are weak; unable to cope with so formidable an adversary. But when shall we be stronger? Will it be the next week, or the next year? Will it be when we are totally disarmed, and when a British guard shall be stationed in every house?” – Patrick Henry, speech delivered at St. Johns Church, Richmond, Virginia, March 23, 1775 (“Give me liberty” quote was attributed to Patrick Henry, believed originally from William Wirt).

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Essay #16 – Principle of citizenship, love of country. “The Unity of Government which constitutes you one people is also now dear to you. It is justly so; for it is a main Pillar in the Edifice of your real independence, the support of your tranquility at home; your peace abroad; of your safety; of your prosperity; of that very Liberty which you so highly prize. But as it is easy to foresee, that from different causes and from different quarters, much pains will be taken, many artifices employed, to weaken in your minds the conviction of this truth; as 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, it is of infinite moment, that you should properly estimate the immense value of your national Union to your collective and individual happiness” – George Washington, Farewell Address, first published September 19, 1796 in Claypoole’s American Daily Advertiser and given the date September 17, 1796.

  • Principle of Citizenship and Love of Country by Tom Hand, Creator and Publisher, Americana Corner; West Point Graduate; Serves on the Board of Trustees, American Battlefield Trust and the National Park Foundation’s National Council.

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Essay #17 – Principle of America’s national sovereignty. “That these are our grievances which we have thus laid before his majesty, with that freedom of language and sentiment which becomes a free people claiming their rights, as derived from the laws of nature, and not as the gift of their chief magistrate: Let those flatter who fear; it is not an American art. To give praise which is not due might be well from the venal, but would ill beseem those who are asserting the rights of human nature. They know, and will therefore say, that kings are the servants, not the proprietors of the people.” – Thomas Jefferson in his pamphlet, “A Summary View of the Rights of British America” July 1774, Williamsburg, Virginia.

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Essay #18 – Further on principle of America’s national sovereignty upon preventing loss of independence to foreign or global governments acting as with binding authority in attempts to undermine the United States.

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Essay #19 – Principle of peace through strength. “Shall we gather strength by irresolution and inaction? Shall we acquire the means of effectual resistance, by lying supinely on our backs, and hugging the delusive phantom of hope, until our enemies shall have bound us hand and foot?…It is in vain, sir, to extenuate the matter. Gentlemen may cry, Peace, Peace but there is no peace. The war is actually begun! The next gale that sweeps from the north will bring to our ears the clash of resounding arms! Our brethren are already in the field! Why stand we here idle? What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!” – Patrick Henry, speech delivered at St. Johns Church, Richmond, Virginia, March 23, 1775 (“Give me liberty” quote was attributed to Patrick Henry, believed originally from William Wirt).

  • Principle of Peace Through Strength by Robert Brescia, Board Director, Past Chairman, Basin PBS Television; Top Leadership Roles in Education, Corporate Business, Nonprofit, and Defense; Twenty-Seven Years of Public Service as an Airborne Ranger Cavalry Soldier, NCO, Commissioned Officer, U.S. Army; Appointed by Texas Governor Greg Abbott, State Board for Educator Certification.

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Essay #20 – Principle of foreign policy based on a standard of freedom and independence. Thomas Paine, The American Crisis, December 19, 1776, Pamphlet 1, speech on “These are the times that try men’s souls” – not quitting in their fight for independence, writing how tyranny is not easily conquered, “Britain, with an army to enforce her tyranny, has declared that she has a right (not only to tax) but “to bind us in all cases whatsoever.”

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Essay #21 – Principle of Creator-endowed unalienable rights.

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Essay #22 – Principle of natural law as the foundation for constitutional law. “government by election and representation has its origin in the natural and eternal rights of man” – Thomas Paine, Dissertation on First Principles of Government, 1795.

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Essay #23 – Principle of appropriate role and purpose of government upon protection of unalienable rights, unchangeable, inherent, natural rights. The sacred rights of mankind are not to be rummaged for, among old parchments, or musty records. They are written, as with a sun beam, in the whole volume of human nature, by the hand of the divinity itself; and can never be erased or obscured by mortal power. – Alexander Hamilton in his pamphlet, The Farmer Refuted, February 23, 1775, New York.

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Essay #24 – Principle of a written United States Constitution that is the supreme law of the land, designed for the preservation of liberty for each generation of future Americans since its ratification. “…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 of another, covenant and combine our selves together into a civil body politic, for our better ordering and preservation and furtherance of the ends aforesaid; and by virtue hereof to enact, constitute, and frame such just and equal laws, ordinances, acts, constitutions and offices…” After high winds blew the ship off course landing the Pilgrims hundreds of miles off their destination, the first American document designed for self-governing, called the Mayflower Compact, was signed November 21, 1620 (November 11, old calendar) aboard the Mayflower ship at Cape Cod, what is now Massachusets. With an understanding, from experience about tyrannical rule, the early American settlers knew the importance of good governing and that a document to form it should be written for doing so themselves at the place they landed. Forty-one men signed the agreement that would help lay the framework for the new nation’s future Constitution.

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Essay #25 – Further on the principle of a written United States Constitution, a contract allowing, under strict limits, a government to run under the authority of the American people within the states. “There are in the productions of all of them, among many excellent things, some sentiments, however, that it will be difficult to reconcile to reason, experience, the constitution of human nature, or to the uniform testimony of the greatest statesmen, legislators, and philosophers of all enlightened nations, ancient and modern.” – John Adams in his 1787-1877 A Defense of the Constitution of Government of the United States of America, Letter I, Volume I, Preliminary Observations, Grosvenor-Square, October 4, 1786, part of a three-volume response sparked by a 1778 letter degrading American constitutions as not enough in republican form for the people to remain in control but were only repeating dictatorships America was trying to escape. Adams argues this is not the case.

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Essay #26 – Principle of self-governing. “Let us also be mindful that the cause of freedom greatly depends on the use we make of the singular opportunities we enjoy of governing ourselves wisely; for if the event should prove, that the people of this country either cannot or will not govern themselves, who will hereafter be advocates for systems, which however charming in theory and prospect, are not reducible to practice. If the people of our nation, instead of consenting to be governed by laws of their own making, and rulers of their own choosing, should let licentiousness, disorder, and confusion reign over them, the minds of men every where, will insensibly become alienated from republican forms, and prepared to prefer and acquiesce in Governments, which, though less friendly to liberty, afford more peace and security…Receive this Address with the same candor with which it is written; and may the spirit of wisdom and patriotism direct and distinguish your councils and your conduct.” – John Jay, first Chief Justice of the United States Supreme Court, in his pamphlet, A Citizen of New York: An Address to the People of the State of New York, April 15, 1788.

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Essay #27 – Principle of decision making by the majority within a constitutional framework.

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Essay #28 – Principle of law and order based on immutable, constant laws of nature and of nature’s God rather than the arbitrary will of any human ruler or mob rule. “I am an Enemy to Vice, and a Friend to Vertue. I am one of an extensive Charity, and a great Forgiver of private Injuries: A hearty Lover of the Clergy and all good Men, and a mortal Enemy to arbitrary Government and unlimited Power. I am naturally very jealous for the Rights and Liberties of my Country; and the least appearance of an Incroachment on those invaluable Priviledges, is apt to make my Blood boil exceedingly.” Silence Dogood, a pseudonym used by Benjamin Franklin, No. 2, April 16, 1722, New-England Courant.

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Essay #29 – Principle of decentralized government where power is on the local level with each individual American and the states. “Sir, I contemplate the abolition of the state constitutions as an event fatal to the liberties of America. These liberties will not be violently wrested from the people; they will be undermined and gradually consumed. On subjects of the kind we cannot be too critical…Will it not give occasion for an innumerable swarm of officers, to infest our country and consume our substance? People will be subject to impositions which they cannot support, and of which their complaints can never reach the government.” – Melancton Smith, Delegate, First Provincial Congress in New York; June 27, 1788 Notes during days beginning the New York Ratifying Convention.

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Essay #30 – Principle of limited government. “With respect to the words ‘general welfare,’ I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.” – James Madison in a letter to James Roberts, Jr on April 20, 1831.

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Essay #31 – Principle of equality over equity, equal opportunities instead of guaranteed outcomes which cannot be guaranteed unless free market choices, competition, product development and improvements are extinguished.

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Essay #32 – Principle of meritocracy.

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Essay #33 – Principle of representative government under direction of the people rather than king rule, a principle applied by the American Founders in the United States Constitution. “But where says some is the King of America? I’ll tell you Friend, he reigns above, and doth not make havoc of mankind like the Royal Brute of Britain. Yet that we may not appear to be defective even in earthly honors, let a day be solemnly set apart for proclaiming the charter; let it be brought forth placed on the divine law, the word of God; let a crown be placed thereon, by which the world may know, that so far we approve of monarchy, that in America the law is king. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other. But lest any ill use should afterwards arise, let the crown at the conclusion of the ceremony be demolished, and scattered among the people whose right it is.” – Thomas Paine, Common Sense, February 14, 1776.

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Essay #34 – Principle of representative government over a hereditary system. “…for it is impossible to discover superiority of right in any family, by virtue of which hereditary government could begin… It is one step toward liberty, to perceive that hereditary government could not begin as an exclusive right in any family…With respect to the first of these heads, that of a family establishing itself with hereditary powers on its own authority independent of the nation, all men will concur in calling it despotism…It operates to preclude the consent of the succeeding generations, and the preclusion of consent is despotism.” – Thomas Paine, Dissertation on the First Principles of Government 1795.

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Essay #35 – Principle of free government and free society, entrusted to the hands of the American people, never confiscated by a tyrannical government system working to control rather than serve the citizenry.

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Essay #36 – Principle of separation of powers, involving checks and balances on those powers: maintaining separation for any power of office held in order to prevent development of tyranny, to prevent concentration where power is built up into one place which prevents checks or restraints by the people. The first grievance in the Declaration of Independence where the king refused to pass laws; The first of the seven Articles of the United States Constitution, Articles I, II, and III, show separate branches of governing and their powers including how they are chosen.

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Essay #37 – Principle of duty of the American people to continually observe government decisions and maintain checks on government power. “Where are your checks in this government? Your strongholds will be in the hands of your enemies. It is on a supposition that your American governors shall be honest, that all the good qualities of this government are founded; but its defective and imperfect construction puts it in their power to perpetrate the worst of mischiefs, should they be bad men; and, sir, would not all the world, from the eastern to the western hemisphere, blame our distracted folly in resting our rights upon the contingency of our rulers being good or bad? Show me that age and country where the rights and liberties of the people were placed on the sole chance of their rulers being good men, without a consequent loss of liberty! I say that the loss of that dearest privilege has ever followed, with absolute certainty, every such mad attempt…The most valuable end of government is the liberty of the inhabitants. No possible advantages can compensate for the loss of this privilege.” – Patrick Henry, speech before the Virginia Ratifying Convention, June 5, 1788.

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Essay #38 – Principle of a Legislative Branch, first within a system of government closest and as local to the people as possible with a limited federal government and strong local and state governing so that the people remain in control of their own government, with the Legislative Branch having been listed first in the Constitution for this purpose and to show it as the most important, then the Executive, then the Judiciary.

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Essay #39 – Principle of an Executive Branch, a strong executive but a role accountable to the people, the legislature, which seats a president and not a king, and the Executive Branch is controlled by the Legislative Branch which is closest to the people. The Executive Branch is listed second in the Constitution after the Legislative Branch.

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Essay #40 – Principle of a Judicial Branch, forming a Supreme Court and having the least amount of power of the three branches and no legislative power. The third branch of United States government, the Judicial Branch, is listed last in the Constitution after the Legislative and then Executive Branch.

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Essay #41 – Principle of rule of law, not of men; careful observance of the formation and execution of laws.

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Essay #42 –Principle of consent of the governed, that government without consent is overreaching its appropriate bounds, having moved from governing to tyranny. “…that the King with and by the authority of parliament, is able to make laws and statutes of sufficient force and validity to limit and bind the crown, and the descent, limitation, inheritance and government thereof” is founded on the principles of liberty and the British constitution: And he that would palm the doctrine of unlimited passive obedience and non-resistance upon mankind, and thereby or by any other means serve the cause of the Pretender, is not only a fool and a knave, but a rebel against common sense, as well as the laws of God, of Nature, and his Country…These are their bounds, which by God and nature are fixed, hitherto have they a right to come, and no further…The sum of my argument is, That civil government is of God…That this constitution is the most free one, and by far the best, now existing on earth: That by this constitution, every man in the dominion is a free man: That no parts of his Majesty’s dominions can be taxed without their consent: That every part has a right to be represented in the supreme or some subordinate legislature…” – James Otis, Rights of British Colonies Asserted and Proved, pamphlet, 1763.

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Essay #43 –Further on the principle of rule of law: difference between a mandate and a law, Founders’ warnings against arbitrary laws or mandates handed out as having the force of law which dilute the meaning of true law and order that protect the liberty of the people.

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Essay #44 – Principle of justice for all.

  • Principle of Justice for All by Andrew Langer, President, Institute for Liberty; Chairman and Founder, Institute for Regulatory Analysis and Engagement.

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Essay #45 –Principle of equal justice under the law.

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Essay #46 – Principle of a political system with criminal and civil law, enacted by a legislative body, and accessible to all American citizens. “…it ought not to be overlooked, that such an additional accumulation of power in the judicial department would not only furnish pretexts for clamor against it, but might create a general dread of its influence, which could hardly fail to disturb the salutory effects of its ordinary functions…There is nothing, of which a free people are so apt to be jealous,, as of the existence of political functions, and political checks, in those, who are not appointed by, and mde directly responsible to themselves.” – Joseph Story, United States Supreme Court Justice appointed by James Madison, Commentaries on the Constitution of the United States: With A Preliminary Review of the Constitutional History of the Colonies and States, Before the Adoption of the Constitution. Published in 1833.

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Essay #47 –Principle of due process of law.

  • Principle of Due Process of Law by James C. Clinger, Professor Emeritus of Political Science, Murray State University; Past President, Kentucky Political Science Association.

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Essay #48 – Principle of innocent of any crime until proven guilty.

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Essay #49 –Principle of freedom of a person under the protection of habeas corpus.

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Essay #50 –Principle of courts with justices who hold their offices during good behavior; importance of the phrase “during good behavior” for public servants. “Every man ought to be amenable for his conduct, and there are no persons so proper to complain of the public officers as the representatives of the people at large. The representatives of the people know the feelings of the people at large, and will be ready enough to make complaints. If this power were not provided, the consequences might be fatal. It will be not only the means of punishing misconduct but it will prevent misconduct. A man in public office who knows that there is no tribunal to punish him may be ready to deviate from his duty; but if he knows there is a tribunal for that purpose, although he may be a man of no principle, the very terror of punishment will perhaps deter him.” – James Iredell, U.S. Supreme Court Justice placed by George Washington, North Carolina Ratification Convention, July 24, 1788.

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Essay #51 –Principle of no unreasonable searches or seizures.

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Essay #52 –Principle of right to a speedy trial by a jury of peers, public, impartial, without cruel or unusual punishments, as part of the judicial system. “I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” – Thomas Jefferson, in a letter to Thomas Paine, 1789.

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Essay #53 –Principle of a Grand Jury indictment of capital crimes before a person may be held to account.

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Essay #54 – Principle of no passage, federal or state, of ex post facto laws of bills of attainder so that an individual is not held guilty of a crime and inflicted a punishment without a trial, to prevent abuse of the law.

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Essay #55 – Principle of republican and limited form of government, representative through American citizens voting in free and frequent elections. “There are however some things deducible from reason, and evidenced by experience, that serve to guide our decision upon the case. The one is never to invest any individual with extraordinary power; for besides his being tempted to misuse it, it will excite contention and commotion in the nation for the office. Secondly, never to invest power long in the hands of any number of individuals. The inconveniences that may be supposed to accompany frequent changes are less to be feared than the danger that arises from long continuance.” – Thomas Paine, Dissertation on First Principles of Government, 1795.

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Essay #56 – Principle of free, fair, independent elections involving preservation of the electoral college.

Principle of Free, Fair, Independent Elections Involving Preservation of the Electoral College by Tara Ross, Nationally Recognized Expert on the Electoral College, Author of Why We Need the Electoral College; The Indispensable Electoral College: How the Founders’ Plan Saves Our Country from Mob Rule; Prager University video, Do You Understand the Electoral College?

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Essay #57 – Further on principle of representative government only under authority of the American people.

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Essay #58 –Principle of establishing justice through the rule of law.

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Essay #59 – Principle of one nation under God.

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Essay #60 – Principle of maintaining freedom and independence through an armed citizenry, right to protect one’s person and property by the personal keeping and bearing of arms. “to preserve liberty, it is essential that the whole body of the people always possess arms.” – Richard Henry Lee, Federal Farmer XVIII, January 25, 1788.

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Essay #61 – Principle of peace, commerce and honest friendship with all nations, entangling alliances with none. The great rule of conduct for us in regard to foreign nations is in extending our commercial relations, to have with them as little political connection as possible. So far as we have already formed engagements, let them be fulfilled with perfect good faith…Our detached and distant situation invites and enables us to pursue a different course. If we remain one people under an efficient government. the period is not far off when we may defy material injury from external annoyance; when we may take such an attitude as will cause the neutrality we may at any time resolve upon to be scrupulously respected; when belligerent nations, under the impossibility of making acquisitions upon us, will not lightly hazard the giving us provocation; when we may choose peace or war, as our interest, guided by justice, shall counsel. Why forego the advantages of so peculiar a situation? Why quit our own to stand upon foreign ground? Why, by interweaving our destiny with that of any part of Europe, entangle our peace and prosperity in the toils of European ambition, rivalship, interest, humor or caprice? It is our true policy to steer clear of permanent alliances with any portion of the foreign world; so far, I mean, as we are now at liberty to do it; for let me not be understood as capable of patronizing infidelity to existing engagements…Taking care always to keep ourselves by suitable establishments on a respectable defensive posture, we may safely trust to temporary alliances for extraordinary emergencies.” – George Washington, Farewell Address, first published September 19, 1796 in Claypoole’s American Daily Advertiser and given the date September 17, 1796.

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Essay #62 – Principle of civil over military authority – protection against corruption, foreign or domestic attempts to divide and destroy America. The way is plain, says the anonymous Addresser. If War continues, remove into the unsettled Country; there establish yourselves, and leave an ungrateful Country to defend itself. But who are they to defend? Our Wives, our Children, our Farms, and other property which we leave behind us. or, in this state of hostile separation, are we to take the two first (the latter cannot be removed), to perish in a Wilderness, with hunger, cold and nakedness? If Peace takes place, never sheath your Swords Says he until you have obtained full and ample justice; this dreadful alternative, of either deserting our Country in the extremest hour of her distress, or turning our Arms against it…what can this writer have in view, by recommending such measures? Can he be a friend to the Army? Can he be a friend to this Country? – George Washington, Speech to the Officers of the Army at Newburgh, in response to petitions for the United States military to protest in mutiny. March 15, 1783.

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Essay #63 – Principle of unity as Americans, preventing faction or division through election only of representatives who understand the United States Constitution and are willing to uphold it. “They were likewise sensible that on a subject so comprehensive, and involving such a variety of points and questions, the most able, the most candid, and the most honest men will differ in opinion…Although many weeks were passed in these discussions, some points remained, on which a unison of opinions could not be effected. Here again that same happy disposition to unite and conciliate, induced them to meet each other; and enabled them, by mutual concessions, finally to complete and agree to the plan they have recommended, and that too with a degree of unanimity which, considering the variety of discordant views and ideas, they had to reconcile, is really astonishing…Reflect that the present plan comes recommended to you by men and fellow citizens who have given you the highest proofs that men can give, of their justice, their love for liberty and their country, of their prudence, of their application, and of their talents. They tell you it is the best that they could form; and that in their opinion, it is necessary to redeem you from those calamities which already begin to be heavy upon us all.” – John Jay, first Chief Justice of the United States Supreme Court, in his pamphlet, A Citizen of New York: An Address to the People of the State of New York, April 15, 1788.

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Essay #64 – Principle of strong defense capability to protect the United States against the danger and severity of treason.

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Essay #65 – Principle of appropriate role and purpose of government upon protecting the people from violence and fraud. “I do believe that men of genius will be deterred unless possessed of great virtues. We may well dispense with the first characters when destitute of virtue I should wish them never to come forward–But if we do not provide against corruption, our government will soon be at an end: nor would I wish to put a man of virtue in the way of temptation. Evasions, and caballing would evade the amendment. Nor would the danger be less, if the executive has the appointment of officers. The first three or four years we might go on well enough; but what would be the case afterwards? I will add, that such a government ought to be refused by the people–and it will be refused.” – George Mason, Farrand’s Records, Federal Convention, Saturday, June 23, 1787, regarding provisions against fraud and corruption regardless of an invasion’s origin slowly eroding the United States.

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Essay #66 – Corruption and the Constitution: Principle of Constitutional Law and a Foundation of a Virtuous and Moral People

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Essay #67 – Principle of private property ownership of land to encourage self-reliance for maintaining and strengthening individual liberty and American independence.

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Essay #68 – Principle of individual free enterprise.

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Essay #69 – Principle of individual rights to life, liberty, and the pursuit of one’s own happiness, to make and reach one’s own goals. “That property will ever be unequal is certain. Industry, superiority of talents, dexterity of management, extreme frugality, fortunate opportunities, or the opposite, or the means of those things, will ever produce that effect, without having recourse to the harsh, ill-sounding names of avarice and oppression; and besides this there are some men who, though they do not despise wealth, will not stoop to the drudgery or the means of acquiring it, nor will be troubled with it beyond their wants or their independence; while in others there is an avidity to obtain it by every means not punishable; it makes the sole business of their lives, and they follow it as a religion. All that is required with respect to property is to obtain it honestly, and not employ it criminally; but it is always criminally employed when it is made a criterion for exclusive rights.” – Thomas Paine, Dissertation on First Principles of Government, 1795.

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Essay #70 – Principle of freedom of speech in a marketplace of ideas.

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Essay #71 – Principle of Money With Intrinsic Value and Standards of Weights and Measures, Printing Money. “And since a Plentiful Currency will be so great a Cause of advancing this Province in Trade and Riches…I cannot think it the Interest of England to oppose’ us in making as great a Sum of Paper Money here, as we, who are the best Judges of our own Necessities, find convenient. And if I were not sensible that the Gentlemen of Trade in England, to whom we have already parted with our Silver and Gold, are misinformed of our Circumstances, and therefore endeavour to have our Currency stinted to what it now is, I should think the Government at Home had some Reasons for discouraging and impoverishing this Province, which we are not acquainted with…” – Benjamin Franklin, A Modest Enquiry into the Nature and Necessity of Paper Currency, Benjamin Franklin, April 3, 1729.

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Essay #72 – Principle of making personal contracts.

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Essay #73 – Principle of free market trade, industry, innovation and competition. “That is not a just government, nor is property secure under it, where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties, and free choice of their occupations, which not only constitute their property in the general sense of the word; but are the means of acquiring property strictly so called.” – Property, an essay by James Madison, March 29, 1792.

Essay #74 – Principle of Private Property Ownership To Sustain Liberty, Encourage Commerce and Independence. “Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own… That is not a just government, nor is property secure under it, where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties.” Property, an essay by James Madison, March 29, 1792.

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Essay #75 – Principle of freedom of the press. “Without Freedom of Thought, there can be no such Thing as Wisdom; and no such Thing as publick Liberty, without Freedom of Speech” – Part of an article by Benjamin Franklin, under the pseudonym Silence Dogood, a name he used due to threats against free speech. Franklin wrote it on freedom of speech and of the press; it published in a newspaper: No. 8 on July 9, 1722, The New-England Courant.

  • Principle of a Free Press by Patrick Garry, Professor of Law, University of South Dakota; Author, Limited Government and the Bill of Rights.

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Essay #76 – Principle of keeping the fruits of one’s own labor. “A just security to property is not afforded by that government, under which unequal taxes oppress one species of property and reward another species: where arbitrary taxes invade the domestic sanctuaries of the rich, and excessive taxes grind the faces of the poor; where the keenness and competitions of want are deemed an insufficient spur to labor, and taxes are again applied, by an unfeeling policy, as another spur; in violation of that sacred property, which Heaven, in decreeing man to earn his bread by the sweat of his brow, kindly reserved to him, in the small repose that could be spared from the supply of his necessities.” – Property, an essay by James Madison, March 29, 1792.

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Essay #77 – Defending Liberty and Rights in Property Through the Fruits of One’s Own Labor

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Essay #78 – Principle of Freedom of Religion. “Whereas Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as it was in his Almighty power to do;…that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical;…and finally, that truth is great and will prevail if left to herself; that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless by human interposition disarmed of her natural weapons, free argument and debate, errors ceasing to be dangerous when it is permitted freely to contradict them:…Be it enacted by the General Assembly, That no man shall be compelled to frequent or support any religious worship, place, or Ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief;” – Thomas Jefferson, Virginia Statute for Religious Freedom, January 16, 1786.

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Essay #79 – Principle of freedom of assembly.

  • Principle of Freedom of Assembly by 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.

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Essay #80 – Principle of civil discourse to keep representative government, unhindered freedom of speech in the airing of grievances. “To suppress Enquiries into the Administration is good Policy in an arbitrary Government: But a free Constitution and freedom of Speech have such a reciprocal Dependence on each other that they cannot subsist without consisting together.” – Pennsylvania Gazette, November 17, 1737, printed by Benjamin Franklin, later reprinted in the Barbados Gazette, 1738, and attributed to Andrew Hamilton, a Pennsylvania Colonial Representative, and lawyer who defended John Peter Zenger who was arrested for criticizing the government, as having possibly been the author of the article.

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Essay #81 – Principle of a nation’s longevity upon consisting of public and private virtue. Religious freedom, assembling, speaking freely and defending the nation’s liberty. “While the People are virtuous they cannot be subdued; but when once they lose their Virtue they will be ready to surrender their Liberties to the first external or internal Invader. How necessary then is it for those who are determind to transmit the Blessings of Liberty as a fair Inheritance to Posterity, to associate on publick Principles in Support of publick Virtue. I do verily believe, and I may say it inter Nos, that the Principles & Manners of New England produced that Spirit which finally has establishd the Independence of America; and Nothing but opposite Principles and Manners can overthrow it.” – Samuel Adams, in a letter to James Warren, Philadelphia, February 12, 1779.

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Essay #82 – Principle of Constitutional Limits on the United States Government To Tax. “How then will it be possible, under these circumstances, to endure this Tax which is laid upon us by Parliament? –Add to this, that it will drain the Province of the little Cash left among us, which at present barely serves for a Medium of Trade…And if you should be active in bringing this Tax upon yourselves, at it will inevitably destroy our constitutional Privileges, so it will perpetuate to the latest Posterity, a most despicable Opinion of the civil Principles of their Ancestors…But should your Representatives be instructed by you, (which God forbid!) by a solemn and public Act to promote the Operation of this Law, you will implicitly declare that you resign that inestimable Right; and, in Consequence of such Resignation, you may next expect a Tax on your Lands; and after that one Burthen on the Back of another, till you are reduced to a State of the most abject Poverty…The Effects I presage are dreaded far and wide. –Would to God our Terror was merely panic, and that the Disagreeableness of the Act arose only from its Novelty. –But our Fears are founded on Reason and universal Experience…Consider gentlemen, that the least infraction of your Liberties is a Prelude to Encroachments…Indolence –Indolence has been the Source of irretrievable Ruin –Languor and Timidity, when the Public is concerned, are the origin of Evils mighty and innumerable” –A letter authored only using the initials W.B. “To the Inhabitants of the Province of the Massachusetts-Bay,” concerning the Stamp Act, appeared in The Boston-Gazette and Country Journal, October 7, 1765.

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Essay #83 – Principle of freedom of association, undissolved and unweakened, either to associate or not associate and neither under coercion or force. “…there must be Associations of Men of unshaken Fortitude. A general Dissolution of Principles & Manners will more surely overthrow the Liberties of America than the whole Force of the Common Enemy.” – Samuel Adams, in a letter to James Warren, Philadelphia, February 12, 1779.

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Essay #84 – Principle of Free Thought and Speech. “The freedom of speech is a principal Pillar in a free Government: when this support is taken away the Constitution is dissolved, and Tyranny is erected on its Ruins.” – Pennsylvania Gazette, November 17, 1737, printed by Benjamin Franklin, later reprinted in the Barbados Gazette, 1738, and attributed to Pennsylvania Lawyer and Pennsylvania Colonial Representative as having possibly been the author of the article.

  • Principle of Free Thought and Speech by Tony Williams, Author of six books including Washington and Hamilton: The Alliance that Forged America; Senior Teaching Fellow, Bill of Rights Institute; Constituting America Fellow.

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Essay #85 – Principle of distinguishing between purpose of federal, and governments of the states: maintaining the Union while preventing federal encroachments on the states and individual Americans. Though we might give to such a government certain powers with safety, yet to give them the full and unlimited powers of taxation and the national forces would be to establish a despotism, the definition of which is, a government in which all power is concentrated in a single body. To take the old Confederation, and fashion it upon these principles, would be establishing a power which would destroy the liberties of the people… It was seen that the necessary powers were too great to be trusted to a single body; they, therefore, formed two branches, and divided the powers, that each might be a check upon the other…The State governments possess inherent advantages, which will ever give them an influence and ascendency over the National Government, and will for ever preclude the possibility of federal encroachments. That their liberties, indeed, can be subverted by the federal head, is repugnant to every rule of political calculation. – Alexander Hamilton, Speech, Compromises of the Constitution, June 20, 1788..

 

Essay #86 – Principle of secure borders.

  • Principle of Secure Borders by Guest Essayist: Kevin Portteus, Professor of Politics, Director of American Studies, Lawrence Fertig Chair in Politics, Hillsdale College.

 

Essay #87 – Principle of a United States Constitution prescribing within itself the only lawful methods of amendments by its keepers, the American people.

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Essay #88 – Upholding the Principle of Amending the United States Constitution by the American People, Its Rightful Keepers.

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Essay #89 – Further on principle of free civil discourse and public debate without censorship – American government based on opportunities to discuss political and policy issues by reflection and choice rather than by accident and force. And what a Compliment does he pay to our Understandings, when he recommends measures in either alternative, impracticable in their Nature?…for if Men are to be precluded from offering their Sentiments on a matter, which may involve the most serious and alarming consequences, that can invite the consideration of Mankind, reason is of no use to us; the freedom of Speech may be taken away, and , dumb and silent we may be led like sheep, to the Slaughter. – George Washington, Speech to the Officers of the Army at Newburgh, the Newburgh Address, March 15, 1783.

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Essay #90 – CONCLUSION

Guest Essayist: Christopher C. Burkett, Associate Professor of History and Political Science; Director, Ashbrook Scholar Program, Ashland University.

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Principle of constitutional limits on the United States government to spend taxes collected from the people with prompt payment of public debt.

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First Principles of the American Founding

90-Day Study 2023

Essay #1 – INTRODUCTION

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Essay #2 – Principle of government exists to secure liberty of the people rather than government existing to benefit itself. “We ought to consider, what is the end of government, before we determine which is the best form.” – John Adams, Thoughts on Government, in a letter in reply to William Hooper 1742-1790, North Carolina Continental Congress Delegate and John Penn 1740-1788, North Carolina Continental Congress Delegate, written spring 1776 in reply to NC delegates Hooper and Penn requesting Adams’ considerations on republican government for America upon gaining independence from Great Britain.

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Essay #3 – Principle of regard for history, order, and tradition.

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Essay #4 – Further on drawing from history, order and tradition in the formation of America’s founding documents such as the Declaration of Independence and United States Constitution of the 1700s. In 1639, a new colony, Connecticut, later a state gaining the motto “The Constitution State,” was founded by Reverends Thomas Hooker and John Davenport. Along with others, the Fundamental Orders of Connecticut were drafted, forming what is considered the first constitution in America. “…so to order and dispose of things that we the Inhabitants and Residents of Windsor, Hartford and Wethersfield are now cohabiting and dwelling in and upon the River of Connecticut and the lands thereunto adjoining; and well knowing where a people are gathered together the word of God requires that to maintain the peace and union of such a people there should be an orderly and decent Government established…General Assemblies or Courts…Court of Election…Magistrates…liberty of speech…Governor…promote the public good and peace of the same…maintain all lawful privileges of this Commonwealth; as also that all wholesome laws that are or shall be made by lawful authority here established, be duly executed…” – segments from the Fundamental Orders of Connecticut, January 1639.

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Essay #5 – Principle of classical history discussed by the American founders for the purpose of applying its lessons toward a new and different governing system devoted to freedom and independence.

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Essay #6 – Further on the principle of classical history discussed by the American founders for the purpose of applying its lessons toward a new and different governing system devoted to freedom and independence. In 1641, the Massachusetts Body of Liberties was written by a Puritan minister, Nathaniel Ward, considered the first bill of rights in America, continuing influences gained from those such as Magna Carta and others in the 1600s and into the 1700s for American law to come, and recognizing one is born with rights no government may take away. “The free fruition of such liberties, immunities and privileges as humanity, civility, and Christianity call for as due to every man in his place and proportion without impeachment and infringement hath ever been and ever will be the tranquility and stability of churches and commonwealths. And the denial or deprival thereof, the disturbance if not the ruin of both. We hold it therefore our duty and safety whilst we are about the further establishing of this government to collect and express all such freedoms as for present we foresee may concern us, and our posterity after us, and to ratify them with our solemn consent…” – With enumerated sections, in its original English spelling, the document was entitled, A Coppie of the Liberties of the Massachusets Collonie in New England, December 1641.

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Essay #7 – Classical history and significance of republican government as adopted by the United States and its influence during the American Revolutionary War.

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Essay #8 – Principle of constitutional restraints to prevent the undermining of interests of the entire Union. The Founders’ Join or Die efforts to protect the new Union of colonies to become a United States with state governments and one federal government with limits, resulted in Benjamin Franklin’s editorial cartoon running May 9, 1754 in his Pennsylvania Gazette, a picture of a snake cut in pieces representing the colonies. It served as a warning to join together or be destroyed by opponents of America. During tumultuous events of the French and Indian War, fighting the Stamp Act, and working toward independence from Britain, Americans agreed on protecting the Union.

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Essay #9 – Principle of natural law opposition to tyranny that binds a free people together and cannot disjoin them. “When the law is the will of the people, it will be uniform and coherent: but fluctuation, contradiction, and inconsistency of councils must be expected under those governments where every revolution in the ministry of a court produces one in the state. Such being the folly and pride of all ministers, that they ever pursue measures directly opposite to those of their predecessors…We shall neither be exposed to the necessary convulsions of elective monarchies, nor to the want of wisdom, fortitude, and virtue, to which hereditary succession is liable. In your hands it will be to perpetuate a prudent, active and just legislature, and which will never expire until you yourselves lose the virtues which give it existence…Our Union is now complete; our constitution composed, established, and approved. You are now the guardians of your own liberties.” – Samuel Adams, Speech on American Independence, August 1, 1776.

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Essay #10 – Further on principle of appropriate role and purpose of government in protecting liberty of the citizenry and the function of running their own government.

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Essay #11 – Principle of educating based on ethical, philosophical self-evident truths of good government, designed for a free people, recognized as important for acquiring civic virtue. “when the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. the exemption of the judges from that is quite dangerous enough. I know no safe depository of the ultimate powers of the society, but the people themselves: and if we think them not enlightened enough to exercise their controul with a wholsome discretion, the remedy is, not to take it from them, but to inform their discretion by education. this is the true corrective of abuses of constitutional power.” – Thomas Jefferson in a letter to William Charles Jarvis, Monticello, September 28, 1820.

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Essay #12 – Principle of educating based on ethical, philosophical self-evident truths of self-government and a good system of government for the country, designed for a free people, recognized as important for securing and continuing the blessings of liberty for future generations of Americans. The New England Primer, published in 1690, served as the main textbook through the nineteenth century. It was used to educate Americans on virtue, morals, and how to read.

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Essay #13 – Principle of civic duty, civic engagement. In a letter, John Adams wrote from Philadelphia to his wife, Abigail, April 26, 1777. Battle weary, Adams stated as he closed, “Posterity! You will never know, how much it cost the present Generation, to preserve your Freedom! I hope you will make a good Use of it.” Adams hoped future Americans would accept responsibility to preserve what was being established in his day. Declaration of Independence grievance: “He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.”

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Essay #14 – Principle of civic duty to petition their own government for a redress of grievances.

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Essay #15 – Principle of civic duty to rein in overreaching government. “They tell us, sir, that we are weak; unable to cope with so formidable an adversary. But when shall we be stronger? Will it be the next week, or the next year? Will it be when we are totally disarmed, and when a British guard shall be stationed in every house?” – Patrick Henry, speech delivered at St. Johns Church, Richmond, Virginia, March 23, 1775 (“Give me liberty” quote was attributed to Patrick Henry, believed originally from William Wirt).

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Essay #16 – Principle of citizenship, love of country. “The Unity of Government which constitutes you one people is also now dear to you. It is justly so; for it is a main Pillar in the Edifice of your real independence, the support of your tranquility at home; your peace abroad; of your safety; of your prosperity; of that very Liberty which you so highly prize. But as it is easy to foresee, that from different causes and from different quarters, much pains will be taken, many artifices employed, to weaken in your minds the conviction of this truth; as 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, it is of infinite moment, that you should properly estimate the immense value of your national Union to your collective and individual happiness” – George Washington, Farewell Address, first published September 19, 1796 in Claypoole’s American Daily Advertiser and given the date September 17, 1796.

  • Principle of Citizenship and Love of Country by Tom Hand, Creator and Publisher, Americana Corner; West Point Graduate; Serves on the Board of Trustees, American Battlefield Trust and the National Park Foundation’s National Council.

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Essay #17 – Principle of America’s national sovereignty. “That these are our grievances which we have thus laid before his majesty, with that freedom of language and sentiment which becomes a free people claiming their rights, as derived from the laws of nature, and not as the gift of their chief magistrate: Let those flatter who fear; it is not an American art. To give praise which is not due might be well from the venal, but would ill beseem those who are asserting the rights of human nature. They know, and will therefore say, that kings are the servants, not the proprietors of the people.” – Thomas Jefferson in his pamphlet, “A Summary View of the Rights of British America” July 1774, Williamsburg, Virginia.

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Essay #18 – Further on principle of America’s national sovereignty upon preventing loss of independence to foreign or global governments acting as with binding authority in attempts to undermine the United States.

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Essay #19 – Principle of peace through strength. “Shall we gather strength by irresolution and inaction? Shall we acquire the means of effectual resistance, by lying supinely on our backs, and hugging the delusive phantom of hope, until our enemies shall have bound us hand and foot?…It is in vain, sir, to extenuate the matter. Gentlemen may cry, Peace, Peace but there is no peace. The war is actually begun! The next gale that sweeps from the north will bring to our ears the clash of resounding arms! Our brethren are already in the field! Why stand we here idle? What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!” – Patrick Henry, speech delivered at St. Johns Church, Richmond, Virginia, March 23, 1775 (“Give me liberty” quote was attributed to Patrick Henry, believed originally from William Wirt).

  • Principle of Peace Through Strength by Robert Brescia, Board Director, Past Chairman, Basin PBS Television; Top Leadership Roles in Education, Corporate Business, Nonprofit, and Defense; Twenty-Seven Years of Public Service as an Airborne Ranger Cavalry Soldier, NCO, Commissioned Officer, U.S. Army; Appointed by Texas Governor Greg Abbott, State Board for Educator Certification.

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Essay #20 – Principle of foreign policy based on a standard of freedom and independence. Thomas Paine, The American Crisis, December 19, 1776, Pamphlet 1, speech on “These are the times that try men’s souls” – not quitting in their fight for independence, writing how tyranny is not easily conquered, “Britain, with an army to enforce her tyranny, has declared that she has a right (not only to tax) but “to bind us in all cases whatsoever.”

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Essay #21 – Principle of Creator-endowed unalienable rights.

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Essay #22 – Principle of natural law as the foundation for constitutional law. “government by election and representation has its origin in the natural and eternal rights of man” – Thomas Paine, Dissertation on First Principles of Government, 1795.

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Essay #23 – Principle of appropriate role and purpose of government upon protection of unalienable rights, unchangeable, inherent, natural rights. The sacred rights of mankind are not to be rummaged for, among old parchments, or musty records. They are written, as with a sun beam, in the whole volume of human nature, by the hand of the divinity itself; and can never be erased or obscured by mortal power. – Alexander Hamilton in his pamphlet, The Farmer Refuted, February 23, 1775, New York.

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Essay #24 – Principle of a written United States Constitution that is the supreme law of the land, designed for the preservation of liberty for each generation of future Americans since its ratification. “…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 of another, covenant and combine our selves together into a civil body politic, for our better ordering and preservation and furtherance of the ends aforesaid; and by virtue hereof to enact, constitute, and frame such just and equal laws, ordinances, acts, constitutions and offices…” After high winds blew the ship off course landing the Pilgrims hundreds of miles off their destination, the first American document designed for self-governing, called the Mayflower Compact, was signed November 21, 1620 (November 11, old calendar) aboard the Mayflower ship at Cape Cod, what is now Massachusets. With an understanding, from experience about tyrannical rule, the early American settlers knew the importance of good governing and that a document to form it should be written for doing so themselves at the place they landed. Forty-one men signed the agreement that would help lay the framework for the new nation’s future Constitution.

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Essay #25 – Further on the principle of a written United States Constitution, a contract allowing, under strict limits, a government to run under the authority of the American people within the states. “There are in the productions of all of them, among many excellent things, some sentiments, however, that it will be difficult to reconcile to reason, experience, the constitution of human nature, or to the uniform testimony of the greatest statesmen, legislators, and philosophers of all enlightened nations, ancient and modern.” – John Adams in his 1787-1877 A Defense of the Constitution of Government of the United States of America, Letter I, Volume I, Preliminary Observations, Grosvenor-Square, October 4, 1786, part of a three-volume response sparked by a 1778 letter degrading American constitutions as not enough in republican form for the people to remain in control but were only repeating dictatorships America was trying to escape. Adams argues this is not the case.

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Essay #26 – Principle of self-governing. “Let us also be mindful that the cause of freedom greatly depends on the use we make of the singular opportunities we enjoy of governing ourselves wisely; for if the event should prove, that the people of this country either cannot or will not govern themselves, who will hereafter be advocates for systems, which however charming in theory and prospect, are not reducible to practice. If the people of our nation, instead of consenting to be governed by laws of their own making, and rulers of their own choosing, should let licentiousness, disorder, and confusion reign over them, the minds of men every where, will insensibly become alienated from republican forms, and prepared to prefer and acquiesce in Governments, which, though less friendly to liberty, afford more peace and security…Receive this Address with the same candor with which it is written; and may the spirit of wisdom and patriotism direct and distinguish your councils and your conduct.” – John Jay, first Chief Justice of the United States Supreme Court, in his pamphlet, A Citizen of New York: An Address to the People of the State of New York, April 15, 1788.

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Essay #27 – Principle of decision making by the majority within a constitutional framework.

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Essay #28 – Principle of law and order based on immutable, constant laws of nature and of nature’s God rather than the arbitrary will of any human ruler or mob rule. “I am an Enemy to Vice, and a Friend to Vertue. I am one of an extensive Charity, and a great Forgiver of private Injuries: A hearty Lover of the Clergy and all good Men, and a mortal Enemy to arbitrary Government and unlimited Power. I am naturally very jealous for the Rights and Liberties of my Country; and the least appearance of an Incroachment on those invaluable Priviledges, is apt to make my Blood boil exceedingly.” Silence Dogood, a pseudonym used by Benjamin Franklin, No. 2, April 16, 1722, New-England Courant.

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Essay #29 – Principle of constitutional law and a foundation of a virtuous and moral people.

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Essay #30 – Principle of one nation under God.

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Essay #31 – Principle of consent of the governed, that government without consent is overreaching its appropriate bounds, having moved from governing to tyranny. “…that the King with and by the authority of parliament, is able to make laws and statutes of sufficient force and validity to limit and bind the crown, and the descent, limitation, inheritance and government thereof” is founded on the principles of liberty and the British constitution: And he that would palm the doctrine of unlimited passive obedience and non-resistance upon mankind, and thereby or by any other means serve the cause of the Pretender, is not only a fool and a knave, but a rebel against common sense, as well as the laws of God, of Nature, and his Country…These are their bounds, which by God and nature are fixed, hitherto have they a right to come, and no further…The sum of my argument is, That civil government is of God…That this constitution is the most free one, and by far the best, now existing on earth: That by this constitution, every man in the dominion is a free man: That no parts of his Majesty’s dominions can be taxed without their consent: That every part has a right to be represented in the supreme or some subordinate legislature…” – James Otis, Rights of British Colonies Asserted and Proved, pamphlet, 1763.

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Essay #32 – Principle of decentralized government where power is on the local level with each individual American and the states. “Sir, I contemplate the abolition of the state constitutions as an event fatal to the liberties of America. These liberties will not be violently wrested from the people; they will be undermined and gradually consumed. On subjects of the kind we cannot be too critical…Will it not give occasion for an innumerable swarm of officers, to infest our country and consume our substance? People will be subject to impositions which they cannot support, and of which their complaints can never reach the government.” – Melancton Smith, Delegate, First Provincial Congress in New York; June 27, 1788 Notes during days beginning the New York Ratifying Convention.

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Essay #33 – Principle of limited government. “With respect to the words ‘general welfare,’ I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.” – James Madison in a letter to James Roberts, Jr on April 20, 1831.

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Essay #34 – Principle of equality over equity, equal opportunities instead of guaranteed outcomes which cannot be guaranteed unless free market choices, competition, product development and improvements are extinguished.

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Essay #35 – Principle of meritocracy.

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Essay #36 – Principle of representative government under direction of the people rather than king rule, a principle applied by the American Founders in the United States Constitution. “But where says some is the King of America? I’ll tell you Friend, he reigns above, and doth not make havoc of mankind like the Royal Brute of Britain. Yet that we may not appear to be defective even in earthly honors, let a day be solemnly set apart for proclaiming the charter; let it be brought forth placed on the divine law, the word of God; let a crown be placed thereon, by which the world may know, that so far we approve of monarchy, that in America the law is king. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other. But lest any ill use should afterwards arise, let the crown at the conclusion of the ceremony be demolished, and scattered among the people whose right it is.” – Thomas Paine, Common Sense, February 14, 1776.

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Essay #37 – Principle of representative government over a hereditary system. “…for it is impossible to discover superiority of right in any family, by virtue of which hereditary government could begin… It is one step toward liberty, to perceive that hereditary government could not begin as an exclusive right in any family…With respect to the first of these heads, that of a family establishing itself with hereditary powers on its own authority independent of the nation, all men will concur in calling it despotism…It operates to preclude the consent of the succeeding generations, and the preclusion of consent is despotism.” – Thomas Paine, Dissertation on the First Principles of Government 1795.

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Essay #38 – Principle of free government and free society, entrusted to the hands of the American people, never confiscated by a tyrannical government system working to control rather than serve the citizenry.

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Essay #39 – Principle of separation of powers, involving checks and balances on those powers: maintaining separation for any power of office held in order to prevent development of tyranny, to prevent concentration where power is built up into one place which prevents checks or restraints by the people. The first grievance in the Declaration of Independence where the king refused to pass laws; The first of the seven Articles of the United States Constitution, Articles I, II, and III, show separate branches of governing and their powers including how they are chosen.

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Essay #40 – Principle of duty of the American people to continually observe government decisions and maintain checks on government power. “Where are your checks in this government? Your strongholds will be in the hands of your enemies. It is on a supposition that your American governors shall be honest, that all the good qualities of this government are founded; but its defective and imperfect construction puts it in their power to perpetrate the worst of mischiefs, should they be bad men; and, sir, would not all the world, from the eastern to the western hemisphere, blame our distracted folly in resting our rights upon the contingency of our rulers being good or bad? Show me that age and country where the rights and liberties of the people were placed on the sole chance of their rulers being good men, without a consequent loss of liberty! I say that the loss of that dearest privilege has ever followed, with absolute certainty, every such mad attempt…The most valuable end of government is the liberty of the inhabitants. No possible advantages can compensate for the loss of this privilege.” – Patrick Henry, speech before the Virginia Ratifying Convention, June 5, 1788.

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Essay #41 – Principle of a Legislative Branch, first within a system of government closest and as local to the people as possible with a limited federal government and strong local and state governing so that the people remain in control of their own government, with the Legislative Branch having been listed first in the Constitution for this purpose and to show it as the most important, then the Executive, then the Judiciary.

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Essay #42 – Principle of an Executive Branch, a strong executive but a role accountable to the people, the legislature, which seats a president and not a king, and the Executive Branch is controlled by the Legislative Branch which is closest to the people. The Executive Branch is listed second in the Constitution after the Legislative Branch.

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Essay #43 – Principle of a Judicial Branch, forming a Supreme Court and having the least amount of power of the three branches and no legislative power. The third branch of United States government, the Judicial Branch, is listed last in the Constitution after the Legislative and then Executive Branch.

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Essay #44 – Principle of establishing justice through rule of law – guarding against gradual erosion of law and order into chaos to break down America’s system of self-governing, eventually ushering in tyranny to control the people rather than protect liberty by protecting the rule of law. “…you seem…to consider the judges as the ultimate arbiters of all constitutional questions: a very dangerous doctrine indeed and one which would place us under the despotism of an Oligarchy. our judges are as honest as other men, and not more so. they have, with others, the same passions for party, for power, and the privileges of their corps. their maxim is ‘boni judicis est ampliare jurisdictionem,’ and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective controul. the constitution has erected no such single tribunal knowing that, to whatever hands confided, with the corruptions of time & party it’s members would become despots.” – Thomas Jefferson in a letter to William Charles Jarvis, Monticello, September 28, 1820.

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Essay #45 – Principle of rule of law, not of men; careful observance of the formation and execution of laws.

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Essay #46 – Further on the principle of rule of law: difference between a mandate and a law, Founders’ warnings against arbitrary laws or mandates handed out as having the force of law which dilute the meaning of true law and order that protect the liberty of the people.

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Essay #47 – Principle of justice for all.

  • Principle of Justice for All by Andrew Langer, President, Institute for Liberty; Chairman and Founder, Institute for Regulatory Analysis and Engagement.

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Essay #48 – Principle of equal under the law.

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Essay #49 – Principle of a political system with criminal and civil law, enacted by a legislative body, and accessible to all American citizens. “…it ought not to be overlooked, that such an additional accumulation of power in the judicial department would not only furnish pretexts for clamor against it, but might create a general dread of its influence, which could hardly fail to disturb the salutory effects of its ordinary functions…There is nothing, of which a free people are so apt to be jealous,, as of the existence of political functions, and political checks, in those, who are not appointed by, and mde directly responsible to themselves.” – Joseph Story, United States Supreme Court Justice appointed by James Madison, Commentaries on the Constitution of the United States: With A Preliminary Review of the Constitutional History of the Colonies and States, Before the Adoption of the Constitution. Published in 1833.

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Essay #50 – Principle of due process of law.

  • Principle of Due Process of Law by James C. Clinger, Professor Emeritus of Political Science, Murray State University; Past President, Kentucky Political Science Association.

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Essay #51 – Principle of innocent of any crime until proven guilty.

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Essay #52 – Principle of freedom of a person under the protection of habeas corpus.

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Essay #53 – Principle of courts with justices who hold their offices during good behavior; importance of the phrase “during good behavior” for public servants. “Every man ought to be amenable for his conduct, and there are no persons so proper to complain of the public officers as the representatives of the people at large. The representatives of the people know the feelings of the people at large, and will be ready enough to make complaints. If this power were not provided, the consequences might be fatal. It will be not only the means of punishing misconduct but it will prevent misconduct. A man in public office who knows that there is no tribunal to punish him may be ready to deviate from his duty; but if he knows there is a tribunal for that purpose, although he may be a man of no principle, the very terror of punishment will perhaps deter him.” – James Iredell, U.S. Supreme Court Justice placed by George Washington, North Carolina Ratification Convention, July 24, 1788.

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Essay #54 – Principle of no unreasonable searches or seizures.

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Essay #55 – Principle of right to a speedy trial by a jury of peers, public, impartial, without cruel or unusual punishments, as part of the judicial system. “I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” – Thomas Jefferson, in a letter to Thomas Paine, 1789.

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Essay #56 – Principle of a Grand Jury indictment of capital crimes before a person may be held to account.

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Essay #57 – Principle of no passage, federal or state, of ex post facto laws of bills of attainder so that an individual is not held guilty of a crime and inflicted a punishment without a trial, to prevent abuse of the law.

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Essay #58 – Principle of republican and limited form of government, representative through American citizens voting in free and frequent elections. “There are however some things deducible from reason, and evidenced by experience, that serve to guide our decision upon the case. The one is never to invest any individual with extraordinary power; for besides his being tempted to misuse it, it will excite contention and commotion in the nation for the office. Secondly, never to invest power long in the hands of any number of individuals. The inconveniences that may be supposed to accompany frequent changes are less to be feared than the danger that arises from long continuance.” – Thomas Paine, Dissertation on First Principles of Government, 1795.

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Essay #59 – Principle of free, fair, independent elections involving preservation of the electoral college.

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Essay #60 – Further on principle of representative government only under authority of the American people.

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Essay #61 – Principle of a United States Constitution prescribing within itself the only lawful methods of amendments by its keepers, the American people.

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Essay #62 – Upholding the Principle of Amending the United States Constitution by the American People, Its Rightful Keepers.

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Essay #63 – Principle of maintaining freedom and independence through an armed citizenry, right to protect one’s person and property by the personal keeping and bearing of arms. “to preserve liberty, it is essential that the whole body of the people always possess arms.” – Richard Henry Lee, Federal Farmer XVIII, January 25, 1788.

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Essay #64 – Principle of peace, commerce and honest friendship with all nations, entangling alliances with none. The great rule of conduct for us in regard to foreign nations is in extending our commercial relations, to have with them as little political connection as possible. So far as we have already formed engagements, let them be fulfilled with perfect good faith…Our detached and distant situation invites and enables us to pursue a different course. If we remain one people under an efficient government. the period is not far off when we may defy material injury from external annoyance; when we may take such an attitude as will cause the neutrality we may at any time resolve upon to be scrupulously respected; when belligerent nations, under the impossibility of making acquisitions upon us, will not lightly hazard the giving us provocation; when we may choose peace or war, as our interest, guided by justice, shall counsel. Why forego the advantages of so peculiar a situation? Why quit our own to stand upon foreign ground? Why, by interweaving our destiny with that of any part of Europe, entangle our peace and prosperity in the toils of European ambition, rivalship, interest, humor or caprice? It is our true policy to steer clear of permanent alliances with any portion of the foreign world; so far, I mean, as we are now at liberty to do it; for let me not be understood as capable of patronizing infidelity to existing engagements…Taking care always to keep ourselves by suitable establishments on a respectable defensive posture, we may safely trust to temporary alliances for extraordinary emergencies.” – George Washington, Farewell Address, first published September 19, 1796 in Claypoole’s American Daily Advertiser and given the date September 17, 1796.

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Essay #65 – Principle of civil over military authority – protection against corruption, foreign or domestic attempts to divide and destroy America. The way is plain, says the anonymous Addresser. If War continues, remove into the unsettled Country; there establish yourselves, and leave an ungrateful Country to defend itself. But who are they to defend? Our Wives, our Children, our Farms, and other property which we leave behind us. or, in this state of hostile separation, are we to take the two first (the latter cannot be removed), to perish in a Wilderness, with hunger, cold and nakedness? If Peace takes place, never sheath your Swords Says he until you have obtained full and ample justice; this dreadful alternative, of either deserting our Country in the extremest hour of her distress, or turning our Arms against it…what can this writer have in view, by recommending such measures? Can he be a friend to the Army? Can he be a friend to this Country? – George Washington, Speech to the Officers of the Army at Newburgh, in response to petitions for the United States military to protest in mutiny. March 15, 1783.

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Essay #66 – Principle of unity as Americans, preventing faction or division through election only of representatives who understand the United States Constitution and are willing to uphold it. “They were likewise sensible that on a subject so comprehensive, and involving such a variety of points and questions, the most able, the most candid, and the most honest men will differ in opinion…Although many weeks were passed in these discussions, some points remained, on which a unison of opinions could not be effected. Here again that same happy disposition to unite and conciliate, induced them to meet each other; and enabled them, by mutual concessions, finally to complete and agree to the plan they have recommended, and that too with a degree of unanimity which, considering the variety of discordant views and ideas, they had to reconcile, is really astonishing…Reflect that the present plan comes recommended to you by men and fellow citizens who have given you the highest proofs that men can give, of their justice, their love for liberty and their country, of their prudence, of their application, and of their talents. They tell you it is the best that they could form; and that in their opinion, it is necessary to redeem you from those calamities which already begin to be heavy upon us all.” – John Jay, first Chief Justice of the United States Supreme Court, in his pamphlet, A Citizen of New York: An Address to the People of the State of New York, April 15, 1788.

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Essay #67 – Principle of strong defense capability to protect the United States against the danger and severity of treason.

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Essay #68 – Principle of appropriate role and purpose of government upon protecting the people from violence and fraud. “I do believe that men of genius will be deterred unless possessed of great virtues. We may well dispense with the first characters when destitute of virtue I should wish them never to come forward–But if we do not provide against corruption, our government will soon be at an end: nor would I wish to put a man of virtue in the way of temptation. Evasions, and caballing would evade the amendment. Nor would the danger be less, if the executive has the appointment of officers. The first three or four years we might go on well enough; but what would be the case afterwards? I will add, that such a government ought to be refused by the people–and it will be refused.” – George Mason, Farrand’s Records, Federal Convention, Saturday, June 23, 1787, regarding provisions against fraud and corruption regardless of an invasion’s origin slowly eroding the United States.

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Essay #69 – Principle of distinguishing between purpose of federal, and governments of the states: maintaining the Union while preventing federal encroachments on the states and individual Americans. Though we might give to such a government certain powers with safety, yet to give them the full and unlimited powers of taxation and the national forces would be to establish a despotism, the definition of which is, a government in which all power is concentrated in a single body. To take the old Confederation, and fashion it upon these principles, would be establishing a power which would destroy the liberties of the people… It was seen that the necessary powers were too great to be trusted to a single body; they, therefore, formed two branches, and divided the powers, that each might be a check upon the other…The State governments possess inherent advantages, which will ever give them an influence and ascendency over the National Government, and will for ever preclude the possibility of federal encroachments. That their liberties, indeed, can be subverted by the federal head, is repugnant to every rule of political calculation. – Alexander Hamilton, Speech, Compromises of the Constitution, June 20, 1788.

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Essay #70 – Principle of private property ownership of land to encourage self-reliance for maintaining and strengthening individual liberty and American independence.

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Essay #71 – Principle of secure borders.

  • Principle of Secure Borders by Kevin Portteus, Professor of Politics, Director of American Studies, Lawrence Fertig Chair in Politics, Hillsdale College.

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Essay #72 – Further on principle of private property ownership to protect liberty and encourage commerce, independence, personal growth and wealth without a requirement of royal or other position of gain. “Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own… That is not a just government, nor is property secure under it, where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties.” Property, an essay by James Madison, March 29, 1792.

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Essay #73 – Principle of individual rights to life, liberty, and the pursuit of one’s own happiness, to make and reach one’s own goals. “That property will ever be unequal is certain. Industry, superiority of talents, dexterity of management, extreme frugality, fortunate opportunities, or the opposite, or the means of those things, will ever produce that effect, without having recourse to the harsh, ill-sounding names of avarice and oppression; and besides this there are some men who, though they do not despise wealth, will not stoop to the drudgery or the means of acquiring it, nor will be troubled with it beyond their wants or their independence; while in others there is an avidity to obtain it by every means not punishable; it makes the sole business of their lives, and they follow it as a religion. All that is required with respect to property is to obtain it honestly, and not employ it criminally; but it is always criminally employed when it is made a criterion for exclusive rights.” – Thomas Paine, Dissertation on First Principles of Government, 1795.

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Essay #74 – Principle of individual free enterprise.

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Essay #75 – Principle of money with intrinsic value and standards of weights and measures, printing money. “And since a Plentiful Currency will be so great a Cause of advancing this Province in Trade and Riches…I cannot think it the Interest of England to oppose’ us in making as great a Sum of Paper Money here, as we, who are the best Judges of our own Necessities, find convenient. And if I were not sensible that the Gentlemen of Trade in England, to whom we have already parted with our Silver and Gold, are misinformed of our Circumstances, and therefore endeavour to have our Currency stinted to what it now is, I should think the Government at Home had some Reasons for discouraging and impoverishing this Province, which we are not acquainted with…” – Benjamin Franklin, A Modest Enquiry into the Nature and Necessity of Paper Currency, Benjamin Franklin, April 3, 1729.

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Essay #76 – Principle of making personal contracts.

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Essay #77 – Principle of free market trade, industry, innovation and competition. “That is not a just government, nor is property secure under it, where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties, and free choice of their occupations, which not only constitute their property in the general sense of the word; but are the means of acquiring property strictly so called.” – Property, an essay by James Madison, March 29, 1792.

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Essay #78 – Principle of keeping the fruits of one’s own labor. “A just security to property is not afforded by that government, under which unequal taxes oppress one species of property and reward another species: where arbitrary taxes invade the domestic sanctuaries of the rich, and excessive taxes grind the faces of the poor; where the keenness and competitions of want are deemed an insufficient spur to labor, and taxes are again applied, by an unfeeling policy, as another spur; in violation of that sacred property, which Heaven, in decreeing man to earn his bread by the sweat of his brow, kindly reserved to him, in the small repose that could be spared from the supply of his necessities.” – Property, an essay by James Madison, March 29, 1792.

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Essay #79 – Principle of defending liberty and rights in property through the fruits of one’s own labor.

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Essay #80 – Principle of constitutional limits on the United States government to tax. “How then will it be possible, under these circumstances, to endure this Tax which is laid upon us by Parliament? –Add to this, that it will drain the Province of the little Cash left among us, which at present barely serves for a Medium of Trade…And if you should be active in bringing this Tax upon yourselves, at it will inevitably destroy our constitutional Privileges, so it will perpetuate to the latest Posterity, a most despicable Opinion of the civil Principles of their Ancestors…But should your Representatives be instructed by you, (which God forbid!) by a solemn and public Act to promote the Operation of this Law, you will implicitly declare that you resign that inestimable Right; and, in Consequence of such Resignation, you may next expect a Tax on your Lands; and after that one Burthen on the Back of another, till you are reduced to a State of the most abject Poverty…The Effects I presage are dreaded far and wide. –Would to God our Terror was merely panic, and that the Disagreeableness of the Act arose only from its Novelty. –But our Fears are founded on Reason and universal Experience…Consider gentlemen, that the least infraction of your Liberties is a Prelude to Encroachments…Indolence –Indolence has been the Source of irretrievable Ruin –Languor and Timidity, when the Public is concerned, are the origin of Evils mighty and innumerable” –A letter authored only using the initials W.B. “To the Inhabitants of the Province of the Massachusetts-Bay,” concerning the Stamp Act, appeared in The Boston-Gazette and Country Journal, October 7, 1765.

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Essay #81 – Principle of freedom of speech in a marketplace of ideas.

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Essay #82 – Principle of free thought and speech. “The freedom of speech is a principal Pillar in a free Government: when this support is taken away the Constitution is dissolved, and Tyranny is erected on its Ruins.” – Pennsylvania Gazette, November 17, 1737, printed by Benjamin Franklin, later reprinted in the Barbados Gazette, 1738, and attributed to Pennsylvania Lawyer and Pennsylvania Colonial Representative as having possibly been the author of the article.

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Essay #83 – Principle of freedom of association, undissolved and unweakened, either to associate or not associate and neither under coercion nor force. “…there must be Associations of Men of unshaken Fortitude. A general Dissolution of Principles & Manners will more surely overthrow the Liberties of America than the whole Force of the Common Enemy.” – Samuel Adams, in a letter to James Warren, Philadelphia, February 12, 1779.

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Essay #84 – Principle of freedom of the press. “Without Freedom of Thought, there can be no such Thing as Wisdom; and no such Thing as publick Liberty, without Freedom of Speech” – Part of an article by Benjamin Franklin, under the pseudonym Silence Dogood, a name he used due to threats against free speech. Franklin wrote it on freedom of speech and of the press; it published in a newspaper: No. 8 on July 9, 1722, The New-England Courant.

  • Principle of a Free Press by Patrick Garry, Professor of Law, University of South Dakota; Author, Limited Government and the Bill of Rights.

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Essay #85 – Principle of freedom of assembly.

  • Principle of Freedom of Assembly by 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.

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Essay #86 – Principle of civil discourse to keep representative government, unhindered freedom of speech in the airing of grievances. “To suppress Enquiries into the Administration is good Policy in an arbitrary Government: But a free Constitution and freedom of Speech have such a reciprocal Dependence on each other that they cannot subsist without consisting together.” – Pennsylvania Gazette, November 17, 1737, printed by Benjamin Franklin, later reprinted in the Barbados Gazette, 1738, and attributed to Andrew Hamilton, a Pennsylvania Colonial Representative, and lawyer who defended John Peter Zenger who was arrested for criticizing the government, as having possibly been the author of the article.

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Essay #87 – Further on principle of free civil discourse and public debate without censorship – American government based on opportunities to discuss political and policy issues by reflection and choice rather than by accident and force. And what a Compliment does he pay to our Understandings, when he recommends measures in either alternative, impracticable in their Nature?…for if Men are to be precluded from offering their Sentiments on a matter, which may involve the most serious and alarming consequences, that can invite the consideration of Mankind, reason is of no use to us; the freedom of Speech may be taken away, and, dumb and silent we may be led like sheep, to the Slaughter. – George Washington, Speech to the Officers of the Army at Newburgh, the Newburgh Address, March 15, 1783.

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Essay #88 – Principle of freedom of religion. “Whereas Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as it was in his Almighty power to do;…that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical;…and finally, that truth is great and will prevail if left to herself; that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless by human interposition disarmed of her natural weapons, free argument and debate, errors ceasing to be dangerous when it is permitted freely to contradict them:…Be it enacted by the General Assembly, That no man shall be compelled to frequent or support any religious worship, place, or Ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief;” – Thomas Jefferson, Virginia Statute for Religious Freedom, January 16, 1786.

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Essay #89 – Principle of a nation’s longevity upon consisting of public and private virtue. Religious freedom, assembling, speaking freely and defending the nation’s liberty. “While the People are virtuous they cannot be subdued; but when once they lose their Virtue they will be ready to surrender their Liberties to the first external or internal Invader. How necessary then is it for those who are determind to transmit the Blessings of Liberty as a fair Inheritance to Posterity, to associate on publick Principles in Support of publick Virtue. I do verily believe, and I may say it inter Nos, that the Principles & Manners of New England produced that Spirit which finally has establishd the Independence of America; and Nothing but opposite Principles and Manners can overthrow it.” – Samuel Adams, in a letter to James Warren, Philadelphia, February 12, 1779.

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Essay #90 – CONCLUSION

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Failures of Utopian Creation Experiments: America’s Founders and Their Warnings Against Attempts to Reinvent Human Nature

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Guest Essayist: Chris Burkett
Judges, International Military Tribunal, 1945-1946. The Nuremberg trials were held by the Allies against representatives of the defeated Nazi Germany, for crimes in World War II.https://en.wikipedia.org/wiki/Nuremberg_trials#/media/File:Color_photograph_of_judges'_bench_at_IMT.jpg


History furnishes plenty of examples, especially in the Nineteenth and Twentieth Centuries, of revolutions that attempted to create Utopian societies. From the French Revolution, which attempted to completely recreate society in every way in the name of equality, to the Russian Revolution, which attempted to recreate the human mind by erasing all concepts of the “private” and the “individual,” these Utopian experiments all have one thing in common: they either ignore or reject the idea of unchanging human nature, or claim that human nature is malleable or perfectible and can be reinvented. The American Founders would argue that this is why they have all failed, or will fail, in the end.

To be sure, the Founders understood from their own experiences and actions that change – and sometimes revolution – is necessary to bring about political, social, moral, and economic progress to make life better and more just for human beings. But the Founders had the prescience to see the danger of being too radical and abandoning all tradition and experience for the sake of some untested visionary idea of a perfect society. James Madison, in The Federalist No. 14, urged his fellow Americans to be open to the new – one might say “experimental” – aspects of the proposed United States Constitution. “Hearken not to the voice,” Madison wrote, “which petulantly tells you that the form of government recommended for your adoption is a novelty in the political world; that it has never yet had a place in the theories of the wildest projectors; that it rashly attempts what it is impossible to accomplish.” On the other hand, Madison acknowledged that there are some wholly new aspects of the proposed form of government. “But why,” he continued, “is the experiment of an extended republic to be rejected, merely because it may comprise what is new? Is it not the glory of the people of America, that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience?” To embolden his fellow citizens to attempt this experiment, Madison appealed to the example of the American Revolution itself:

Had no important step been taken by the leaders of the Revolution for which a precedent could not be discovered, no government established of which an exact model did not present itself, the people of the United States might, at this moment have been numbered among the melancholy victims of misguided councils, must at best have been laboring under the weight of some of those forms which have crushed the liberties of the rest of mankind. Happily for America, happily, we trust, for the whole human race, they pursued a new and more noble course.

Alexander Hamilton, in The Federalist No 31, also wrote on the need to combine a degree of boldness with prudence in revolutions. “Caution and investigation are a necessary armor against error and imposition,” Hamilton wrote.

But this untractableness may be carried too far, and may degenerate into obstinacy, perverseness, or disingenuity. … The moment we launch into conjectures about the usurpations of the federal government, we get into an unfathomable abyss, and fairly put ourselves out of the reach of all reasoning. Imagination may range at pleasure till it gets bewildered amidst the labyrinths of an enchanted castle, and knows not on which side to turn to extricate itself from the perplexities into which it has so rashly adventured.

Though the Founders understood the need for “experimentation” in order to make society better, they also understood that such experiments must be undertaken with a kind of prudence and judicious awareness of the realities and limitations imposed by human nature. In The Federalist No. 10, James Madison addressed those who believe that faction can be eliminated entirely from society, and reminds them that the causes of faction are rooted in human nature. To achieve a truly faction-free society, one must either eliminate or change human nature, which, in either case, would require a tyrannical government to accomplish. Madison reminded us again in The Federalist No. 51 that human nature should temper our expectations for establishing successful Utopian regimes. “But what is government itself,” Madison asked,” but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”

In The Federalist No. 37, Madison reflected on how the Constitutional Convention in 1787 combined political innovation tempered with prudence and a due regard for experience to create the proposed Constitution. The mode in which the Constitution was written – by a body of 55 delegates from twelve states over the course of three and a half months – was itself an experiment in constitution making. Madison observed, “The novelty of the undertaking immediately strikes us. … The most that the convention could do in such a situation, was to avoid the errors suggested by the past experience of other countries, as well as of our own; and to provide a convenient mode of rectifying their own errors, as future experiences may unfold them.” Madison conceded that the proposed Constitution was not perfect; nor would it establish a perfect form of government. But Madison argued against letting the perfect be the enemy of the good, and acknowledged that the imperfections arose, in part, from the realities of human nature and of imperfect human beings. As Madison wrote:

Would it be wonderful if, under the pressure of all these difficulties, the convention should have been forced into some deviations from that artificial structure and regular symmetry which an abstract view of the subject might lead an ingenious theorist to bestow on a Constitution planned in his closet or in his imagination? The real wonder is that so many difficulties should have been surmounted, and surmounted with a unanimity almost as unprecedented as it must have been unexpected. It is impossible for any man of candor to reflect on this circumstance without partaking of the astonishment. It is impossible for the man of pious reflection not to perceive in it a finger of that Almighty hand which has been so frequently and signally extended to our relief in the critical stages of the revolution.

Hamilton echoed this sentiment as well in The Federalist No 85. Hamilton addressed those who would reject the proposed Constitution because it was imperfect. “‘Why,’ say they, ‘should we adopt an imperfect thing? Why not amend it and make it perfect before it is irrevocably established?’” Hamilton’s response invoked, again, the realities of human nature:

I never expect to see a perfect work from imperfect man. The result of the deliberations of all collective bodies must necessarily be a compound, as well of the errors and prejudices, as of the good sense and wisdom, of the individuals of whom they are composed. The compacts which are to embrace thirteen distinct States in a common bond of amity and union, must as necessarily be a compromise of as many dissimilar interests and inclinations. How can perfection spring from such materials?

In summary, to paraphrase Hamilton from The Federalist No. 6, though it is reasonable for us to aim at progress through prudent change and experimentation, one must be far gone in Utopian speculations to believe that human beings can ever achieve a completely perfect society. History has vindicated the Founders’ advice on this through many examples of Utopian experiments that have resulted in tyranny, oppression, and death for many people.

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

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America’s Founding Knowledge of Failed Utopian Ideologies: Establishing a U.S. Constitution Based on Tradition and Natural Rights to Prevent Tyranny

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Guest Essayist: Joerg Knipprath
Skulls from the killing fields, Cambodia, 1975-1979, killing of Cambodians by the Khmer Rouge under the Communist Party of Kampuchea general secretary Pol Pot, 1.5 – 2 million deaths.https://en.wikipedia.org/wiki/Cambodian_genocide


Utopianism appears to be inbred in the human brain—the desire for the perfect life, however a person might define that. Parents tell children to “follow their dreams.” Adults, too, often follow suit. Examples abound, from the ‘49ers of the California Gold Rush, to the “drop-out” hippie communes of the 1960s, to current athletes and entertainers. From print publications to electronic media, the protagonists of many stories—fictional or true—are those who “followed the beat of their own drum.”

This human trait is admirable and is something which marks us as more intellectually complex than brute animals. Aristotelian understanding of “happiness”—eudaimonia—is that quest for a fulfilled and flourishing life, to be “truly human.” One might never fully attain that state, or, Aristotle advises, one might not fully comprehend it until one is close to death. Even the failure of such a quest, though, can teach valuable lessons. A person might end the journey to become a singer, once she realizes that the agitation among the neighborhood’s cats stem from the sounds she emits. Instead, perhaps a new dream to become a talent agent forms to motivate her. Looked at another way, even if her utopian vision fails completely, it likely affects only her and perhaps a few around her.

By contrast, utopianism at the level of societies is much more dangerous to human flourishing. At that scale, failure, such as the collapse of a polity, affects multitudes in a profoundly existential manner. The ship of state requires a calm hand at the wheel. Phronesis, the classical virtue of practical wisdom, must control, not utopian passion. The statesman must have the clear ability to make the moral and practical choices which conduce best to the well-being of the community.

Still, there lurks the unsatisfied yearning to achieve, or to return to, the perfect society. It is the psychological desire to return to a Garden of Eden and a state of perfect innocence. From a Neo-Platonic perspective, which influenced the writings of St. Augustine and other early Christians, this yearning might reflect the human soul’s longing to attain union with the ultimate Good, or God.

Writers since ancient times have dabbled in philosophic creation projects of ideal societies. Plato’s 4th-century B.C. Politeia (The Republic), his prescription for a government run by a “guardian class” of philosopher-kings, is an early example. Thomas More’s 1516 book Utopia about an ideal society dwelling on an idyllic island, is another. More recently, Karl Marx’s writings about the process of historical transition which ultimately would end class strife through the establishment of a classless, communist society, dazzled many acolytes. Common to these three particular works, it should be noted, was opposition, in some manner or another, to private property. Another commonality was a degree of hostility to the traditional nuclear family structure.

At least the first two of these works are not necessarily to be taken at face value. The revolutionary changes which would be necessary to establish Plato’s ideal republic conflict with fundamental philosophic views he expressed in other writings. Moreover, he was quite clear about the inevitability that the project would fail due to the passions which are part of human nature. His work is a warning at least as much as it is a blueprint.

More’s work is satirical through and through, from the book’s title (a play on two similar sounding Greek words meaning no place—Utopia—and perfect place—Eutopia), to the names of various places and persons within the work, to the customs of his island’s denizens. It was satire of English society, but also a warning about societies unmoored from Christian ethics.

Along with utopian philosophies have come utopian projects. The Plymouth Rock Colony of the Pilgrim Fathers in 1620 was organized initially along communist principles of land cultivation. The disastrous economic consequences from that brief, two-year experiment threatened the very existence of the colony. Fortunately, the misstep was soon corrected. A similar fate awaited Robert Owen’s utopian “socialist” colony New Harmony, Indiana, which turned from a prosperous religious settlement when sold to Owen in 1825 to an economic shambles by 1828. The religious predecessor had also held property in common, but within a tightly-knit religious community. Owen’s associates lacked any strong bonds of community. As one contemporary commentator noted, “There are only two ways of governing such an institution as a Community; it must be done either by law or by grace. Owen got a company together and abolished law, but did not establish grace; and so, necessarily, failed.” He might have added one additional approach, the use of relentless force.

Often, these utopian communities are driven by a fervent vision of a new type of society founded on religious principles. They seek to create an earthly community close to God. Besides the Pilgrims, the Shakers and other charismatic groups come to mind. Others, like the Owenite socialists are motivated by more secular ideologies. Sometimes, an odd brew of messianic zeal and political ideology is blended, as in the “apostolic socialism” of Jim Jones’s People’s Temple in Guyana. These groups eventually adapt their dogma to the complexities of human nature and the real-world challenges of social living, as the Pilgrims and the Latter Day Saints did. Or, they disintegrate, as was the fate of the Owenites and the Shakers. Tragically, some come to a violent end under the thrall of a toxic “prophet,” as did the unfortunates of the People’s Temple.

Another factor which contributes to the instability of utopian projects is the scale of the venture. The communities previously mentioned were comparatively small. The Aristotelian ranking of associations from the family to the clan to the polis encompasses ever greater numbers. As those numbers increase and the members’ relationships to each other become more distant, the bonds become looser. Human nature is, essentially, selfish. Self-interest is not necessarily bad. Killing an attacker to save one’s own life has long been recognized as the most fundamental of natural rights. However, another human characteristic, more developed than in lesser species, is altruism.

Altruism, and one’s willingness to incur burdens for the benefit of another, is most pronounced in regards to those whom we “know.” The bonds of love are strongest towards immediate family members. They are also present, but less intensely, towards the extended family. Beyond that lie the still significant bonds of friendship about which Plato and Aristotle mused at length. Aristotle considered the highest form of friendship that which is maintained not for what one might get out of it, but, instead, what is done for the benefit of the other. He also considered friendship as the key measure of proper self-government in the polis. At some point, however, the number of residents within the community might grow too big for the mutual interactions required to maintain friendship. As that number grows, the psychological tension between self-interest and true altruism inevitably favors the former.

For example, a “communist” approach to work and reward can succeed within a family, perhaps even an extended one of longstanding relationships. Trouble arises when the relationships are not familial. To eliminate this inequality of sentiment, utopian societies seek to undermine or abolish the family and other voluntary affinity groups, which itself is doomed to fail and simply accelerates the group’s collapse. A large utopian society, whose members are not bound together by religion or by rules derived from long-established customs which reflect the traditional ordering within stable communities, requires increasingly brutal force to maintain commitment to the utopian project. Pol Pot’s devilish regime in Cambodia nearly half a century ago is a notorious example of this, as memorialized in the chilling movie The Killing Fields.

No matter how intellectually promising and rationally organized the effort is, human nature and passions will derail the utopian project. Plato laid the problem at the feet of eros—passionate love and desire—which upends the controlled marriage and mating program his ultra-rational utopia required. Among the rulers, nepotism and greed manifest themselves. It is hardly shocking that Fidel Castro acquired a wealth of nearly $1 billion at the time, all the while exhorting the unfortunate subjects in his impoverished nation to sacrifice for la Revolución. The inevitable failings of the system set off a hunt for scapegoats, those wreckers who do not show the requisite zeal and who harbor counterrevolutionary or other heretical views.

Within societies which are not openly pursuing some political or religious utopia, there may nevertheless be strong currents of utopianism. In our time and place, the extreme emphasis on risk avoidance is a utopian quest. It has resulted in a bloated legal and administrative apparatus as smaller and more remote and dubious risks are targeted. Economic and social costs are ignored as a health and safety security state takes shape. Those who dissent from the secular millenarian orthodoxy are liable to be marginalized or cast aside like religious heretics. Individual rights of association, religion, providing for oneself and one’s family, and bodily autonomy are subject to the guesses and whims of unelected credentialed “experts.” Yet these measures, when pursued robotically for some ideal beyond what practical wisdom would advise, fail or produce only marginal benefits, often at great cost. Even if they are abandoned, the damage has occurred.

In a related manner, there has been a decades-long quixotic quest to create emotional placidity. While not socially harmful if done on an individual, voluntary basis, compelled “treatments” have been a favorite of ideologues to deal with dissenters. The Soviet Union was infamous for its psychological analyses steeped in Marxist utopianism and its use of political dissent as “red flags” of psychological “deviance.” But the problem festers closer to home, as well. From state-applied electric shock therapy and lobotomies in the past, to the modern approach of psychotropic drugs, a therapeutic totalitarianism has been spreading. Those who dissent, especially parents who balk at such drug use or at school “safe zone” counseling done behind their backs, are liable to find themselves ridiculed or worse.

The delegates to the Philadelphia Convention were educated in classic writings and western history. They were not naïfs about human nature or politics. They understood lessons from the failures of regimes and the dangers of utopian projects, as did their opponents in the debate over ratification. Moreover, their own experience from the Revolutionary War, the Articles of Confederation, and service in their state governments had inured them to utopian speculations. Illustrative of the skepticism is a letter Alexander Hamilton wrote even as the struggle for independence still hung in the balance in 1781, “there have been many false steps, many chimerical projects and utopian speculations.” He noted that the most experienced politicians were Loyalists. He was registering his complaint about the lack of political sophistication among his co-revolutionaries in the conduct of the war, the adoption of the Articles, and the drafting of state constitutions.

That is not to say that the supporters and opponents of the United States Constitution lacked political and philosophic bearings. Most had a sense of what they wished to achieve, set within a coherent broader philosophic framework. The historian Forrest McDonald, in his far-reaching and detailed analysis of the framing of the Constitution, classifies the delegates into two groups, “court-party nationalists” and “country-party republicans,” analogous to the British Tory and Whig parties, respectively. Among the best-known such nationalists were Washington, Hamilton, Benjamin Franklin, James Wilson, Gouverneur Morris, and Robert Morris. Among the notable republicans were Elbridge Gerry, George Mason, Luther Martin, and Edmund Randolph. Others were more difficult to label. McDonald places James Madison in between the two groups and somewhat harshly judges the latter “an ideologue in search of an ideology.” He claims that by temperament Madison thought matters through to the detail and preferred “the untried but theoretically appealing, as opposed to the imperfections of reality.” Yet, he also concedes Madison’s willingness to abandon politically untenable positions as needed.

A third group, whom McDonald considers arch-republican ideologues, did not attend for varied reasons. They included Thomas Jefferson, John Adams, Sam Adams, Richard Henry Lee, and Patrick Henry. Some of these outsiders and other opponents of the Constitution presented more consistently “principled” arguments, but it is always easier to attack someone’s work than to provide a comprehensive and workable alternative.

None of the groups at the convention had a majority. Moreover, they were not ideological in the modern sense of positing a single abstract moving cause for all human action in the private and public realms. The closest might be the idea that humans act from self-interest. But there was nothing like Marxist economic determinism or Freudian psychoanalysis or current Marxism-derived Critical Race Theory. The various broader theories of government delegates favored still resulted in differences which must have seemed intractable, at times. Some delegates left out of frustration that their ideas about the proper constitutional order were not sufficiently realized.

But most held on and difficult compromises were eventually reached. Even the matter which deadlocked the convention for weeks and threatened more than once to tear it apart, namely the structure of Congress and the mode of representation, ultimately was resolved mostly in favor of the small states through Roger Sherman’s Connecticut Compromise. So was the controversy over Congress’s powers. The small-state proposal of an enumeration of specific powers supplemented by an enabling clause was adopted over a more national position favored by Madison that Congress would have power to address all issues which affected the nation where individual states would be “incompetent to act.” The slavery question was generally avoided. The concept was simply euphemized, rather than expressed. Specific issues, such as the fugitive slave clause and the three/fifths clause to apportion representatives and direct taxes were borrowed from the Northwest Ordinance of 1787 and a failed amendment to the Articles of Confederation. Whatever might have been the hearts’ desires of various philosophically committed members, compromise prevailed. The result was a system which was partly federal and partly national, as Madison laid out the particulars in Number 39 of The Federalist.

As remarked in previous essays, the authors of The Federalist emphasized the influence of experience, not idealism, on the convention’s deliberations, and the process of compromise, not purity, which resulted in a plan suited to the practical demands of governing. Aside from Hamilton’s noted aphorism in Number 6 of The Federalist, “Let experience, the least fallible guide of human opinions, be appealed to for an answer to these inquiries,” the authors repeatedly drew on experience under the Articles of Confederation, the state constitutions, and earlier European and ancient systems. That was, of course, also what the convention had done. In Number 38, Madison mocked the variety and inconsistency of objections and their often vague and general nature. While his sarcasm disparages the constructive and systematic efforts of opponents such as the “Brutus” essays by New York’s Robert Yates, Madison’s specific examples illustrate the spirit of pragmatism at the convention. He declared “It is not necessary that the [Constitution] should be perfect: it is sufficient that the [Articles are] more imperfect.” In Number 41, he acknowledged, “…that the choice must always be made, if not of the lesser evil, at least the GREATER, not the PERFECT good; ….” [Emphasis in the original.]

Perhaps the best summation of the pragmatism which steered the delegates as they proceeded with their work was voiced by Benjamin Franklin. He rose on the day of the final vote and implored his colleagues, “Thus I consent, Sir, to this Constitution. Because I expect no better, and because I am not sure, that it is not the best. The opinions I have had of its errors, I sacrifice to the public good….I can not help expressing a wish that every member of the Convention who may still have objections to it, would with me, on this occasion doubt a little of his own infallibility, and to make manifest our unanimity, put his name to this instrument.”

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

 

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Trade and American Independence: Establishing a United States Constitution for Lasting Political and Economic Freedom

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Guest Essayist: James C. Clinger
Lord Clive mtg w/ Mir Jafar after Battle of Plassey, 1757, est East India Co as a military & commercial power, considered beginnings of British Empire. Painting by Francis Hayman, circa 1760https://commons.wikimedia.org/wiki/File:Clive.jpg


The year 1776 was notable not only for the Declaration of Independence, but also for the publication of a notable work of scholarship that represented a dramatic change in not only the economic systems of the world but also the shape of the governmental arrangements of the United States, Britain, and other nations. An Inquiry into the Nature and Causes of the Wealth of Nations, by a Scottish academic, Adam Smith, was published at about the same time that the Continental Congress, thousands of miles away, considered a resolution to declare independence from Great Britain.[i]

Smith’s work is today largely considered an economic monograph extolling the virtues of capitalism, but in its own day its contribution was somewhat different. The word “capitalism” was not in wide use at that time. “Economics” was not considered an identifiable academic discipline or focus of study. Smith’s university teaching career was largely concerned with what was then called “natural philosophy.” In the Wealth of Nations, Smith suggested the free exchange of goods and services could promote not only material wealth, but also improve human well-being in a more general sense.

In making these arguments, Smith took the opportunity to attack human contrivances that thwarted free exchange. Slavery and colonialism were also criticized, and an extensive critique of the economic thinking and practices known as mercantilism became a central focus of the book.   Mercantilism was a fundamental basis for colonial rule, and the opposition to mercantilist practices was part of the justification for the American Revolution. Similarly, the breakdown of mercantilism as a defensible basis for imperial control of territory led to British willingness to permit its colonies to gain their independence.

Mercantilism was an economic system that contended that national wealth was promoted by government interventions to encourage trade and investment in certain industries and enterprises. In particular, mercantilist advocates believed that the government should conserve national reserves of gold (and sometimes silver), which were used in international trade for goods and resources that could not be found within a nation. If a country controlled colonies, purchases could be made without using gold, thus sparing reserves that could be used for essential international transactions. The colonial power would dictate the permissible terms of trade in which its colonies could participate, usually compelling the colonies to trade only with the mother country or with other colonies within the same empire. Transactions with other countries would be forbidden or subject to very high tariffs.

Before the revolution, the American colonials chafed at the terms of trade dictated by the British. In 1774, the British imposed the Intolerable Acts as a punitive measure in response to the Boston Tea Party and other protests. The protests in the American colonies were largely demonstrations against some of the taxes (e.g., the Stamp Act) and the exclusive monopolies over many import enterprises given to the East India Company. That same year, the First Continental Congress enacted the Articles of Association as a trade boycott against the British. Many American colonial enterprises, including that owned by John Hancock, circumvented British trade restrictions by doing business with Dutch firms and other colonies. In the Declaration of Independence, two of the complaints prominently noted were the claims that the British were “cutting off our Trade with all parts of the world” and “imposing Taxes on us without our Consent.”[ii] These complaints were common among colonial people throughout the world, not only within the British Empire but within the colonies of all the imperial powers.

After the revolution, the Founders made strategic choices that affected the international trade practices that the new nation would follow.   Tariffs and trade restrictions were still permissible, but procedural constraints limited their use. Within the United States Constitution, the Founders established a particular process by which taxes, including tariffs, would be enacted. Only Congress could approve taxes, and all money bills would originate in the House of Representatives, the only offices at that time filled through popular election.[iii] Foreign entanglements presumably could be minimized by the requirement that all treaties must be approved by a two-thirds vote of the present members of the Senate.[iv] The Senate was filled with representatives of the states originally chosen by the legislatures of the states. The requirement that a two-thirds vote of the members of the Senate consent to a treaty guaranteed that any treaty that took effect would have broad support among the various states. A measure that had the support of a simple majority of the general population would not be sufficient. A super-majority of the members of the representatives of states in the Senate was required. It is important to note that the equal representation of states in the Senate is one aspect of the Constitution that was regarded so essential that it could never be changed through constitutional amendment.[v]

British colonialism continued long after the American Revolution, but its economic underpinnings gradually eroded over time. Shortly after the end of the Napoleonic wars, Britain imposed a high tariff on imported agricultural products. This was reversed in 1846 with the repeal of the so-called “Corn Laws,” beginning a general trend toward freer international trade and away from protectionism.[vi] There was a short-term return to protectionist practices in the 1930s after the United States enacted the Smoot-Hawley Tariff Act, but Britain returned to a freer trade position after World War II.[vii]

Suffrage within Britain expanded throughout the nineteenth century, and the British found it harder philosophically to defend its dictating of the terms of trade with its colonies without granting them a voice in their own affairs. These denials of both economic and political freedoms seemed particularly unfair when the colonized peoples differed racially, ethnically, religiously, and culturally from the British. In fairness, it should be said that the British, more so than many imperial powers, did permit colonial peoples to elect the members of their representative assemblies and to retain the use of their native languages in schools and government offices.[viii] In general, the British colonies fared better economically than the colonies of many other European nations.[ix]

In terms of geographic territory, the British Empire reached its peak around 1920, but it had already loosened its control over many of its colonies and some, such as the United States, had already gained their independence. After World War II, many British colonies and protectorates separated from British control, even though most remained within the British Commonwealth. The Bretton Woods Accord established the American dollar as the primary currency to be used in international exchange. The British faced pressure from both its allies and from international organizations, such as the United Nations, to decolonize. New international economic institutions, such as the General Agreement on Tariffs and Trade and its successor organization, the World Trade Organization, encouraged trade liberalization. A few pieces of territory remain British colonies in far-flung parts of the globe, but the old empire has been dismantled as the economic and political basis for its existence has disappeared.

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

[i] Smith, Adam, and Edwin Cannan. The Wealth of Nations. New York, N.Y.: Bantam Classic, 2003.

[ii] Declaration of Independence

[iii] United States Constitution, Article I, Section 7

[iv] United States Constitution, Article 2, Section 2

[v] United States Constitution, Article V

[vi] O’Rourke, Kevin H. 2000.  “British Trade Policy in the 19th Century: A Review Article.”  European journal of Political Economy 16:: 829-842.

[vii] de Bromhead, Alan, Alan Fernihough, Markus Lampe, and Kevin Hjortshøj O’Rourke. 2019. “When Britain Turned Inward: The Impact of Interwar British Protection.” American Economic Review 109 (2): 325–52.

[viii] Lange, Matthew, Tay Jeong, and Charlotte Gaudreau. 2022. “A Tale of Two Empires: Models of Political Community in British and French Colonies.” Nations & Nationalism 28 (3): 972–89.

[ix] Lange, Matthew, James Mahoney, and Matthias vom Hau. 2006. “Colonialism and Development: A Comparative Analysis of Spanish and British Colonies.” American Journal of Sociology 111 (5): 1412–62.

 

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Prescience on Decline of the British Empire in Brutus No. VIII: Warnings That Influenced Formation of the United States Constitution

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Guest Essayist: Jay McConville
Battle of Waterloo, 1815 ended in the defeat of Napoleon, marked beginning of Pax Britannica, painting by William Sadler.https://en.wikipedia.org/wiki/British_Empire#/media/File:Battle_of_Waterloo_1815.PNG


“I can scarcely contemplate a greater calamity that could befall this country, than to be loaded with a debt exceeding their ability ever to discharge.” (Anti-federalist Papers, Brutus No. VIII, 1789)[1]

Many Americans have a warm spot in their hearts for the British, by which they usually mean the quaint English people in the television shows they watch. For example, BritBox, the subscription service that features United Kingdom (UK) television shows, reported over 1 million U.S. subscribers by the first quarter of 2022, after only five years of operation.[2] Blessed with a rich history, a culture that often exudes sophistication, and a command of the language that (unfortunately) escapes most Americans, the UK is regarded highly by most Americans as our friend, our partner, and our kindred spirit in culture and world affairs. We share a language and history, of course, as the original U.S. states were British colonies. That early relationship was fraught with conflict, so our positive current alliance is better traced to our partnership fighting tyranny in World War I, II, and the Cold War. Many Americans also trace their lineage to the UK, or one of its former colonies or territories, so this tiny island nation is a favorite vacation spot for Americans. One British Airways survey found that “[t]hree in ten Americans said the UK is their favourite country and one in seven said they would move to Britain if they had the chance.”[3]

Yet the little nation that Americans love so much was once the most powerful, fierce, dominating, and wealthy empire on the earth. In fact, “by the end of the 19th century, the British Empire comprised nearly one-quarter of the world’s land surface and more than one-quarter of its total population.”[4] The number of current countries that were once part of its colonial empire are too numerous to list here, but included varying levels of control over much of Canada, Australia, New Zealand, India, Pakistan, Singapore, Kenya, Hong Kong, and South Africa just to name a few. The empire was built on economic adventurism, naval power, military domination, and colonial control. It developed over several hundred years, accelerating when the British led a coalition to defeat Napoleon at Waterloo in 1815. It was later victorious in both World War I and II, ending competition for European hegemony from their industrial rival Germany. Yet colonial revolts, including the independence of India in 1947, proved too much to sustain and by 1956, with the Suez crisis, the empire was in full collapse. With the return of Hong Kong to China in 1997, the once great empire was no more.

Why this occurred is the subject of many books, movies, and academic papers. Boiled down, however, the decline can be traced to the consequences of an extended empire, the costs of maintaining military forces in those lands, unsustainable debts, and the eventual loss of the privileged economic position of the British pound sterling. In summary, the UK had failed to notice or heed the warnings Brutus provided to the United States, encapsulated in the quote above.

Brutus, an anonymous American writer opposed to the adoption of the United States Constitution, was the nom de plume used by the author (or authors) of the Anti-federalist Papers. These papers paralleled the Federalist Papers, arguing against adoption, fearing the federal government was being set up as too powerful. While, as we know, the Constitution was eventually adopted, the Anti-federalists did much to influence its final form, and Brutus’ papers provide, even to this day, important reminders of the dangers of a too-powerful central government.

What do the Anti-federalist Papers of Brutus tell us about what happened to the British Empire, and how do those warnings apply to the United States today?

While the Anti-federalists had many concerns, the most germane to these questions are those articulated in Brutus No. VIII. That paper, published in 1789, continued the argument that the Constitution’s “necessary and proper” clause (Article I, Section 8) gave the federal government too much power. That article begins, “The Congress shall have the power” and then lists the enumerated powers of the federal government. The Anti-federalists believed that clause meant, as per Brutus in the earlier paper “Brutus No. VI” (1787), the federal government “had no other limitation than the discretion of the Congress” and this could, in the future, “destroy all the power of the state governments.”[5] Germane to these questions then, are the enumerated powers that give the national government the ability to raise, borrow, and spend money, and specifically to maintain standing military forces. Brutus warned that these unlimited powers threatened the economic future of the country and the sovereignty of the people. Such an exclusive power would amount to “unlimitted authority and controul over all the wealth and all the force of the union.” Standing armies, he argued, drain the nation’s resources, and since they held allegiance to the military command and not the Constitution, might, in a crisis, overthrow an elected government. He quotes a British Member of Parliament (“Mr. Pulteney”[6]) to summarize the concern: “I have always been, and always shall be against a standing army of any kind; to me it is a terrible thing, whether under that of a parliamentary, or any other designation; a standing army is still a standing army by whatever name it is called…” (Brutus No. VIII)

True, in the end, the British Empire was not brought down by a military coup, but instead by the economic burden of their global military responsibilities, including efforts to maintain their extended colonies and the cost of two world wars. These expenditures drained the treasury and turned the once powerful nation into a debtor – just as Brutus had warned America’s Founders could happen here.

Riding on its military might, the British Empire had at one time enjoyed economic dominance unparalleled in history. The British pound sterling was the world’s primary “reserve currency” in the 19th and first half of the 20th century. This gave the British huge economic advantage, as their currency was held in large quantities by governments and banks across the globe. Those who wished to conduct international trade had to buy British pounds to pay foreign entities, make international investments, and participate in other global economic activities. But a reserve currency is also called an “anchor” currency, as it is chosen due to the economic stability of the nation that issues it. That stability relies on the ability of that nation to pay its debts. Exhausted by war and the military cost of its empire, the pound sterling lost that status to the U.S. dollar in 1944, when allied leaders decided to link world currencies to the U.S. dollar. At the end of World War II, British debt had reached 200 percent of its Gross Domestic Product (GDP). This debt, worsened by poor economic policies and domestic spending, eventually led to Britain seeking debt relief from the International Monetary Fund in 1976. The WWII loans from the United States were only paid off in 2006.[7] After WWII, the United States, which had limited its military adventurism (with notable exceptions) up to that point, had eclipsed the British Empire.

Of note, while there was no coup, viewers of the TV show “The Crown” and history buffs also know that one – this time in 1968 and in response to the ongoing and precipitous decline of the empire – was nearly initiated by a group of British military, business, and political interests led by Lord Mountbatten[8], who had held multiple high positions in the British military, including first sea lord, admiral of the fleet, chief of the United Kingdom Defense Staff, and chairman of the Chiefs of Staff Committee[9]. While, thankfully, that did not happen, planning for it had commenced. By 1968 the Empire was through.

Fast forward to today, and we see that Brutus’ concern is once again important to consider here in the United States. America now holds the privileged position as the world’s top reserve currency. The U.S. dollar accounts for 59 percent of reserves held by central banks across the world, which is mostly held in cash or U.S. bonds. Nations across the globe use the U.S. dollar to conduct international financial activity, which accrues great benefit to our economy. Yet, the debt for those bonds exceeds $13 trillion[10] and the total U.S. National Debt stands now at nearly $31 trillion, or $243,000 per taxpayer and 123 percent of our GDP.[11]

It is hard to imagine anyone wants to follow the example of the British Empire, yet our military costs have continued to grow year after year, including massive expenditures for bases around the world, and most recently involvement in the Global War on Terror and conflicts in Iraq and Afghanistan. We are now, additionally, a primary funding source of Ukrainian resistance to Russian aggression, committing $54 billion.[12] The 2023 National Defense Authorization Act, which passed the House in July 2022, included a record $850 billion in total defense spending. (The Senate received the bill in August 2022.[13])

This is in addition to the high levels of domestic spending on such programs as Medicare, Medicaid, Social Security, various transfer programs, as well as funds for operating the departments of the federal government. The President’s budget request for 2023, still being considered by Congress, is over $5 trillion. That request includes over $300 billion in interest payments on the national debt alone, a burden that is rising rapidly and which will continue to do so for the foreseeable future. One Congressional Budget Office (CBO) report estimated that the U.S. taxpayer will pay over $8 trillion in interest on the debt between 2023 and 2032.[14] That is just interest, not principle, and equals over $25,000 for every one of America’s 325 million inhabitants.

The question is whether we can continue to maintain this level of debt spending, or whether, in the words of Brutus, Congress is well on the way to creating a “national debt, so large, as to exceed the ability of the country ever to sink.” (Brutus No. VIII). Should we continue down that path, the ability to meet this debt will eventually come into question. Should we, like the UK, damage the full faith and credit that the world holds in our ability to do so, and we lose our reserve currency dominance, the repercussions could be severe. It is something that we need to think carefully about.

In the words of Brutus, “I take it for granted, as an axiom in politic, that the people should never authorise their rulers to do any thing, which if done, would operate to their injury.”

Most Americans cannot imagine a massive decline in our world position, nor that this nation is at any risk from a coup or revolt against the federal government. One is reminded, however, of the wise words of Ronald Reagan, who, like Brutus, warned us that freedom and liberty are not the default for any nation. “Freedom is never more than one generation away from extinction. We didn’t pass it on to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same, or one day we will spend our sunset years telling our children and our children’s children what it was once like in the United States where men were free.”[15]

There have been many efforts to reign in the power of the Congress to borrow and spend, whether on domestic programs or military forces. The Balanced Budget Amendment to the Constitution, one that Brutus would no doubt support, is proposed year after year, and almost passed in 1995 and 1997, failing to achieve the required two-thirds majority by just one vote.[16] It failed again in 2011. The amendment threatens the ability of Congress to exercise the power that most concerned Brutus, and thus the very people who it controls will have to agree to it for it to pass. Power is seldom, if ever, relinquished voluntarily. So far, that has not happened, and spending continues apace.

Brutus was prescient in his warnings about the central government’s power to accrue debt. The British Empire provides an example of what can happen when a strong central government takes on military and foreign affairs commitments that make that debt unsustainable. So far, the United States has been able to handle its debts and remains an economic powerhouse. The question that is yet to be answered is whether we will maintain this position in the future, and what will happen if we do not.

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

[1] “Brutus VIII.” New York Journal 1789-06-15 : Rpt. in The Documentary History of the Ratification of the Constitution. Vol. 15. Ed. Gaspare J. Saladino and John P. Kaminski. Madison: Wisconsin Historical Society Press, 1984. 335-38. Print, as featured in ConSource: https://www.consource.org/document/brutus-viii-1789-6-15/

[2] Thiede, Joshua (2022). BritBox Eyes American Expansion, but Plans to Avoid Content Becoming ‘Transatlantic Pudding’. The Streamable (29 June 2022). https://thestreamable.com/news/britbox-eyes-american-expansion-but-plans-to-avoid-content-becoming-transatlantic-pudding

[3] Kitching, Chris (2014). Brits? You’re all uptight, obsessed by tea, the royals and family trees, say Americans… and no, we can’t understand Geordie accents either, DailyMail.com (5 October 2014). https://www.dailymail.co.uk/travel/travel_news/article-2781088/What-Americans-think-Britains-revealed-survey.html

[4] Augustyn, Adam ed. (n.d.) British Empire: Dominance and dominions. Britannica online https://www.britannica.com/place/British-Empire/Dominance-and-dominions

[5] “Brutus VI.” New York Journal 1789-06-12 : . Rpt. in The Documentary History of the Ratification of the Constitution. Vol. 15. Ed. Gaspare J. Saladino and John P. Kaminski. Madison: Wisconsin Historical Society Press, 1984. 110-17. Print., as quoted in https://consource.org/document/brutus-vi-1789-6-12/20191125163602/

[6] Actually, William Pulteney, a prominent British Member of Parliament who served in the early 1700’s.

[7] Wikipedia (n.d.) History of the British National Debt, retrieved from https://en.wikipedia.org/wiki/History_of_the_British_national_debt#cite_note-Ferguson,_Civilization,_p309-9

[8] BBC (2019). Lord Mountbatten: Did Prince Philip’s uncle attempt to lead a coup against Harold Wilson’s government? History Extra, BBC History Magazine and BBC History Revealed (29 November 2019). https://www.historyextra.com/period/20th-century/lord-mountbatten-did-prince-philip-uncle-attempt-lead-coup-harold-wilson-government-crown-true/

[9] Britannica (2022). Louis Mountbatten, 1st Earl Mountbatten, Britannica online, (21 June 2022). https://www.britannica.com/biography/Louis-Mountbatten-1st-Earl-Mountbatten

[10] Best, Richard (2022). How the U.S. dollar became the world’s reserve currency. Investopedia, (24 June 2022). https://www.investopedia.com/articles/forex-currencies/092316/how-us-dollar-became-worlds-reserve-currency.asp

[11] US Debt Clock.org, retrieved 18 August 2022 from https://usdebtclock.org/

[12] Hennis, Ade (2022). The U.S. has sent billions of dollars in aid to Ukraine – Breaking it all down. Market Realist (11 August 2022), https://marketrealist.com/p/how-much-money-has-the-us-sent-to-ukrainie/

[13] United States Congress, H.R.7900 – National Defense Authorization Act for Fiscal Year 2023, 117th Congress (2021-2022), retrieved 18 August 2022 from https://www.congress.gov/bill/117th-congress/house-bill/7900

[14] Interest costs on the national debt set to reach historic highs in the next decade, May 31, 2022, Peter G. Peterson Foundation, blog, retrieved from https://www.pgpf.org/blog/2022/05/interest-costs-on-the-national-debt-set-to-reach-historic-highs-in-the-next-decade

[15] Reagan.com (2018). Ronald Reagan Freedom Speech. Reagan.com, (31 August 2018), retrieved August 18, 2022 from https://www.reagan.com/ronald-reagan-freedom-speech

[16] Govtrack (n.d.). H.J.Res. 1 (104th): Balanced Budget Amendment, https://www.govtrack.us/congress/votes/104-1996/s158 and Istook, Ernest (2011). Considering a Balanced Budget Amendment: Lessons from History, Heritage Foundation, https://www.heritage.org/budget-and-spending/report/considering-balanced-budget-amendment-lessons-history

 

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Empire for Liberty: The American Founders on Curbing International Domination and Overreach

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Guest Essayist: Thomas Bruscino
Territories that were at one time or another part of the British Empire; United Kingdom and its accompanying British Overseas Territories underlined in red.https://en.wikipedia.org/wiki/British_Empire#/media/File:The_British_Empire.png


Relating the American experience to the rise and fall of empires is trickier than it looks. Empires are complicated morally and historically—none more so than the British Empire—and the United States has its own complicated understanding of its relationship with empire.

“Empire” is no longer a morally neutral term. Most people these days believe “empire” is something universally or exclusively bad. And why wouldn’t people believe that? While it is true that the simplistic Marxist critique of imperialism as late-stage capitalism has had much to do with the bad rap for empires, that does not let empire off the hook. Part of the reason the Marxist view took hold was because most empires have been rapacious and exploitative, if not genocidal. Nowhere was that more evident than in the scramble for Africa, when European powers carved up the continent with little effect but suffering and despair for the local populations. Similar results of empire could be seen throughout the Americas and Asia.

However, not all empires are created equal. Even if we agree all empires are in general bad, some empires are way worse than others, just as some bad empires have had some positive effects. In Monty Python’s The Life of Brian, the Middle Eastern radicals sarcastically ask, “What have the Romans done for us?” The question eventually turns to: “Apart from the sanitation, the medicine, education, wine, public order, irrigation, roads, a fresh water system, and public health, [and peace], what have the Romans ever done for us?”

The line is funny because it is an unexpected contradiction in truths. But it could also be read as a commentary by British actors on the post British empire world. This is not the place to sort out the net positives and negatives of the British empire, nor to explain why the empire eroded over the course of the twentieth century. Here it is only to recognize that the British empire did help bring a measure of order and stability to the international system that certainly was not good for all, but was also more liberal and beneficial than the alternative empires of the time.

In the years around World War II, the British gave up their empire, leaving the question of who would provide order in the international system. During the Cold War, the United States and the Soviet Union competed over who would fill that gap. Interestingly, neither side called themselves an “empire.” In fact, both sides accused the other of imperialism.

The Soviet fall left the United States as the world’s great superpower, and responsible, in some measure, for providing order and stability lest some other, more pernicious power rise and impose a less favorable order on the world. Americans have struggled with what to do in that role. The country has not hesitated to intervene all around the world, often with lethal force, but it has consistently shied away from picking up an explicitly imperial mantle. Even when the United States joined the European and Japanese imperial scrambles around the turn of the twentieth century, Americans, including expansionists like Theodore Roosevelt, generally avoided the word “empire” for describing their foreign policy ambitions.

Frustrated by America’s inconsistency as a great power, some contemporary critics have encouraged the United States to embrace its role as an explicit empire for good. Eager to make their point, the critics have appealed to the language of the Founders, who often did use “empire” to describe the American experiment.

But that is too simple. The Founders used “empire” in specific ways. In many cases, they meant it roughly as a synonym for the country. Federalist 1 stated that the proposed Constitution was about, “the fate of an empire in many respects the most interesting in the world. It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.”

When the Founders did use empire to describe the expansion of the United States, they added important modifiers. Thomas Jefferson’s was the most famous, “we should have such an empire for liberty as she has never surveyed since the creation: & I am persuaded no constitution was ever before so well calculated as ours for extensive empire & self-government.”

Note the common theme. This “most interesting” of empires, this “empire for liberty,” was unique because it was about self-government and freedom internally. If “empire for liberty” sounds now like an oxymoron, that is because it always was. It was an experiment, a new type of empire, built around trying to balance the necessary and inevitable tension between exerting great power and modeling freedom. To make it work, and to revise historian Walter McDougall’s framing, described in his book, Promised Land, Crusader State: The American Encounter with the World Since 1776, the promised land always required the crusader state, and crusader state had to remain the promised land.

It is the inheritance of that tenuous balance that has made subsequent Americans uncomfortable with the word “empire.” That is a good thing. The ugly empires of the nineteenth century clearly were not, and were not trying, to be promised lands of freedom. Without that constraint those empires overreached and fell.

The power and influence of the United States in the world has always strived to be something different. Whatever else that can be said about American expansion and intervention overseas, and there is plenty of room for critique, it has most often been constrained by Americans themselves. Whether through idealistic objectives set by governments in power, contentious domestic politics, or the vocal opposition of small minorities or brave lone voices, the United States has never expanded or intervened without the reminder that such activities threaten the soul of America itself. “She might become the dictatress of the world,” John Quincy Adams said in his famous address on July 4, 1821, but “She would be no longer the ruler of her own spirit.”

From Canada and Mexico, Cuba and the Philippines, Vietnam, and all the way to Afghanistan and Iraq, that reminder has always been there, embedded by the Founders in the American system, meant to constrain all-too-human ambitions of domination. If the United States is to avoid imperial overreach, its people must continue to remember that America’s “glory is not dominion, but liberty,” and always reach accordingly.

Thomas Bruscino is Associate Professor of History in the Department of Military Strategy, Planning, and Operations at the United States Army War College. He holds a Ph.D. in military history from Ohio University and has been a historian at the US Army Center of Military History in Washington, DC and the US Army Combat Studies Institute at Fort Leavenworth, and a professor at the US Army School of Advanced Military Studies. He is the author of A Nation Forged in War: How World War II Taught Americans to Get Along(University of Tennessee Press, 2010), and Out of Bounds: Transnational Sanctuary in Irregular Warfare (CSI Press, 2006), and numerous book chapters. His writings have appeared in the Claremont Review of Books, Army History, The New Criterion, Military Review, The Journal of Military History, White House Studies, War & Society, War in History, The Journal of America’s Military Past, Infinity Journal, Doublethink, Reviews in American History, Joint Force Quarterly, and Parameters.

The views and opinions presented are those of the author and do not necessarily represent those of the U.S. Army War College, the U.S. Army, or the Department of Defense.

 

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Guarding American Sovereignty: The United States Constitution and Its Protections Against World Government Control

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Guest Essayist: Andrew Langer
The Signing of Peace in the Hall of Mirrors, Versailles 1919, painting by Sir William Orpen.https://en.wikipedia.org/wiki/Paris_Peace_Conference_(1919%E2%80%931920)#/media/File:William_Orpen_%E2%80%93_The_Signing_of_Peace_in_the_Hall_of_Mirrors,_Versailles_1919,_Ausschnitt.jpg


The beauty of the American Constitution, as originally conceived, was that its authors recognized the inherent dangers of concentrated power at the highest levels of governance, and created a structure that both constrained the federal government’s powers while at the same time enumerating that the balance of those powers would be retained by state governments (and, by extension, local governments, since most local governments are creations of state governments), and the people.

The American Founders did this because they recognized that the bulk of public policy decision making was best left to levels of government that were closer to the people—those levels of government better understood problems in individual communities and local governments, and governance, were more easily controlled by citizens within those jurisdictions.

But in the wake of World War I, also known as “The Great War” or the “War to End All Wars, there came a call for greater international cooperation by governments, if not some kind of outright “global government” and out of those calls came, first, the League of Nations, and then, after the League of Nations failed to prevent World War II, the United Nations.

The First World War was commonly referred to as “The Great War” because of the war’s truly devastating scale—in terms of both lives lost, and people injured, as well as the impact it had on infrastructure. In fact, across the globe, you can still see the impact the war had on the surrounding environment. As a result, there was a call by leading nations to create some kind of instrument of global cooperation, and disarmament, to prevent just that kind of war from happening again: a “League of Nations.”

And the League of Nations met with limited success, in spite of the fact that the United States didn’t join even with President Woodrow Wilson’s advocacy for just such a league. But because the league failed to grasp geopolitical realities, such as what the sanctions on a post-World War I Germany might have on that nation’s ongoing politics, that body failed to prevent the Second World War from occurring.

It was during World War II that the concept of the United Nations was born—with the cooperation of the United States, Great Britain and the Soviet Union. In 1945, as the war was drawing to a close, the leaders of the Allied powers agreed that following the war’s end, that such a body would be developed. In June of 1945, just after Germany surrendered, the UN Charter was created. In October of 1945, two months after Japan surrendered, the Charter was made real.

To be clear, the United Nations is not a “world government” though there are some who would like it to be. Clark Eichelberger, a 20th century peace activist and advocate for both the League of Nations and the UN, wrote in the Annals of the American Academy of Political Science in 1949 that:

“World government has evolved and will evolve through the United Nations… the United Nations is the beginning of the process we need.”

But in the last seven decades, despite great efforts on the part of some to make a global government manifest, this has not occurred. The UN has no power to tax, no power to directly regulate. Any interference in inter-governmental disputes or in civil conflict can only come with either the agreement of local governments, or, in rare occasions, with the decision of voting members of the United Nations.

When it comes to involvement of the United States, the U.S. relationship with the UN is similar in most respects to how the deals are made with most foreign agreements, i.e., through the Constitution’s treaty powers.  Essentially, from a constitutional perspective, the involvement of the U.S. in the UN is not dissimilar from other bilateral, between the U.S. and one nation, or multilateral, between the U.S. and more than one other nation, international agreements.

In fact, the only way for the United States to be “legally obligated” to cooperative policy decision making by the UN is for Congress to ratify whatever policy United States diplomats are considering signing or have signed. While those obligations are to our partners at the UN, the “legal” portion of it has to do with the agreement the U.S. government has with its people i.e., to only be bound, internationally, through ratified treaties.

This is because those international agreements, once ratified, become U.S. law, and enormously difficult to disentangle once put into place.  Take the North American Free Trade Agreement (NAFTA), for example. Though not an agreement through the UN, it bound U.S. trade policy for decades, and became enormously difficult to reform, despite the negative impacts many in the United States were seeing.

In contrast, the Kyoto Protocols on climate, a climate policy agreement negotiated via the UN, was never ratified by the U.S. Senate. Many in the U.S. had deep and abiding concerns about the impact the policy obligations of Kyoto could potentially have on the U.S. economy. So, while the United States, under President Bill Clinton, signed the Kyoto Protocols, and there were many things that the Clinton administration could do to advance the goals of Kyoto (because of the size of the administrative/regulatory state and the powers that the Executive Branch has in terms of interpreting or re-interpreting existing federal environmental laws), the United States was not bound by the Kyoto protocols, as they would be within a treaty.

Central in all of this is the issue of “sovereignty.” By definition, when the United States, or any nation for that matter, enters into a treaty, they are giving up some measure of that nation’s sovereignty in favor of international cooperation usually as a result of the combination of negotiation and compromise.

As was demonstrated by the withdrawal of Great Britain from the European Union, multinational cooperative governance can have huge implications for individual member nations and their citizens—something British Prime Minister Margaret Thatcher had warned about when the EU was created. The further removed from the local population that government control becomes, the more onerous the burdens those governments can impose. With that comes a real difficulty in forming policies that reflect what local populations need and takes steps to protect those populations from harm.

It could be said that Prime Minister Thatcher was echoing the concerns raised by her predecessor in office, Winston Churchill, who, despite being instrumental in the creation of the UN, had concerns of his own.  As reported by the New Republic in 1949:

“Churchill, as he confessed at The Hague in May, 1948, never accepted the concept of the United Nations. He feared the consequences of ‘a system where there was nothing between the supreme headquarters and the commanders of the different divisions and battalions.’ He wanted a world organization made up of representatives of regional associates.”

Thankfully, given protections that the U.S. Constitution affords, the people of the United States can rest assured that their sovereignty will be protected from a United Nations becoming the kind of multinational governmental behemoth that the EU became.

This is due, in no small measure, to the United States Constitution’s mandates about the Senate’s advise and consent role in terms of treaty ratification—if the foreign relations team of a U.S. president were to fail at their job or to be seriously compromised in some measure in terms of international negotiation, and as a result the U.S. were to give up a great deal of its independence, its sovereignty, it is left to the Senate to ensure that the interests of the people of the United States are protected, and that the agreement should not be ratified.

It is important to also note that Congress has a vital role to play in terms of internationally cooperative military activities. The UN has no standing army, another aspect of its existence that makes it fall short of a “world government.” It relies on its member nations in order for it to engage in any military action, usually under the auspices of “peacekeeping.”

The President is obligated to inform Congress of any military action that falls short of a “war”—and the President has 90 days before Congress must take action on whether to continue such operations.

In terms of ongoing “peacekeeping” operations, such as those that occurred in the Balkans during the 1990s after the collapse of the Yugoslavian government, Congress also has the power to give or deny funds to such efforts. If Congress doesn’t want U.S. military personnel involved in a specific peacekeeping mission, then Congress can specifically block the Executive Branch from spending funds on that mission.

In terms of the relationship between the United States and the United Nations, the obligations of the U.S. are not entirely different than any other treaty-governed relationship that the U.S. may be obligated to.  The issues of sovereignty and compromise remain the same—and the relationship between the executive branch and the legislative branch in terms of the power to negotiate and the power to ratify are maintained.  But, as always, it remains left to the people to ensure that both branches protect the interests of the American people in the long term.

Andrew Langer is President of the Institute for Liberty, as well as Chairman and Founder of the Institute for Regulatory Analysis and Engagement. IFL is a non-profit advocacy organization focused on advancing free-market and limited government principles into public policy at all levels. IRAE is a non-profit academic and activist organization whose mission is to examine regulations and regulatory proposals, assess their economic and societal impacts, and offer expert commentary in order to create better public policies. Andrew has been involved in free-market and limited-government causes for more than 25 years, has testified before Congress nearly two dozen times, spoken to audiences across the United States, and has taught at the collegiate level.

A globally-recognized expert on the impact of regulation on business, Andrew is regularly called on to offer innovative solutions to the challenges of squaring public policy priorities with the impact and efficacy of those policies, as well as their unintended consequences. Prior to becoming President of IFL and founding IRAE, he was the principal regulatory affairs lobbyist for the National Federation of Independent Business, the nation’s largest small business association. As President of the Institute for Liberty, he became recognized as an 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.

Andrew has had an extensive career in media—having appeared on television programs around the world. From 2017 to 2021, he hosted a highly-rated weekly program on WBAL NewsRadio 1090 in Baltimore (as well as serving as their principal fill-in host from 2011 until 2021), and has filled in for both nationally-syndicated and satellite radio programs. He also created and hosted several different podcasts—currently hosting Andrew and Jerry Save The World, with long-time colleague, Jerry Rogers.

He holds a Master’s Degree in Public Administration from Troy University and his degree from William & Mary is in International Relations.

 

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United States Independence and Sovereignty: Cautions From America’s Founders Against Relinquishing Policy Decisions to International Organizations

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Guest Essayist: Chris Burkett
The first meeting of the Assembly, League of Nations, took place on Nov. 15, 1920 at the Salle de la Réformation in Geneva.https://en.wikipedia.org/wiki/League_of_Nations#/media/File:No-nb_bldsa_5c006.jpg


In the previous essay we saw the causes in the Twentieth Century that led to the creation of international organizations such as the League of Nations and the United Nations Organization. In this essay we look at why the American Founders and Framers would counsel a prudent caution against unlimited commitment to and reliance on international organizations for dealing with foreign affairs.

First, the Founders would remind us that, in committing our national resources to promoting the good of the world community through international organizations, we must not lose sight of the fact that our government has a paramount obligation to secure the rights and vital interests of the United States and its citizens. These are what James Madison called “the permanent and aggregate interests of the community” in The Federalist No. 10. This fundamental obligation of our government is expressed in the Declaration of Independence, which claims “that to secure these rights” – the natural rights of life, liberty, and the pursuit of happiness, among others – “governments are instituted among men.” The Preamble to the United States Constitution reaffirms the fundamental purpose for which our government was designed; the American people ordained our Constitution to “secure the Blessings of Liberty to Ourselves and our Posterity.”[1] The American Founders would therefore caution against the view – as held by leaders such as Woodrow Wilson – that America’s highest obligation is to put our immediate interest aside in order to promote the good of the world community, an end that is most effectively achieved through our commitment to international organizations.

Some of the American Founders might have conceded the idea that international organizations could be useful to bring nations to a more common understanding of what justice among nations should be like. However, they would also caution that reliance on international organizations for this purpose could potentially lull us into abandoning the necessary discernment, vigilance, and prudence of determining the motives and measures of other nations – and possibly even the willingness to resort to force when necessary for our defense. A reliance on international organizations could beguile us into believing that all nations now behave rationally and can be trusted to resolve problems by dialogue alone. In other words, reliance on international organizations can give us the comfortable feeling that we have reached “the End of History,” and that modern nations have evolved beyond the motives and means of the Twentieth Century. However, plenty of real-world examples – the Russian invasion of Ukraine, for example – show the naivete of this view. Furthermore, we might be tempted to forget that The United Nations is made up of nations with governments or regimes that are fundamentally hostile to the principles of justice upon which the United States was founded. Alexander Hamilton, writing as Publius in The Federalist No. 6, reminds us that so long as human beings are capable of being “ambitious, vindictive, and rapacious,” and so long as governments are administered by human beings, there will always be nations inclined to go to war for a variety of reasons. As Hamilton writes:

The causes of hostility among nations are innumerable…Of this description are the love of power or the desire of pre-eminence and dominion – the jealousy of power, or the desire of equality and safety. There are others which have a more circumscribed though an equally operative influence within their spheres. Such are the rivalships and competitions of commerce between commercial nations. And there are others, not less numerous than either of the former, which take their origin entirely in private passions; in the attachments, enmities, interests, hopes, and fears of leading individuals in the communities of which they are members. Men of this class … have not scrupled to sacrifice the national tranquillity to personal advantage or personal gratification.

Even commercial republics and democracies – though founded on the principle of popular rather than monarchical rule – are prone to conflict amongst themselves. Alexander Hamilton might say, therefore, that “one must be far gone in utopian speculations” to assume that nations would actually put aside their own interests and govern cooperatively through the United Nations Organization for the good of the whole. Such an assumption would be dangerous and potentially destructive to the “permanent and aggregate interests” of the citizens of the United States.

The third concern the Founders might caution us about is that in committing the United States to the authority of international organizations, we might inadvertently relinquish our domestic sovereignty and our political independence from other nations. We might also lose our liberty as a nation to decide things like what our real obligations are to other nations, and when, how, and why we should act when dealing with foreign policy issues. These considerations are what led the U.S. Senate to vote against membership in the League of Nations in 1919.

This is a lesson President George Washington learned very well in the 1790s. The United States had signed a treaty of mutual defense with France in 1778; however, as the French Revolution turned into terror, the new French regime claimed that the treaty obligated the United States to assist them in their war against monarchical regimes throughout Europe. The treaty threatened to embroil the United States in a European war, effectively stripping the United States of its political independence and the liberty of choosing when, and when not, to go to war. From this example, Washington learned several lessons that should caution us against over-commitment to treaty-based international organizations today. “It is our true policy to steer clear of permanent alliances with any portion of the foreign world,” Washington wrote in his Farewell Address. “Taking care always to keep ourselves by suitable establishments on a respectable defensive posture, we may safely trust to temporary alliances for extraordinary emergencies.” Washington understood that maintaining our political independence and national liberty is vital so that “we may choose peace or war, as our interest, guided by justice, shall counsel.”

It is vital to maintain this political independence so that government may best choose how to fulfill its fundamental Constitutional duty of securing the rights and liberties of its citizens. This leads to a final word of caution regarding American commitment to international organizations. The American people, through their Constitution, have vested control over foreign affairs in Congress and the President. Congress, for example, is vested with the power of declaring war, and the President is vested with the authority to act as Commander in Chief of the country’s military forces. Because the American people have granted these powers, they have entrusted the American government with the responsibility of dealing with foreign policy issues for the security of our rights. According to the U.S. Constitution, however, the American people did not authorize our government to “delegate” that responsibility or those powers to another governing body, including international organizations – especially ones comprised of nations that abhor the very principles of justice for which the United States stands.

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

 

[1] Emphasis added.

 

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International Regimes, Events Leading To Creation of the United Nations, and Involvement of the United States

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Guest Essayist: Chris Burkett
Flags of the member states, UN Headquarters, New York; photo credit: Aotearoahttps://en.wikipedia.org/wiki/Headquarters_of_the_United_Nations#/media/File:UN_Members_Flags2.JPG


The United Nations Organization was officially established in 1945, but its conception arose much earlier. In the early Twentieth Century there was a growing worldwide movement calling for an international organization to work out military and arms limitations agreements among the “civilized” nations of the world – namely, European nations.

In the aftermath of World War I, the League of Nations was finally established with the lofty goal of preserving world peace. In reality, its purpose was to bring together the “democratic” (i.e., “civilized” or “historically advanced”) nations to work together regarding territorial disputes and colonial possessions through negotiation rather than resorting to war. However, the United States Senate rejected membership in the League of Nations on the grounds that it would strip our nation of some degree of its domestic sovereignty and its independence in choosing foreign policy actions. The League limped ineffectively through the 1920s and met with several failures in the 1930s, including failure to prevent the Japanese invasion of Manchuria and the Italian war in Ethiopia. The League of Nations closed down with the outbreak of World War II in 1939 and officially disbanded in 1946.

Franklin Roosevelt, however, revived the idea of an organization of United Nations for the purpose of waging the war against the Axis Powers. President Roosevelt and British Prime Minister Winston Churchill drafted the text of the Declaration by United Nations in 1941, and the following year it was signed by the United States, the United Kingdom, the U.S.S.R, the Republic of China, and twenty-two other nations. The official UN Charter was approved by 51 member states in San Francisco in April 1945, just after Roosevelt’s death.

As with the League of Nations, the object of the United Nations was to allow countries to settle international disputes through discussion rather than war. Near the end of World War II, Roosevelt seemed to believe that such a forum would be useful and necessary to continue peaceful cooperation between the United States and the U.S.S.R. This was reaffirmed under President Harry Truman after World War II as tensions began to develop between the two countries and eventually developed into the Cold War. The Soviet Union, however, used the United Nations for political posturing against Western “capitalist” and “colonial” nations. Still, some Americans believed that the United Nations was a vital tool for allowing dialogue between the Western nations and the Soviet Union as a means to avoid nuclear conflict.

Many Americans were inclined to withdraw from foreign affairs after World War II, but the developing atomic threat from the Soviet Union and specter of sprawling communism inclined the United States back toward active engagement in world affairs through the United Nations. The United States joined the UNO because, unlike under the League of Nations, participation is UN policies is, for all intents and purposes, optional; this means that no nation permanently gives up its domestic sovereignty or its independence in choosing foreign policy actions. On the other hand, this means that the United Nations has no real “teeth” in terms of coercive power; member states comply or not from a kind of international “peer pressure” in order to save face. For example, the UN’s International Court of Justice issues judgments in international disputes in accordance with its understanding of international law, but its decisions are binding only on those nations that recognize its authority and jurisdiction. This is one cause of the general ineffectiveness of the United Nations in preventing conflict in its nearly eighty years of existence. Its lackluster record is also a result of the structure of the UN’s Security Council, which consists of fifteen member states – five permanent members (China, France, Russia, the United Kingdom, and the United States) and ten non-permanent members. Each of the five permanent member states has an absolute veto power and can immediately block any proposed policy (see Essay #20 on the defects of the United Provinces of the Netherlands).

The American Founders would have some words of caution about involving the United States in international organizations such as the League of Nations and the United Nations, which we will discuss in the next essay.

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

 

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The United States Constitution vs. the Regime of Mao Zedong: Opposite Systems of Government

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Guest Essayist: David B. Kopel
Jiang Qing (left) was wife of Mao Zedong, received the Red Guards in Beijing w/Premier Zhou Enlai (center) & Kang Sheng. All holding the Little Red Book (Quotations from Mao).https://en.wikipedia.org/wiki/Cultural_Revolution#/media/File:1967-03_1966%E5%B9%B412%E6%9C%8826%E6%97%A5%E6%B1%9F%E9%9D%92%E5%91%A8%E6%81%A9%E6%9D%A5%E5%BA%B7%E7%94%9F%E6%8E%A5%E8%A7%81%E7%BA%A2%E5%8D%AB%E5%85%B5.jpg


In 1949, after more than 20 years of fighting, the Chinese Communist Party overthrew the Republic of China. The party’s chairman, Mao Zedong, became dictator, and ruled until his death in 1976. Mao’s regime was the most murderous in history. His regime killed over 86 million people—more than Hitler and Stalin combined.

In 1966 Mao initiated “The Great Proletarian Cultural Revolution.” It started as a campaign against the more pragmatic elements of the Chinese Communist Party—such as leaders who a few years before had forced Mao to retreat from an agricultural collectivization program, the Great Leap Forward, that had caused the deadliest famine ever.

Incited by Mao, the Cultural Revolution began with the most privileged students—the children of the top communist party officials—at the top universities. They rioted, rampaged, and looted, first on-campus and then beyond. They started by killing or torturing teachers, and then moved on to the general public. Soon, the rage mobs of ultra-Maoists spread nationwide. Anyone’s home could be invaded and looted, and anyone could be murdered or tortured. The police were forbidden to interfere—or even to fight back when the mobs assaulted the police.

As the Cultural Revolution continued, things got even worse. The Cultural Revolution ended only when Mao died.

The Americans who created the United States Constitution could not know about the tyrants who would arise in the twentieth century. They did know of bad men who had tried to seize absolute power, such as Julius Caesar in the Roman Republic, or King James II of England. Yet the worst of English kings or Roman emperors were mild in comparison to the totalitarian Mao regime.

The American “people did not establish primarily a utility-maximizing constitution, but rather a tyranny-minimizing one.” Rebecca I. Brown, Accountability, Liberty, and the Constitution, 98 Columbia Law Review 531, 570 (1998). This essay describes some of the provisions of the U.S. Constitution that aim to thwart absolutism and totalitarianism. The information about China under Mao is based on David B. Kopel, The Party Commands the Gun: Mao Zedong’s Arms Policies and Mass Killings, Chapter 19.D.3 in Nicholas J. Johnson, David B. Kopel, George A. Mocsary, E. Gregory Wallace & Donald E. Kilmer, Firearms Law and the Second Amendment: Regulation, Rights and Policy (Aspen Publishers, 3d ed. 2022), pp. 1863-1966. Additional citations are available therein.

The Preamble to the Constitution states:

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

The principles and the results of the Mao regime were the opposite. For example, starting in 1972-73, the people were ordered to condemn the “reactionary” ideas of Confucius, such as “the people are the foundation of the state,” and “depositing riches in the people.” As described below, the Mao regime cultivated injustice, domestic violence, the welfare of the ruling class at the expense of the people, and the eradication of liberty. The regime did “provide for the common defense” in the sense that China was not invaded in 1949-76, other than in some border clashes with the Soviet Union.

The U.S. Constitution creates three distinct and independent branches of government:

“All legislative powers herein granted shall be vested in a Congress of the United States.” Art. I, §1.

“The executive power shall be vested in a President of the United States of America.” Art. II, §1.

“The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” Art. III, §1

Under the U.S. Constitution, the three branches of government check and balance each other, as power is set against power. In a communist regime, there are no checks on the party’s will. All political power belongs to the party. Under Mao, “at the top, thirty to forty men made all the major decisions. Their power was personal, fluid, and dependent on their relations with Mao.” Andrew J. Nathan, Foreword, in Li Zhusui, The Private Life of Chairman Mao xi (Tai Hung-Chao trans. 1994).

“The House of Representatives shall be composed of members chosen every second year by the people of the several states.” Senators are to be elected every “six years” and the President every “four years.” Art. I §§2-3; Art. II §1.

There have been no elections since the Chinese Communist Party (CCP) seized power in 1949. Although the party calls the nation it rules the “People’s Republic of China,” the name is a lie. In a “republic” where “the people” rule, the people elect government officials. In the People’s Republic of China, the party rules because the military keeps the party in power. It is reasonable to infer that the CCP knows that if free elections were held, the CCP would lose.

Particular types of “power” are granted to each of the three branches of government. Arts. I §8, II §§2-3, III §2.

The three branches of United States government are granted certain powers by the people. The branches of government may exercise the particular powers expressly granted by the Constitution, as well as some incidental powers that are implied by the express grants. No branch of government, and not even the U.S. government as a whole, has all possible powers.

A communist regime claims unlimited power over everything. Mao acknowledged no legal limit on himself. The practical limit was the difficulty of one man imposing his absolute will on hundreds of millions. The Cultural Revolution was Mao’s method for eliminating everything and everyone that impeded his power.

Congress creates law by passing a “bill,” in compliance with certain procedures. Art. I §7.

The Mao regime was not based on law. As Mao told the very sympathetic American journalist Edgar Snow, “We don’t really know what is meant by law, because we have never paid any attention to it!” Li Cheng-Chung, The Question of Human Rights on China Mainland 12 (1979) (statement to Edgar Snow 1961).

During the 1950s, there were some efforts to create normal legal codes, but these were abandoned once the Great Leap Forward into full communism began in 1958. In contrast to the Hitler regime, which issued many statutes and regulations, the Mao system relied mainly on edicts from the communist leadership, the Party Center. There were many exhortative propaganda campaigns based on slogans.

The party-controlled national newspaper, the People’s Daily, was read to peasants and workers in frequent, mandatory political instruction meetings, which often consumed the rest of the day after work. In effect, the latest article in the People’s Daily was the official source for people to learn how to behave without getting in trouble with the authorities. As different factions within the CCP gained ascendency, the edicts changed frequently. So doing what had been mandatory on Monday could be punished on Friday.

“The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” Art. I §9.

When a court issues a writ of habeas corpus, whoever is holding an individual prisoner must appear in court and prove to the court that the detention of the prisoner is lawful. In communist regimes, there is no recourse for individuals who are arbitrarily imprisoned or sent to slave labor camps.

Neither the federal government nor the states may enact any “ex post facto law.” Art. I §§9-10.

In other words, a criminal law cannot retrospectively punish an act that was lawful at the time it was committed. Just the opposite under Mao and all communist regimes. For example, in the 1956 Hundred Flowers period, people were encouraged to frankly express their views about perceived shortcomings of the CCP. Later, persons who had done so were imprisoned or sent to slave labor camps.

Likewise, during the first several months of the Cultural Revolution, young people from all over China were given free train tickets to see Chairman Mao speak at mass rallies at Tiananmen Square in Beijing. This was an exception to the normal rule that a person could not travel away from his or her village.

A few years later, when factional politics within the CCP had changed, 3.5 million people who had attended one of the 1966 rallies were given other free tickets: one-way transportation to forced labor in the countryside.

Throughout the Mao era, people were often punished for acts that had been lawful at the time, such as expressing non-communist political opinions in the 1930s.

“The President shall, at stated times, receive for his services a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected; and he shall not receive within that period any other emolument from the United States, or any of them.” Art. II §1.

The President’s salary and expense accounts are set by Congress. Mao, in contrast, treated himself to whatever he wanted. In Beijing he lived in the former palace of the emperors, with his own private swimming pool and beach. He had fifty more fortified palaces around the country.

The special Giant Mountain (Jushan) farm supplied fine foods daily to the portly Mao and the others at apex of the CCP food chain. When Mao was away from Beijing, which was most of the time, daily airplanes delivered food from Jushan. The élite CCP leadership in the provinces had similar arrangements for special food, while the masses starved.

Mao enjoyed the company of many beautiful young concubines, procured for him by government employees.

During the Cultural Revolution, everyone had to buy a book of his sayings, Quotations from Chairman Mao Zedong, popularly known as “The Little Red Book.” Mao decided that he was entitled to royalties from all the forced book sales, and he became the first millionaire in Communist China.

As explained by a former vice-president of communist Yugoslavia, all communist governments eventually replace the old wealthy class with a new class of reactionary despots. Property that was nationalized in the name of “the people” becomes the property of the most privileged at the top of the inner party, the “all-powerful exploiters and masters.” Milovan Dijilas, New Class: An Analysis of the Communist System 47 (1957). The same point is made in George Orwell’s book Animal Farm (1945).

“The President, Vice President, and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” Art. II §4.

The constitutional system of elections makes a president removable by the people every four years. In addition, a president may be removed during his term if he is impeached by the House and then convicted by the Senate. In 1974, President Richard Nixon resigned when facing certain impeachment and conviction because of his crimes, including the coverup of an attempted burglary, directed by Nixon’s staff, of the Democratic National Committee office at the Watergate office complex.

But there was no way to remove Mao, even when, as in the Great Leap Forward or the Cultural Revolution, the majority of the people, and even the majority of the CCP elite, thought that he was leading the nation into ruin. Like a bad Roman Emperor, Mao could only be removed by force.

In 1971, Mao began plotting to get rid of defense minister Lin Biao. Lin’s son began organizing a coup against Mao. The plan was to bomb Mao’s train in September 1971, when he would be returning from a trip to southern China to shore up support from the army generals there for Mao’s plan to remove Lin.

But Mao, knowing he was widely hated, often changed his travel plans at the last minute, as a security precaution. This time, the last-minute change saved his life. Lin Biao and his family tried to flee to Mongolia, dying in a plane crash on September 13, 1971.

“The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the Supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office.” Art. III §1.

“The trial of all crimes, except in cases of impeachment, shall be by jury.” Art. III §3.

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense.” Amendment VI.

The U.S. Constitution guarantees the right to jury trial, with fair trial procedures, such as the right to counsel, public proceedings, and the right to cross-examine witnesses. Federal judges hold their positions until they choose to retire, and they cannot be removed for political reasons.

Under Mao, “judicial reform” purged judicial officers and ensured that a puppet judiciary would never err on the side of lenience against dissidents. Courts ceased to exist as independent finders of fact. They became administrative processing units for predetermined sentences. Entirely under the thumb of the CCP, judges merely pronounced the severe sentences that CCP officials had already decided. In cases where the law was not clear, judges were required to follow the Central Party line. According to the CCP official newspaper, People’s Daily, the accused were “presumed to be guilty. . . . Giving the accused the benefit of the doubt is a bourgeois weakness.”

“Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people peaceably to assemble and to petition the government for a redress of grievances.” Amendment I.

No government-established religion, and free exercise of religion

As soon as the communists seized power, they began suppressing some religious organizations and bringing the rest under state control. Religious organizations could exist only as entities subordinate to and directed by the CCP. Soon, the government began to attempt to exterminate religion entirely. While atheism was the official communist belief, the party recognized that religion made people harder to control, as the faithful recognized a higher power than the CCP.

Today’s China is little different. Tibetan Buddhists, Uighur Muslims, and Falun Gong face the worst persecution. Christian denominations are allowed to exist only as state-controlled entities.

Mao despised religion. When Tibet’s Dalai Lama visited Mao in Beijing in 1954, Mao told him, “I understand you well. But of course, religion is poison. It has two great defects: It undermines the race, and secondly it retards the progress of the country. Tibet and Mongolia have both been poisoned by it.” Dalai Lama, My Land and My People 117-18 (2006).

Mao always wanted to be the center of attention. He didn’t like the Chinese national anthem, March of the Volunteers, which had been adopted by the CCP in 1949. It had originally been a song for people of all political persuasions who fought the Japanese invasion of China of 1933-45. During the Cultural Revolution, Mao put the national anthem author in prison, where he died. Although Mao did not formally change the national anthem, for almost every occasion that the national anthem would be played, Mao made the state media (the only media) instead play a song about him, The East Is Red.

“The East Is Red (Dongfang hong):
From China comes Mao Zedong.
He strives for the people’s happiness,
Hurrah, he is the people’s great saviour!
Chairman Mao loves the people,
He is our guide to building a new China.
Hurrah, lead us forward!”

For schoolchildren, a soon-to-be pervasive new song was composed in 1966: “Father is dear, mother is dear, But not as dear as Chairman Mao.”

Under German regime of the National Socialist German Workers Party (“Nazi” for short), people were required to say “Heil Hitler” rather than “Good morning” or “Hello.” The same became true with “Long Live Chairman Mao”—literally, “Chairman Mao ten thousand years” (Mao zhuxi wansui). One man was executed for saying that Chairman Mao would not actually live ten thousand years.

With Mao’s blessing, the military (the “People’s Liberation Army,” PLA) began establishing a new religion for China. Starting in the latter part of 1967, most nonwork time was taken up by mandatory nightly assemblies where people had to discuss their personal behavior in light of Mao Zedong Thought. Then came the 1968-69 campaign of “Three Loyalties” and “Four Boundless Loves” that everyone was supposed to feel for Chairman Mao.

Statues and shrines of Mao were erected everywhere. Busts or pictures of Mao were mandatory home religious items.

Although there was good money to be made, painters often declined the opportunity to paint a Mao icon, since the artist would be scrutinized and punished for the slightest inadvertent sign of insufficient veneration.

Upon arising in the morning, everyone had to face their home Mao shrine and “ask for instructions.” The day ended with “reporting back in the evening.” Mao replaced the “kitchen god” of Chinese folk culture. In other aspects Mao was portrayed as the sun god.

Life was structured around Mao and his words. Before every meal, people had to say grace: “Long live Chairman Mao and the Chinese Communist Party.”

Maoist life encompassed the body as well as the mind. Instead of normal sports, the new exercise routine was “quotation gymnastics”—a set of group exercises in which participants shouted Mao quotes related to the motions. For example, in the third set of exercises, the leader would yell “political power grows out of the barrel of a gun.” The exercisers would make nine thrusting and stabbing motions with imaginary bayonets.

Even more common were “loyalty dances,” in which individuals or groups stretched their arms to show their “boundless hot love” for Mao, sometimes worshipping him as the sun. The PLA enforcers labeled any nonparticipant in the Mao rites as an “active counterrevolutionary.”

People began reporting miracles such as healing of the sick and attributing them to Mao. Communist temples were erected, based on the historic model of ancestral temples. When buying a Mao item in a store, one could not use the common word for buying, mai; instead one would use the polite verb actress Jiang Qing, previously reserved for the purchase of religious items.

Freedom of speech and freedom of the press

When the communists were fighting to overthrow the Republic, they promised freedom of speech for everyone. As soon the Communists seized power, all nongovernment newspapers were closed.

All radios were confiscated, so no one could hear news from the outside world. The confiscation of radio transmitters ensured that people could not communicate with each other at a distance.

All mail was surveilled, and the contents were put in the secret files that the government kept on everyone.

Once people saw what communist rule was like, many people burned their book collections, because possession of a book—even an apolitical book—that was not based on communist ideology might result in the owner being labeled a “counterrevolutionary” and sent to a slave labor camp.

During the Cultural Revolution, the rage mobs pillaged libraries and burned books in huge outdoor bonfires, reminiscent of similar book burnings in Nazi Germany. The Nazi book burners mainly targeted books by Jewish authors, but Mao’s mobs were more ambitious. Any book that was not communist—such as books of ancient poetry—was put to the torch. Many rare historic manuscripts were destroyed.

Mao’s fourth wife, the former actress Jiang Qing, took a special interest in the performing arts. In China, opera had always been entertainment for the masses (as it was in the United States in the nineteenth century) and not solely for a highly educated audience (as it is in the U.S. today). Madame Mao banned all classical works of performing art. The only works that could be performed were post-1949 “model” pieces of crude communist propaganda. That amounted to five operas, two ballets, and one symphony. In the privacy of her palaces, Madame Mao enjoyed a much broader selection of entertainment, including private screenings of Western movies.

During the Cultural Revolution, simply being educated, or an intellectual, or able to speak a foreign language could be cause enough to be killed, tortured, or put into forced labor.

From about March 1968 to April 1969, even the most mundane conversation had to be centered on Mao. If a peasant walked into a store, the clerk was supposed to say “keep a firm hold on grain and cotton production,” and the peasant would reply “strive for even greater bumper crops.” If the customer was a student, the clerk would say “read Chairman Mao’s books,” and the student would answer “heed Chairman Mao’s words.” As one historian observes, “The Cultural Revolution is perhaps the time in the twentieth century when language was most separated from meaning. . . . If you do not mean what you say, because what you say has no meaning beyond the immediate present, then it is impossible to imbue language with any system of values. . . . This led to the overall moral nullity of the Cultural Revolution during its most manic phase.” Rana Mitter, A Bitter Revolution: China’s Struggle with the Modern World 209 (2004).

Or as George Orwell wrote about a fictional totalitarian government very similar to communism, “The intention was to make speech, and especially speech on any subject not ideologically neutral, as nearly as possible independent of consciousness.” George Orwell, Appendix: The Principles of Newspeak, in 1984 (1990) (1949).

Right to petition the government for redress of grievances

Of course there was no such right in Mao’s China, especially during the Cultural Revolution. Sending the government a critical petition would lead to every signer being imprisoned, tortured, sent to slave labor camp, or executed.

At the beginning of the Cultural Revolution, Wang Rongfen, who was studying German at the Foreign Languages Institute, observed the similarities between Mao’s first Cultural Revolution rally for a crowd at Tiananmen Square and Hitler Nuremberg rallies. She sent Chairman Mao a letter: “the Cultural Revolution is not a mass movement. It is one man with a gun manipulating the people.” He sent her to prison for life. In prison, she was manacled full-time, and the manacles bore points to dig into her flesh. She had to roll on the floor to eat. She was released in 1979, three years after Mao’s death, with her spirit unbroken.

Right of Assembly

The textual right of assembly is related to the implied right of association. As the U.S. Supreme Court has recognized, the right of association is implied by the other First Amendment rights, and is necessary to their exercise.

Under the CCP, no associations could exist except those under government control. No assemblies on political matters were allowed, except those demanded by the government.

But when Premier Zhou Enlai died in January 1976, huge, spontaneous, and unauthorized crowds assembled to mourn him. The crowds considered him relatively less totalitarian and oppressive than Mao. Unlike the Tiananmen rallies of the early Cultural Revolution, which originated from the top down, the crowds that gathered to mourn Zhou expressed people power. “The country had not witnessed such an outpouring of popular sentiment since before the communists came to power in 1949.” Li Zhusui, The Private Life of Chairman Mao 611 (Tai Hung-Chao trans. 1994).

While there were demonstrations at over 200 locations throughout the country, the flashpoint was in Beijing’s Tiananmen Square, which saw the largest spontaneous demonstration ever in China. On April 4, Tomb-Sweeping Day (Qing Ming), a traditional day for honoring one’s ancestors, an immense crowd gathered at the Monument to the People’s Martyrs in Tiananmen Square. Erected in 1959, the monument honored Chinese revolutionary martyrs from 1840 onward.

That night, the Tiananmen assembly was attacked by the Capital Militia Command Post (a/k/a the “Cudgel Corps”). According to one report, it later took hundreds of workers to scrub off all the blood.

“A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” Amendment II.

The Second Amendment ensures that the government will never have a monopoly of force. As Americans knew from recent history in Europe and from ancient history, people who were first disarmed were often tyrannized later.

The Chinese Communist Party was aware of similar lessons of history. In a 1938 speech, Mao explained, “Our principle is that the Party commands the gun, and the gun must never be allowed to command the Party. . . . According to the Marxist theory of the state, the army is the chief component of state power. Whoever wants to seize and retain state power must have a strong army.” Problems of War and Strategy (Nov. 6, 1938).

In 1949, one of the new regime’s “first acts” was “to confiscate weapons.” Jung Chang & Jon Halliday, Mao: The Unknown Story 424 (2005). Homes were inspected to “search for forbidden items, from weapons to radios.” Frank Dikötter, The Tragedy of Liberation: A History of the Chinese Revolution 1945-1957, at 45-46 (2013).

By ensuring that all the people could be armed, the Second Amendment aimed to ensure that the militia would be drawn from all people. If the government were allowed to disarm people, then instead of a general militia of the people, there would be a “select militia” of the government’s favorites and toadies. At the Virginia Convention for ratifying the U.S. Constitution, George Mason had warned that a select militia would “have no fellow-feeling for the people.” (June 14, 1788).

As the U.S. Supreme Court noted, in England, the despotic Stuart kings in the seventeenth century had used “select militias loyal to them to suppress political dissidents, in part by disarming their opponents.” District of Columbia v. Heller, 554 U.S. 570, 592 (2008). Further, said the Court, the Second Amendment was enacted in part to assuage fears that the U.S. government “would disarm the people in order to impose rule through a standing army or select militia.” Id. at 588.

Under Mao, a select militia was the instrument for forcing most of the population into de facto slavery. In the 1958-62 Great Leap Forward, the select militia became the instrument that caused the deaths of over forty million people from famine.

In a nation of over 600 million people, the select militia comprised fewer than 2 percent of the population. Unlike in the American system, militia arms were not personally owned but were usually centrally stored and guarded.

According to a political refugee interviewed in Hong Kong in the 1950s, in a farm commune of 15,000 families, there would be about 1,500 militiamen, chosen from the politically correct, who would have rifles. Of these there was “a further selection of 150 super-reliable men whose rifles are always loaded.” Suzanne Labin, The Anthill: The Human Condition in Communist China 104 (Edward Fitzgerald trans., Praeger 1960) (1st pub. in France as La Condition Humaine en Chine Communiste (1959)). “Otherwise ammunition is kept at a central armoury guarded day and night by special police armed with machine-guns. As an extra precaution the personnel of this guard is changed every two months.” Id. A hundred and fifty always-armed males could control 15,000 families.

“They would turn out to be crucial in enforcing discipline, not only during the frenzy to establish communes, but throughout the years of famine that lay ahead.” Frank Dikötter, Mao’s Great Famine: The History of China’s Most Devastating Catastrophe, 1958-1962, at 182 (2010). “[L]ocal militia were a critical ingredient in the CCP’s consolidation of power in the countryside.” Elizabeth J. Perry, Patrolling the Revolution: Worker Militias, Citizenship, and the Modern Chinese State 182 (2007).

“The militia movement and a small corps of trained fighters brought military organization to every commune. All over China farmers were roused from sleep at dawn at the sound of a bugle and filed into the canteen for a quick bowl of watery rice gruel. Whistles were blown to gather the workforce, which moved in military step to the fields. . . . Party activists, local cadres and the militia enforced discipline, sometimes punishing underachievers with beatings.”

Dikötter, Famine, at 50. “Militiamen spearheaded the countless mobilization campaigns that were the hallmark of Mao’s rule. They enforced universal participation by all members of the factory or village, dragged out or designated targets of struggle [persons targeted for persecution], and monitored mass meetings.” Perry, at 191.

A case study of the remote village of Da Fo, located on the North China Plain, details the operation of the select militia. There, guns had been confiscated in 1951 (later than the general confiscation in 1949, perhaps because of the village’s isolation). Over the course of the war against the Japanese invasion and then the final phase of the civil war (1945-49), the high-quality leaders of the Da Fo communist militia had been moved elsewhere, to positions of greater responsibility. The militiamen left behind were the dregs of society. “Villagers remember them as poorly endowed, uneducated, quick-tempered, perfidious hustlers and ruffians who more often than not operated in an arbitrary and brutal political manner in the name of the Communist Party.” Ralph A. Thaxton, Jr., Catastrophe and Contention in Rural China: Mao’s Great Leap Forward: Famine and the Origins of Righteous Resistance in Da Fo Village 329 (2008).

There were no rules against them exploiting or coercing peasants. To the extent that the national government provided subsidies, the militia took them. The Da Fo militia had 30 guns and kept the crop fields under a four-man armed guard day and night, to prevent peasants from obtaining food.

“The militia was a repressive institution, and Mao needed it to press the countless rural dwellers who were resisting disentitlement by the agents of the people’s commune.” Id. “These men were practically the perfect candidates to tear apart civil society and destroy human purpose. . . . [T]hey had a lot in common with the Khmer Rouge in Cambodia, with Ceauşescu’s militias in Transylvania, and with the Janjaweed in the Darfur region of Sudan. In rural China of the late 1950s, as in these other killing field environments, such men were backed by state power.” Id. at 330.

The militia and the communist party cadres carried large sticks they used to beat the peasants. The frontline enforcers were under orders from their superiors to administer frequent beatings, and those who failed to do so were punished. “A vicious circle of repression was created, as ever more relentless beatings were required to get the starving to perform whatever tasks were assigned to them.” Dikötter, Famine, at 299.

Without the select militia, “surely the famine’s death rate would not have been so high.” Thaxton, at 331. Because of the select militia, peasants suffered “socialist colonization, subhuman forms of labor, and starvation.” Id. at 334.

Tibet

The Chinese Communist army invaded eastern Tibet in 1949 and central Tibet in 1951. At first, they ruled relatively mildly, while they worked hard at building a transportation infrastructure for permanent military occupation. But in 1956, the Chinese announced gun registration, which the Tibetans accurately foresaw as a step towards gun confiscation. In 1957, the CCP demanded that Tibetans surrender all their firearms.

Tibet was a universally armed nation. Every man was expected to have a firearm and be proficient with it. The Tibetan Buddhist monasteries had large arsenals. Even the poorest beggar would at least have a large knife.

As the Dalai Lama later recalled, when he heard about the gun confiscation order, “I knew without being told that a Khamba [Eastern Tibetan] would never surrender his rifle — he would use it first.” Roger Hicks & Ngakpa Chogyam, Great Ocean 102 (1984) (authorized biography).

The historically fractious Tibetan tribes united in a national resistance movement, the Chushi Gangdruk. For a while, they drove the Chinese out of most of Tibet, and liberated hundreds of thousands of square miles.

Yet although the Tibetan volunteers were, man-for-man, vastly superior fighters to the Chinese conscripts, the Chinese eventually wore down the Tibetan resistance through sheer force of numbers, just as centuries before barbarians in Europe had overwhelmed the Roman Empire’s legions.

The Tibetan resistance movement did make it possible for 80,000 Tibetans, including the Dalai Lama, to escape to India and Nepal, where they have kept the Tibetan Buddhist religion alive, free of CCP domination, and have continued to inform the world about the CCP’s colonialism and genocide in Tibet.

“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” Amendment III.

Unlike some of the bad monarchs in England and France, Mao did not force families to let soldiers live in their homes. Rather, Mao forced people to live in soldiers’ homes, as prisoners under constant armed guard.

Starting in the Great Leap Forward, the government seized all farmland and forced people into communal labor. In many communes, families had to leave their homes, live in sex-segregated barracks, and eat in mess halls. Husbands and wives were allowed one short conjugal visit per week. This was consistent with Marxism, which boldly demanded “Abolition of the family!” Karl Marx, Communist Manifesto 24 (Samuel Moore & Friedrich Engels trans. 1888) (1848).

“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.” Amendment IV.

Starting in 1955-56, the CCP ordered that people allow home inspections at any time. This was part of a household registration system that also required people to reside in the registered place permanently, unless they were given government permission to move. People could travel only when issued a permit, had to register when staying somewhere else overnight, had to register their own house guests, and had to report on the content of conversations with guests.

All postal mail could be secretly opened by the government, its contents recorded in the government’s secret files on every person, to accumulate material for potential later use against the writer.

During the Cultural Revolution, Mao’s mobs, the “Red Guards,” searched house-to-house for concealed arms, books, religious items, gold coins, and evidence of disloyalty. If something was found, the victims were tortured. “Every night there were terrifying sounds of loud knocks on the door, objects breaking, students shouting and children crying. But most ordinary people had no idea when the Red Guards would appear, and what harmless possessions might be seen as suspicious. They lived in fear.” Frank Dikötter, The Cultural Revolution: A People’s History, 1962-1976, at 86-90 (2016). Many people pre-emptively destroyed their books and artwork, lest the Red Guards discover them. Ordinary thieves posed as Red Guards to get in on the looting.

“[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation.” Amendment V.

The prohibition of “double jeopardy” means that if a person is tried for alleged crime and acquitted, the government cannot prosecute the same person a second time for the same offense. This was irrelevant under Mao, since persons who were accused were always convicted the first time.

While the Fifth Amendment forbids compelled self-incrimination, self-incrimination was mandatory under Mao. If an arrested person did not confess to whatever crimes she was accused of, she would be tortured until she did.

The Takings Clause means that government must pay compensation when it takes a person’s property. But under Mao, property could be taken at any time. Some people had no property at all. For example, starting with the Great Leap Forward in 1958, the peasants forced to live in barracks on the collective farms were not allowed to own even a spoon.

The communists had won the revolution in part because they had promised to give land to the peasants. The communists did so in the years immediately after the revolution. Then starting in 1958, the land was taken by the government. The peasants were turned into serfs—forbidden to leave the land and forced to labor under armed guard to produce crops, most of which the government would take without compensation.

In the Cultural Revolution, Mao’s rage mobs roamed the streets, attacking women for bourgeoise behavior such as wearing dresses or having long hair. Poor street peddlers, barbers, tailors, and anyone else participating in the non-state economy were attacked and destroyed. Many of them were ruined and became destitute.

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Amendment VIII.

The system of bail allows a person who has been arrested for crime to be released from jail pending trial, if the person posts a bond to ensure that he will appear in court for trial. Under communism, once a person is arrested, the person may simply “disappear,” never to be seen in public again.

While the Eighth Amendment prohibits torture, torture was a common tool of the Mao regime. Soon after the communists seized power in 1949, their “land reform” program encouraged peasants to torture and then kill small farmers and landlords. If Mao decided that a high-ranking official was now an enemy, he would have the official tortured in front of an assembly of the communist elite.

In the Cultural Revolution, Mao’s rage mobs roamed the streets with leather belts with brass buckles, which they used to beat their targets senseless, often inflicting severe injury. Sometimes the victims were forced to lick their blood up from the street. Any pedestrian could be accosted by Red Guards, ordered to recite quotations from Chairman Mao, and then tortured on the spot for not having memorized enough of them.

The Cultural Revolution also brought a savage campaign of genocide and torture of the minority Mongol population, living in north-central China. Ethnic minorities in other border regions received similar treatment.

A new round of purges began in 1969 and ran through 1971, based on a supposed “May Sixteenth” conspiracy from 1966. This was the date that a circular had announced the creation of the Central Cultural Revolution Group, which would publicly unleash the Cultural Revolution several days later. Supposedly, May 16 was also the debut of a secret plot against Premier Zhou Enlai. Although Zhou was himself a member of the Central Cultural Revolution Group, there were others in the group, including Mao’s wife, who hated him and plotted against him. Whatever the intrigue at the top, the persecution of “May Sixteenth elements” did not target Madame Mao but instead large numbers of people who had no plausible connection to any conspiracy; they were tortured into confessing to having joined a conspiracy that they had never heard of before they were arrested.

Meanwhile, in rural areas, where the Cultural Revolution was less intense, the local militias, aware of all the killing and torture going on in the towns and cities, decided to demonstrate their loyalty by going on their own spontaneous murder and torture sprees.

The victims were not participants in Cultural Revolution politics. Rather, the targets were the “Four Types”—who since 1949 had always been easy targets for attack. These included former landlords, anyone who had owned a small business before the revolution, anyone who was claimed to be a noncommunist, and any “bad element” who had supposedly deviated from the CCP orthodoxy of the moment.

Victims were typically denounced in public show trials that everyone in the village had to attend. Some victims were executed in plain sight to spread terror. Execution methods involved firearms, beating and torturing people to death (always common under Mao), or imaginative procedures, such as marching victims off a cliff.

“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” Amendment IX.

“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.” Amendment X.

The U.S. constitutional system is based on the sovereignty of the people. The people delegate some powers to the federal government, via the Constitution. The Ninth Amendment makes it clear that the Bill of Rights is not an exclusive list of the people’s retained rights. The Tenth Amendment affirms that the people and their state governments retain all powers that were not delegated to the federal government.

Under communism, the people have no “retained” rights or “reserved” powers. The omnipotent sovereign is the communist party. Under Maoism, the only purpose of human existence was to serve Mao.

Dave Kopel is Research Director of the Independence Institute; an Adjunct Scholar with the Cato Institute, in Washington; and adjunct Professor of Constitutional Law at the University of Denver’s  Sturm College of Law. His website is www.davekopel.org. He is a regular panelist on Colorado Public Television’s “Colorado Inside Out” and a columnist for the Reason magazine on the Volokh Conspiracy law blog.

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Barriers Against Encroachments on Individual Natural Rights of Life, Liberty and Property: America’s Founders and a Well-constructed Constitution

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Guest Essayist: Chris Burkett
Tiananmen Square, Sept. 15, 1966, the occasion of Chairman Mao Zedong’s third of eight mass rallies with Red Guards in 1966; China Pictorialhttps://en.wikipedia.org/wiki/Cultural_Revolution#/media/File:1966-11_1966%E5%B9%B49%E6%9C%8815%E6%97%A5%E5%A4%A9%E5%AE%89%E9%97%A8%E6%B8%B8%E8%A1%8C-%E5%85%AB%E5%B1%8A%E5%8D%81%E4%B8%80%E4%B8%AD.jpg


Mao Zedong’s bloody “The Cultural Revolution” led to the violation of life, liberty and property for millions of people. Though Mao claimed this was a revolution to promote communism and purge China of capitalism, it was also a manifestation of the kind of tyrannical faction that James Madison and other Framers of the United States Constitution warned about.

Mao’s Revolution was grounded upon a rejection of the tradition that human beings have natural rights as individuals, substituting instead the idea that people are, can, and should be simply “programmed” to behave as government desires with the right kinds of physical and psychological measures. According to Maoist ideology, human beings have absolutely no natural rights – including the right to life and property – that must be respected.

The American Founders, including Federalists and Anti-federalists, foresaw the kind of unspeakable horrors that could be unleashed when the idea of individual natural rights is rejected and abused by government or powerful leaders. As Anti-federalist Brutus wrote, Americans deeply believed that “all men are by nature free. No one man, therefore, or any class of men, have a right, by the law of nature, or of God, to assume or exercise authority over their fellows…This principle, which seems so evidently founded in the reason and nature of things, is confirmed by universal experience.”

Brutus understood very well that human beings, when entrusted with power, are prone to abuse that authority for their own purposes. “Those who have governed, have been found in all ages ever active to enlarge their powers and abridge the public liberty,” Brutus wrote. “This has induced the people in all countries, where any sense of freedom remained, to fix barriers against the encroachments of their rulers.” Brutus points out that the state constitutions at the time provided many of these “barriers” in the form of “due process of law” as protection for the individual natural rights of citizens.

For the security of life, in criminal prosecutions, the bills of rights of most of the states have declared, that no man shall be held to answer for a crime until he is made fully acquainted with the charge brought against him; he shall not be compelled to accuse, or furnish evidence against himself—the witnesses against him shall be brought face to face, and he shall be fully heard by himself or counsel.

Constitutional barriers also protected the individual natural right to private property. As Brutus writes, “For the purpose of securing the property of the citizens, it is declared by all the states, “that in all controversies at law, respecting property, the ancient mode of trial by jury is one of the best securities of the rights of the people, and ought to remain sacred and inviolable.”[1]

Federalist James Madison also believed that for government to be just it must protect the individual right to private property. In The Federalist No. 10, Madison wrote about how the different kinds and degrees of property people acquire, hold, and use are a reflection of human nature. “The diversity in the faculties of men, from which the rights of property originate,” Madison wrote, makes it difficult, if not impossible, for government to impose by force a universal uniformity of opinion (as Mao had attempted to do in the Cultural Revolution). “The protection of these faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results.”[2]

For James Madison, “property” meant more than just ownership of material things and goods, such as “a man’s land, or merchandize, or money.” In a larger sense, Madison wrote:

[A] man has a property in his opinions and the free communication of them. He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them. He has a property very dear to him in the safety and liberty of his person. He has an equal property in the free use of his faculties and free choice of the objects on which to employ them. In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights.[3]

Just as the physical property one owns is acquired through physical labor, the opinions we hold – especially our religious opinions – are the products of the labor of our minds. And Madison, like Thomas Jefferson, believed that the human mind is made free by nature – or, as Jefferson put it, “Almighty God hath created the mind free.”[4] To violate the rights of property in either sense – as Maoist ideologues attempted to do during the Cultural Revolution – is to deny the natural freedom of the human mind.

Anti-federalists and Federalists understood that one of the best means for preventing abuses of natural rights is to find a way to prevent all political power from being held in the same hands. As Brutus wrote, “When great and extraordinary powers are vested in any man, or body of men, which in their exercise, may operate to the oppression of the people, it is of high importance that powerful checks should be formed to prevent the abuse of it.”[5] Federalist James Madison agreed: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”[6] As we have discussed in earlier essays, Madison and the Federalists believed that the best way to keep power diffused was to separate powers through a combination of modes of election, qualifications for office, and different terms in office for the various branches of government. All of these constitutional barriers – from mandatory due process of law to the manner in which powers are separated – help to provide checks against the kinds of actions taken by Mao and his Revolutionaries with regard to violations of the individual natural rights of life, liberty, property, and religious liberty, and make the kinds of bloody “purges” of the Cultural Revolution less likely under a well-constructed Constitution.

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

 

[1] Brutus II.

[2] The Federalist No. 10.

[3] James Madison, “Property,” 29 March 1792.

[4] Thomas Jefferson, “A Bill for Establishing Religious Freedom” in Virginia, written 1779, enacted 1786.

[5] Brutus XVI.

[6] The Federalist No. 47.

 

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Enemies of Freedom: Mao Zedong and the 1966 Cultural Revolution in China

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Guest Essayist: Chris Burkett
Mao Zedong and Lin Biao surrounded by rallying Red Guards in Beijing, 1966, China Pictorialhttps://en.wikipedia.org/wiki/Cultural_Revolution#/media/File:1966-11_1966%E5%B9%B4%E6%AF%9B%E6%B3%BD%E4%B8%9C%E6%9E%97%E5%BD%AA%E4%B8%8E%E7%BA%A2%E5%8D%AB%E5%85%B5.jpg


In 1966, Mao Zedong launched what was known as “The Cultural Revolution.” This bloody period in China’s history lasted for more than a decade. Mao’s objective in calling for the revolution was to purge the People’s Republic of China of the bourgeois and capitalist elements that had allegedly infiltrated the government and produced a series of failures and setbacks in the communist nation’s development. In reality, it was an attempt by Mao, who was Chairman of the Communist Party of China, to reclaim social and political control in the country.

Mao created several radical groups to wage war against conservative and traditional groups within China. Groups of “Red Guards” went on the offensive to destroy precious artifacts in an effort to eliminate all memory of traditional Chinese culture. This also included attempts to eliminate all remaining traditional religious belief in the country, as it had been based, to a certain extent, on the idea that religious opinions were private and personal. To accomplish this, many historical and religious sites were destroyed by Mao’s revolutionaries.

Mao also called for the taking of all remaining private property from his “cultural” (i.e., political) enemies. In order to “cleanse the class ranks,” many people were sent to “the countryside” to work in “reeducation camps” (that is, concentration camps far removed from the eyes of people in the larger cities, at which hundreds of thousands – possibly millions – of people were tortured or killed). The Cultural Revolution finally ended with Mao’s death in 1976.

The terrible abuses of natural rights during Mao’s “Cultural Revolution” remind us of the importance of the United States Constitution, which explicitly guarantees the due process of law before anyone can be deprived of life, liberty, or property. The Constitution also enshrines the fundamental idea of individual freedom, perhaps most importantly in the First Amendment’s protection of religious liberty. And the separation of powers, and checks and balances written into the Constitution, make it less likely that any single so-called “Great Leader,” such as Mao, can carry out such brutal schemes of oppression and widespread murder. In the next essay, we will look at the wisdom of the Federalists and Anti-federalists affirming the importance of these ideas.

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

 

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The United States Constitution as a Bulwark Against Tyranny

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Guest Essayist: Jeanne McKinney


Reeling in the remarkable victory of breaking free of Britain’s tyranny, America’s leaders had a duty to preserve their hard-won independence. The American Revolution had set about in motion the notion that the “People” should have a voice in their own government, in their own destinies. The idea of individual rights and protection of those rights by a system of laws and guarantees was a breaking, out-of-the-box plan. Never-in-history had a government like that been constructed. The delegates (many who were Founding Fathers) attending the Philadelphia Constitutional Convention of 1787 set about to do that. They wrote the Constitution.

James Madison wrote the document, yet there was input from other Founding Fathers. This patriotic group of leaders included Thomas Jefferson and John Adams. Jefferson had authored the Declaration of Independence, and John Adams put his pen to the Defense of the Constitution of the Government of the United States of America. Patrick Henry provided input supporting the inclusion of the Bill of Rights.

Did any of these delegates want any chance of their America to be overrun by tyranny again? Absolutely not. They were familiar with tyrannical regimes of the past and surely noted their failures. They also had to envision any oppressive absolute power ideologies that the future may usher in.

“Rebellion to tyranny is obedience to God” wrote Thomas Jefferson.

“Tyranny is a constant in human history,” says Walter R. Newell in his book “Tyrants.”

Newell analyzed three forms of it, writes author Peter Leithart.  https://www.patheos.com/blogs/leithart/2016/03/three-forms-of-tyranny/

“Garden Variety” tyrant (most common in ancient history). Men who claim ownership of an entire country to use for “their own pleasure and profit and to advance their own clan and cronies.”

“Reforming tyrant.” These individuals are “unconstrained by law or democracy.” Honor, wealth, and power are their obsession. They act to improve their society by the unobstructed exercise of their unlimited authority. Think Alexander the Great, Julius Caesar, Nebuchadnezzar, Louis XIV, Napoleon etc… In a position of absolute power, they used violence for specific aims.

“Millenarian tyrant” is Newell’s third class of tyrants, pens Leithart. Here lies modern-day globalists that are fueled to impose an oppressive “millennial blueprint” on the masses in which the individual “will be submerged in the collective and all privilege and alienation will be forever eradicated.” Think Robespierre, Stalin, Hitler, Mao Tse-Tung, Pol Pot, Gaddafi, and modern-day jihadist terrorists.

These types of tyrants are masters of the veil of illusion. They are experts in the craft of propaganda. They appear “to raise up the downtrodden, to end exploitation, to create a society in which men would no longer use their fellow men as tools for their own enrichment or domination,” says Warren H. Carroll in his book, “70 years of the Communist Revolution.”

Just look at fall of democracy in Afghanistan in August 2021. The country now lies under a brutal tyrannical regime. The Taliban promises to eradicate any former law or policy that does not conform to their interpretations of strict religious Sharia law. Their interpretations of Islam are their own, using a religious shroud to justify evil beheadings, the stoning of women, and random executions in front of families. This band of violent insurgents who overran the seat of government in Kabul, claim their death-marked regime is ‘what the people want.’ Now, the Afghan people have no voice. All the news stations in Afghanistan (as of the date of this writing), are under Taliban control for propaganda purposes.

For twenty years, American troops stopped the terrorists’ plans, helping to protect Afghanistan’s form of democracy. Afghan people experienced pockets of freedom like never before. They had a chance to vote, for girls to attend schools, and for their voices to be heard. Now, Afghan citizens live in fear and many in hiding, left behind while the world watched, aghast, as the Taliban executed a lightning -quick campaign towards power. Yes, an unprotected country can be toppled in merely weeks.

Tyrants blind people to the truth of who they are, which is an elite ruling class who holds all the cards. They demand you suppress your own individual interests and limit achievement for the “good of the nation.” “They” know what’s best for you even when it is not.

Hitler’s fascist Germany did not ‘know best.’

Although Hitler had not revealed the full extent of his totalitarian aims before he came to power, as Führer (“Leader”) of the Third Reich, he attempted not only to control all political power but also to dominate many institutions and organizations that were previously independent of the state, such as courts, churches, universities, social clubs, veterans’ groups, sports associations, and youth groups. Even the German family came under assault, as members of the Hitler Youth were told that it was their patriotic duty to inform on anti-Nazi parents. (Britannica)

His government was marked by a radical authoritarian dictatorship, that imposed stringent government controls on the economy and oppressed opposition. Fascists reject free and competitive elections. Instead, Hitler sported an aggressive nationalism to his Nationalist Socialist German Workers’ Party (Nazi) party, poisoned by extreme racism. Yet, Hitler brainwashed followers justifying his evil violence with lies of being a superior race. He created a police state to handle those who opposed; his own countrymen were killed and tortured.

Hitler’s regime conducted the most prolific and inhuman genocide of the Jewish people in history. His raging Anti-Semitism spurred the Holocaust and will forever haunt generations of the earth. Hitler forced his way to absolute power, to become a murderous madman marked by the notorious sign of the swastika. In the end, it all came tumbling down and he fell from Aryan god and fascist king to a shriveling coward hiding in his underground bunker who took his own life.

America’s Founding Fathers emplaced critical safeguards in the governing Constitutional documents preventing any tyrant from using the law of the land to gain absolute power.

The American quest for stability, security, and liberty.

“If you want something you have never had, you must be willing to do something you have never done.” – Thomas Jefferson

Tyranny will never provide stability, because oppressed masses will eventually rebel. As the Founders created the Constitutional structure for a newly formed republic called America, they set about to assure a balance of power in the governance. This helped facilitate a secure and stable system of operating within a framework of laws that ensured individual liberties and rights. The United States Constitution was ratified by 11 of the original states in 1778 and by all 13 original states by 1790. The Bill of Rights was ratified in 1791.

The first three articles establish the three branches of government, Executive, Legislative, and Judicial. Articles four through seven of the Constitution describe the relationship of the states to the Federal Government, establish the Constitution as the supreme law of the land, and define the amendment and ratification processes. (National Archives)

https://www.archives.gov/founding-docs/constitution/what-does-it-say

In this 3-part governmental environment – there could be no Hitler without an overthrow of the republic. It could come in the form of a swift coup or the slow, but steady integration of oppressive ideologies. Our Founders knew well the feel of imperialism, yet had not experienced socialism, communism, fascism, or radical Sharia law. They were inspired, forward-thinking men in revolutionary times, out to eradicate tyranny in any form to occupy their land of inheritance.

Modern-day socialists and communists set out to break and degrade the laws of the republic nation, one by one. Those who decry the Constitution as invalid or outdated are traitors and enemies of America. The concept of freedom will never be outdated.

The Constitution: A steely defense against tyranny.

Anyone with a mind to implant tyranny over the American people will hit a military wall trying to do away with or overthrow the Constitution…American men and women who wear the uniform and go to war swear an oath to protect and defend the revered United States document.

The Oath of Enlistment (for enlisted):

“I, _____, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.”

The President of the United States swears an oath to “preserve, protect, and defend” the Constitution, which is the solid foundation our government stands upon. Members of Congress are similarly bound to uphold the Constitution. Yet, we see it happening every day, as “factions” threaten the early delegates’ great plan for a free self-governing people.

James Madison, Alexander Hamilton, and John Jay wrote the Federalist papers, a collection of 85 articles and essays to promote the ratification of the United States Constitution. In #10 of the Federalist papers, Madison discussed the “factions” that pose a threat to a republic.

Factions, Madison explained, are groups “united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” Factions out for political power put their own interests first, not the common good.

Then Madison acknowledged that “the public good is often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.”

Failed regimes remind and warn. 

According to Hitler, democracy undermined the natural selection of ruling elites and was “nothing other than the systematic cultivation of human failure.” Joseph Goebbels, Hitler’s minister of propaganda, maintained that the people never rule themselves and claimed that every history-making epoch had been created by aristocrats. (Britannica)

America denounces Goebbels’ obvious lie with 232 years of an enduring constitutional republic creating a nation others look up to and many try to copy.

An enduring question for Americans is this: How do we protect ourselves from tyranny?

These wayward political pundits ignore the failures of the Fascists, Communists, Marxists, or radical Islamists that have tried to conquer the world. It is vital to fix Congress to restore the Founders’ ideal of a republican government. We must stop the crushing of individual exceptionalism and the degradation of guaranteed rights and protections. There must be a halt to anti-constitutional propaganda, and violators of constitutional law must be prosecuted.

What all tyrants of history fail to recognize is the power of the human will. Individual will is given by God to all mankind to make his own choices. Our wills do not savor being suppressed by others who sit on thrones, the Oval Office, or Congress who think they ‘know best’ for everyone and peddle ‘sameness.’ For that alone, the writers of the Constitution have adhered to the designs of God. They gave the American people the opportunities to grow the individual, to expand great potential, to gain knowledge, and to magnify the human experience.

Freedom can only exist in a framework of laws that supports it. The Constitution, if followed, will continue to prove itself on the world stage to survive the attacks of tyranny, which continue to threaten.

Jeanne McKinney is an award-winning writer whose focus and passion is our United States active-duty military members and military news. Her Patriot Profiles offer an inside look at the amazing active-duty men and women in all Armed Services, including U.S. Marine Corps, Navy, Army, Air Force, Coast Guard, and National Guard. Reporting includes first-hand accounts of combat missions in Iraq and Afghanistan, the fight against violent terror groups, global defense, tactical training and readiness, humanitarian and disaster relief assistance, next-generation defense technology, family survival at home, U.S. port and border protection and illegal immigration, women in combat, honoring the Fallen, Wounded Warriors, Military Working Dogs, Crisis Response, and much more. Starting in 2012, McKinney has won multiple San Diego Press Club “Excellence in Journalism Awards,” including eight “First Place” honors, as well as multiple second and third place recognition for her Patriot Profiles published printed articles. Including awards for Patriot Profiles military films. During the year 2020, McKinney has written and published dozens of investigative articles in her ongoing fight to preserve America the Republic, the Constitution, and its laws. One such story was selected for use in a legal brief in the national fight for 2020 election integrity.

 

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U.S. Constitution vs. the Evil of Nazi-style Regimes: Design of America’s Founding Political System for Maintaining Independence and Self-governance

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Guest Essayist: Winfield H. Rose
World War II Map, Green/Allies/Allied Countries; Blue/Axis Powers; Gray/Neutral Countries 1939-1945. Photo by Yonghokim, Joaopaishttps://en.wikipedia.org/wiki/Allies_of_World_War_II#/media/File:Map_of_participants_in_World_War_II.png


Thanks to the grace of God, the United States is descended from the English political tradition. The last verse of Robert Frost’s poem “The Road Not Taken” comes to mind: “I shall be telling this with a sigh Somewhere ages and ages hence: Two roads diverged in a wood, and I—I took the one less traveled by, And that has made all the difference.” This applies to countries as well as people, and here the two roads are absolute monarchy and constitutional monarchy.

England chose the less-traveled road of constitutional monarchy and “that has made all the difference.” This goes back to the Magna Carta of 1215, the accession of King James I in 1603, the Mayflower Compact of 1620, the English Civil War of 1640-1649, the regicide of King Charles I in 1649, the Glorious Revolution of 1688 and the English Bill of Rights of 1689. In the midst of these very important events was the founding of Virginia, the first permanent English colony in the New World, in 1607, and then Plymouth colony in 1620, eventually to be followed by the other eleven.

These events have in common these principles: (1) the power of the king or government is not absolute but subject to law; and (2) the legislature is the law-making body of the realm and holds the power of the purse.

Fearing for his life, King James II fled to France in December, 1685 whereupon Parliament declared an abdication, that is, the throne was vacant. Parliament then functioned as a constitutional convention by drafting and adopting the English Bill of Rights of 1689 and inviting Mary, the elder daughter of James II, and her Dutch husband William of Orange to assume the throne as joint monarchs subject to the conditions stipulated in the Bill of Rights. Mary and William agreed and did so. This is called the Glorious Revolution, and indeed it was glorious because at this time England became a constitutional rather than an absolute monarchy.

Accordingly, the English government henceforth was divided into three interlocking, interdependent parts: the Crown, the Lords Temporal and Spiritual, and the people represented by the House of Commons.

Charles de Secondat, Baron de Montesquieu was a wealthy, intelligent and energetic Frenchman born near Bordeaux on January 18, 1689 during the reign of Louis XIV and at the very time the Glorious Revolution was unfolding in England. In 1728 he left France to travel abroad. After visiting Italy, Germany, Austria, and other countries, he went to England, where he lived for two years and was greatly impressed with the English political system.

After his return to France in 1731 he began work on his masterpiece, The Spirit of the Laws, one of the most important and best-known works ever written on political philosophy, published in 1748. This book is a comparative study of three types of government: republic, monarchy and despotism, and it is clear he detested despotism.

Montesquieu’s Book XI is titled “Of the Laws Which Establish Political Liberty With Regard to the Constitution” and reads, in part, as follows: “ . . . constant experience shows us that every man invested with power is apt to abuse it,  . . . To prevent this abuse, it is necessary … that power should be a check to power. . . . When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

“Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be subject to arbitrary control; for the judge would be then the legislator. Were it joined with the executive power, the judge might behave with violence and oppression.

“There would be an end to everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.” (emphasis added)

It should be clear, then, that, while John Locke was the intellectual father of the Declaration of Independence, Montesquieu was the intellectual father of the United States Constitution. The twin principles of separation of powers and checks and balances permeate it from beginning to end. This includes not only the national government itself but all the state governments and the principle of federalism which defines the relationships between them.

In the 47th Federalist Madison says, “The oracle who is always consulted and cited on this subject is the celebrated Montesquieu. If he be not the author of this invaluable precept in the science of politics, he has the merit at least of displaying and recommending it most effectually to the attention of mankind.”

Madison fully develops the idea in his 51st Federalist: “ . . . the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.  . . . This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public.” (emphasis added)

The economic situations in the United States and Germany in the early 1930s were uncomfortably similar while the political situations were, though similar in certain respects, different in others. Both countries were suffering from an economic depression with high unemployment and high inflation, plus the hopelessness and despair that went with them. Germany was alienated not only from its administration in office but also from its entire political system, and there was much unrest.

The American people were substantially alienated from their administration in office but not from their entire political system. It was, however, on trial. There was no guarantee it would survive. No one knows what might have happened if Franklin Roosevelt had not been elected in 1932 but he was elected and, as Washington was not Napoleon,  Roosevelt was not Hitler.

There were several important differences between the United States and Germany at this time. One was that the American political system based on Montesquieu’s principles of separation of powers and checks and balances had been in operation for 140 years and had solidified into a strong tradition. Those holding positions in the three branches were dedicated to those principles and  that tradition and were not egomaniacs interested in one-man rule.

We remained on the road less traveled, thank God, but Germany did not. Their tradition was authoritarian, one-man rule and they reverted to it—and made it infinitely worse and more evil—on January 30, 1933, when Hitler took power. Ideas and traditions matter.

Winfield H. Rose, Ph.D., is Distinguished Professor of Political Science Emeritus at Murray State University.

 

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Hitler’s Evil Path to Tyranny

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Guest Essayist: Winfield H. Rose
Europe at the height of German military expansion in 1942, photo: Morgan Hauserhttps://en.wikipedia.org/wiki/German-occupied_Europe#/media/File:Europe_under_Nazi_domination.png


How the catastrophe of Nazism occurred in Germany remains a question for the ages. It had no single cause, but resulted from a unique conjunction of traditions, events and personalities.

Christianity had existed in Germany for centuries. The Germans had a great civilization based on literature, philosophy, architecture, music and science. But they also had a strong military/warrior tradition going back at least to the Battle of the Teutoburg Forest in 9 A.D. This slaughter of Roman troops was one of the worst military defeats Rome ever suffered and established the Germans as fierce fighters.

The Thirty Years’ War (1618-1648) following the Protestant Reformation caused great loss of life and virtually destroyed Germany. Two centuries were needed for Germany to recover. A great tragedy of this period is the discrediting of European Christianity. Protestants and Catholics did not come to love and respect one another as brothers and sisters in Christ.  After killing each other by the thousands, they decided Christianity and its values were no longer relevant and cast them aside. This was facilitated during the next two centuries by the emigration of many German Christians to the United States, thereby making the remaining population less religious and more secular.

As bad as the religious wars of the 17th century were, England and France retained their national identities whereas Germany did not. For two centuries the national identity of Germany was, at best, unclear and, at worst, lost – except in the minds of two men, one a politician and one a musician. Richard Wagner the musician was born in 1813 and Otto von Bismarck the politician was born in 1815 while the Congress of Vienna was meeting. Both desired German restoration and worked to achieve it.

Three short, successful wars under “iron” Chancellor Bismarck in the 1860s and 1870s enabled him to unite Germany politically and found the autocratic Second Reich in 1871 under Kaiser Wilhelm I. After Bismarck’s dismissal and death, it became even more autocratic under Kaiser Wilhelm II.

Thus, in contrast to France, Britain and the United States, there was no democratic tradition in Germany. German culture included an extreme deference to authority and to authority figures. When Adolph Hitler (1889-1945) established his own one-man rule, Germans were used to it.

The 19th century saw the wars of the charismatic conqueror Napoleon Bonaparte (1769-1821), the philosophers Georg Wilhelm Friedrich Hegel (1770-1831), Karl Marx (1818-1883) and Friedrich Nietzsche (1844-1900), and the composer Richard Wagner who died in 1883. All these except Marx, who was so radical he was expelled from the country, contributed to the strange mix that was to become National Socialism.

Hegel used the term “alienation” to describe a profound disconnect between what we see as real and what we desire as ideal and wish to be real. The greater the disconnect (dissonance, difference), the greater the alienation. It includes unhappiness, sorrow, grief, depression, anger, rage and, very importantly, a compulsion to seek remediation.

To remedy alienation, Hegel exalted the state over the individual and glorified Germanic civilization as the culmination of history, thereby advancing the secularization of society and encouraging and solidifying the natural human ethnocentrism and racism of the German people.

One could say Wagner took up where Hegel left off. Wagner’s musical dramas are set in a mythical, distant and glorious past which has been lost and begs to be restored. What Bismarck did politically, Wagner did culturally – and that was to create a German state (Reich) for Germans.

Nietzsche’s part in this tragic progression was the ideas of “transvaluation of values,” “beyond good and evil,” “God is dead” and “Superman.” The first three terms jointly mean the rejection of Judeo-Christian and Greco-Roman (Western) civilization and values, the rejection of divine and natural law and the redefinition of good and evil (evil is good and good is evil).

Nietzsche differed from Hegel in that, while Hegel thought German civilization was the best possible and the best ever seen, Nietzsche regarded it with scorn and contempt, calling it a “supreme abortion (miscarriage)” which needed to be replaced with a master race of Ubermenschen or “Supermen” who would be as superior to present humans as present humans were to apes. Thus, Nietzsche removed the moral and ethical restraints of civilization and thereby enabled the German people to descend into barbarism in pursuit of mythical glory.

It cannot be determined exactly how much of this history and philosophy Hitler actually knew and understood, but it is safe to say he grasped the basics. Nietzsche had a younger sister who set up a small museum in his memory. There is a picture of Hitler visiting that museum and admiring a bust of Nietzsche (Dagobert D. Runes, Pictorial History of Philosophy, New York: Philosophical Library, 1959, p. 301). It is well known that Wagner was Hitler’s favorite composer and that he frequently played Wagner’s music on a phonograph. Wagner was intensely anti-Semitic and did not accept Jews as true Germans; neither did Hitler, as is well known.  Add to this the popularity of eugenics and social Darwinism and you have a very toxic civic culture.

World War I and its aftermath put the final pieces in place for the rise of Hitler. Hitler himself served in the war and was wounded. He was obsessed with Germany’s defeat and restoration.

The abdication of the Kaiser required by President Woodrow Wilson created a severe leadership vacuum in Germany. The Allied wartime blockade of Germany’s North Sea ports was continued to June 1919, thus disrupting spring planting and worsening Germany’s already dire famine.

The Treaty of Versailles was a disaster. Germany was not allowed to participate and the war guilt and reparations clauses were especially onerous, thereby giving Hitler rallying cries of which he later made extensive use. At its signing, French Marshal Ferdinand Foch said, “This is not peace. It is an armistice for 20 years.” He missed it by three months.  The Weimar Republic which followed and its constitution were seen as imposed by foreign powers and therefore illegitimate.

Inflation was severe. It was said that, before the war, you took your money to shop in a purse and brought your goods home in a wagon but, after the war, you took your money in a wagon and brought your goods home in a purse. The significance of the postwar German economic collapse cannot be overstated.

Hitler exploited the economic collapse of the 1920s but was also “lucky,” if that’s the right word, insofar that there was a model leader in nearby Italy who, according to the conventional wisdom of the day, was showing the world how the postwar European catastrophe could be overcome.  That leader was “Il Duce,” Benito Mussolini, who came to power in 1922 and became Hitler’s prototype autocrat.

The failed “Beer Hall Putsch” of 1923 provided another stroke of luck for Hitler. While he could have been incapacitated or executed, he was imprisoned only for a few months, a short time but long enough to dictate Mein Kampf.

Yet the most vile aspect of Hitler’s reign was his scapegoating of, German Jews. Human beings are always tempted to avoid accepting responsibility for our failures; they are always, people tend to think, the fault of someone else. And Hitler was the worst temptation. Jews and anti-Semitism had existed in Europe for centuries. They had been blamed for outbreaks of the plague and other calamities, so why not, Hitler thought, blame them for Germany’s present troubles?

Finally, Hitler had great oratorical ability and used it to bring all these factors together into the mass movement known as National Socialism (Nazism). Germany had fallen apart and saw itself as the ravished victim of evil forces. Hitler offered change, hope, order, prosperity and restoration. The German people were quick to climb on board but, to their eternal grief and shame, eventually learned they had made a Faustian bargain with the devil. Their slogan was “Ein Volk, ein Reich, ein Fuehrer,” one people, one empire, one leader, but what they got was defeat, destruction and everlasting infamy.

Winfield H. Rose, Ph.D., is Distinguished Professor of Political Science Emeritus at Murray State University.

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New Deal and the Great Society: Warnings From America’s Founders on Constitutional Misconstruction

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Guest Essayist: Andrew Langer


We are going to assemble the best thought and broadest knowledge from all over the world to find these answers. I intend to establish working groups to prepare a series of conferences and meetings — on the cities, on natural beauty, on the quality of education, and on other emerging challenges. From these studies, we will begin to set our course toward the Great Society. – President Lyndon Baines Johnson, Ann Arbor, MI, May 22, 1964

In America in 1964, the seeds of the later discontent of the 1960s were being planted. The nation had just suffered an horrific assassination of an enormously charismatic president, John F. Kennedy, we were in the midst of an intense national conversation on race and civil rights, and we were just starting to get mired in a military conflict in Southeast Asia.

We were also getting into a presidential election, and while tackling poverty in America wasn’t a centerpiece, President Johnson started giving a series of speeches talking about transforming the United States into a “Great Society”—a concept that was going to be the most-massive series of social welfare reforms since Franklin Roosevelt’s post-depression “New Deal” of the 1930s.

In that time, there was serious debate over whether the federal government even had the power to engage in what had, traditionally, been state-level social support work—or, previously, private charitable work. The debate centered around the Constitution’s “general welfare” clause, the actionable part of the United States Constitution building on the Preamble’s “promote the general welfare” language, saying in Article I, Section 8, Clause 1 that, “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;” (emphasis added)

Proponents of an increased federal role in social service spending have argued that “welfare” for this purpose means just what politicians today proffer that it does: that “welfare” means social service spending, and that because the Constitution grants Congress this power, such power is expansive (if not unlimited).

But this flies in the face of the whole concept of the Constitution itself—which is the idea of a federal government of limited, carefully-enumerated powers. The Founders were skeptical of powerful, centralized government (and had fought a revolution over that very point), and the debate of just how powerful, how centralized was at the core of the Constitutional Convention’s debates.

Constitutional author (and later president) James Madison said this in Federalist 41:

It has been urged and echoed, that the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,’’ amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction. Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases.

In 1831, he also said, more plainly:

With respect to the words “general welfare,” I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.

This was, essentially, the interpretation of the clause that stood for nearly 150 years—only to be largely gutted in the wake of FDR’s New Deal programs. As discussed in the essay on FDR’s first 100 days, there was great back and forth within the Supreme Court over the constitutionality of the New Deal—with certain members of the court eventually apparently succumbing to the pressure of a proposed plan to “stack” the Supreme Court with newer, younger members.

A series of cases, starting with United States v. Butler (1936) and then Helvering v. Davis (1937), essentially ruled that Congress’ power to spend was non-reviewable by the Supreme Court… that there could be no constitutional challenge to spending plans, that if Congress said a spending plan was to “promote the general welfare” then that’s what it was.

Madison was right to be fearful—when taken into the context of an expansive interpretation of the Commerce Clause, it gives the federal government near-unlimited power. Either something is subject to federal regulation because it is an “item in or related to commerce” or it is subject to federal spending because it “promotes the general welfare.”

Building on this, LBJ moved forward with the Great Society in 1964, creating a series of massive spending and federal regulatory programs whose goal was to eliminate poverty and bring greater equity in social service programs.

Problematically, LBJ formed a series of “task forces” to craft these policies—admittedly because he didn’t want public input or scrutiny that would lead to criticism of the work his administration was doing.

Normally, when the executive branch engages in policymaking, those policies are governed by a series of rules aimed at ensuring public participation—both so that the public can offer their ideas at possible solutions, but also to ensure that the government isn’t abusing its powers.

Here, the Johnson administration did no such thing—creating, essentially, a perfect storm of problematic policymaking: a massive upheaval of government policy, coupled with massive spending proposals, coupled with little public scrutiny.

Had they allowed for greater public input, someone might have pointed out what the Founders knew: that there was a reason such social support has traditionally been either the purview of local governance or private charity, that such programs are much more effective when they are locally-driven and/or community based. Local services work because they better understand the challenges their local communities face.

And private charities provide more effective services because they not only have a vested interest in the outcomes, that vested interest is driven by building relationships centered around faith and hope. If government programs are impersonal, government programs whose management is far removed from the local communities is far worse.

The end result is twofold:  faceless entitlement bureaucracies whose only incentive is self-perpetuation (not solving problems), and people who have little incentive to move themselves off of these programs.

Thus, Johnson’s Great Society was a massive failure. Not only did it not end poverty, it resulted in a devastating perpetual cycle of it. Enormous bureaucratic programs which still exist today—and which, despite pressures at various points in time (the work of President Bill Clinton and the GOP-led Congress after the 1994 election at reforming the nation’s welfare programs as one example), seem largely resistant to change or improvement.

The Founders knew that local and private charity did a better job at promoting “the general welfare” of a community than a federal program would. They knew the dangers of expansive government spending and the power that would accrue with it. Once again, as Justice Sandra Day O’Connor said in New York v. United States (1992), the “Constitution protects us from our own best intentions.”

Andrew Langer is President of the Institute for Liberty, as well as Chairman and Founder of the Institute for Regulatory Analysis and Engagement. IFL is a non-profit advocacy organization focused on advancing free-market and limited government principles into public policy at all levels. IRAE is a non-profit academic and activist organization whose mission is to examine regulations and regulatory proposals, assess their economic and societal impacts, and offer expert commentary in order to create better public policies. Andrew has been involved in free-market and limited-government causes for more than 25 years, has testified before Congress nearly two dozen times, spoken to audiences across the United States, and has taught at the collegiate level.

A globally-recognized expert on the impact of regulation on business, Andrew is regularly called on to offer innovative solutions to the challenges of squaring public policy priorities with the impact and efficacy of those policies, as well as their unintended consequences. Prior to becoming President of IFL and founding IRAE, he was the principal regulatory affairs lobbyist for the National Federation of Independent Business, the nation’s largest small business association. As President of the Institute for Liberty, he became recognized as an 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.

Andrew has had an extensive career in media—having appeared on television programs around the world. From 2017 to 2021, he hosted a highly-rated weekly program on WBAL NewsRadio 1090 in Baltimore (as well as serving as their principal fill-in host from 2011 until 2021), and has filled in for both nationally-syndicated and satellite radio programs. He also created and hosted several different podcasts—currently hosting Andrew and Jerry Save The World, with long-time colleague, Jerry Rogers.

He holds a Master’s Degree in Public Administration from Troy University and his degree from William & Mary is in International Relations.

 

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The Constitutional Wisdom Ignored by the New Deal and Great Society

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Guest Essayist: Patrick Garry


Numerous economic downturns and crises plagued America during the first one hundred fifty years of its existence. The nineteenth century witnessed repeated depressions. Undoubtedly, the Great Depression of the 1930s amounted to the most severe economic crisis ever experienced in the United States. As with all previous crises, however, the country recovered from the Great Depression and lifted the rest of the world into an age of greater prosperity.

Economically, America has transcended the Great Depression, and did so relatively quickly. Constitutionally and politically, however, the Great Depression still haunts the United States. This haunting legacy arose because of actions the federal government took in response to the world-wide economic events of the 1930s. The New Deal agenda pushed by President Franklin D. Roosevelt and his Democratic Party permanently changed the nature and role of the federal government, as well as the public’s expectations and demands on that government.

Contrary to one hundred and fifty years of political and constitutional experience, the New Dealers decided to combat the Great Depression by concentrating huge amounts of power within the executive branch of the federal government, leading to the bureaucratic behemoth that now characterizes the administrative state. This administrative state has produced a government in which individual citizens have little voice or control, thereby leaving that government with little accountability to the public. The administrative state has produced staggering, incomprehensible deficits that will at some point leave some future generation with an insurmountable burden. Because of its size, its distance from individual citizens, and its unaccountable bureaucrats, the administrative state has also spawned a deepening culture of political corruption within the federal government. None of these occurrences, however, would have surprised the constitutional Framers, who tried very diligently to protect against such occurrences.

The United States Constitution was a unique document. It created an exceptional form of government, unknown in the rest of the world at that time. Among its many exceptional features, one of the most important was its power-limiting feature. Although the Constitution established a strong national government, it also imposed an array of limitations on that power to prevent the federal government from becoming so strong that it could threaten the liberty of its citizens. As the Framers foresaw, a government without adequate controls could easily accumulate the kind of power that would then insulate that government from public accountability, providing the conditions rife for corruption and abuses.

Three characteristics of the U.S. Constitution that would later be ignored and even contradicted by the New Deal promoters are: first, the Constitution’s enumerated power scheme, in which only the powers specifically outlined in the Constitution are granted to the federal government; second, the separation of powers scheme, in which the power of each branch of the government – e.g., executive, legislative and judicial – is checked by the other branches; and third, the federalism scheme of the Constitution, in which the power of the federal government is limited by the role and power of the states. By concentrating unprecedented powers in the federal executive branch, the New Deal violated the federalism and the separation of powers dictates of the Constitution. And by giving to that newly empowered central government new and unprecedented authority over subject areas not enumerated in the constitutional delegation to the federal government, the New Deal violated the enumerated powers scheme of the Constitution.

Not only did this constitutional contradiction swell the size and power of the federal government beyond the wise forecasts of the Framers, it also restricted then the vibrancy of self-government in the United States. As the Framers foresaw, self-government thrives when the public engages in its government and actively directs that government. But as the Framers also foresaw, such engagement requires accountability – and accountability is best achieved when government is closer and more open to the public. This closeness and openness characterize state and local governments, but it was just those governments that the New Deal restrained by giving such vast powers and authority to the federal government.

Many of the problems with the federal government today would never occur in families or small business or state or local governments. That is because in those venues there is a greater transparency and accountability. While there might be corruption in state governments, it is nowhere near the scale of corruption at the federal level. The Framers knew this; and therefore to save the federal government from itself, the Framers imposed limitations on the power of that government, because the Framers knew the temptations for excess and abuse that would be created by unlimited power.

The Great Society programs of the 1960s and 1970s replicated the New Deal arguments for more power to be concentrated in the federal executive branch. And not surprisingly, many of the Great Society programs have descended into corruption and waste. The federalism revolution waged by the Supreme Court in the 1990s tried to revive the Constitution’s limited government scheme. Even President Bill Clinton in 1996 admitted that “the era of big government was over.” However, with the 2008 recession, the Affordable Care Act and the covid pandemic, big government came roaring back with a vengeance. Whether this unintended turn in America’s constitutional history can be meaningfully addressed, whether a lasting reform of the New Deal and Great Society distortions of constitutional structure power can be achieved will depend on America’s lasting commitment and embrace of the Framers’ wisdom.

 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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Economic Depression, New Deal, and the Great Society: America’s Founders on Separation of Powers to Restrain Unelected Administrative Tyranny

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Guest Essayist: Tony Williams


The average government textbook explains that the American constitutional order has three branches of government: legislative, executive, and judicial which make up the reason for the three branches of government in the foundational principle of separation of powers. Drawing on Enlightenment thinker, Montesquieu, James Madison wrote in Federalist #51 that it was “admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own.”

The Founders feared that tyranny would result when the separation of powers was violated and one branch of government became too powerful.  “The accumulation of all powers, legislative, executive, and judiciary, in the same hands… may justly be pronounced the very definition of tyranny.” Scholars have used the terms imperial presidency, imperial judiciary, and imperial Congress to describe a dangerous accumulation of power in one of the branches.

All of this constitutional analysis should remind us that an unofficial fourth branch of government—the administrative state, or simply, the bureaucracy—amassed an incredible amount of regulatory power throughout the course of the twentieth century and into this century. Indeed, if one were to examine a chart of all the regulatory agencies, it would be hard to find an area of American daily life that is not regulated in dozens of ways throughout the day.

The reason for the regulatory agencies makes a certain amount of sense in an advanced industrial society and economy. All Americans want to fly in safe airplanes, drink clean water, and know what they are eating.

The administrative state began in the late nineteenth and early twentieth century with similarly good intentions. Corruption was rife as trusts had undue influence in Congress and the state legislatures. Reformers wanted to create more non-partisan governance with the creation of a civil service freer from the spoils system of the two parties.

Most importantly, the progressives at the turn of the century sought to change the nature of American government from the Founders. Legislative politics and the separation of powers principle, they believed, was too messy and often an impediment to regulating an advanced industrial economy. They wanted rule by objective administrative experts who would apply their academic and scientific expertise for rational, efficient government resulting in progress and an ordered society.

The result was a great expansion of the administrative state. The Interstate Commerce Commission, Food and Drug Administration, and the Federal Trade Commission were only some of the executive agencies that Congress created to regulate and rationalize the economy and society during the Progressive Era. President Woodrow Wilson and Congress continued this trend during World War I with several wartime agencies to manage mobilization efficiently.

The New Deal in the 1930s saw a dramatic increase in regulatory power of the federal government. Among these were numerous executive agencies Congress established during the Great Depression to achieve FDR’s goals of relief, recovery, and reform. These were consistent with the progressive vision of rational and orderly rule by experts. The Federal Communications Commission, National Labor Relations Board, and the Securities & Exchange Commission were only some of the agencies comprising the New Deal administrative state.

The Supreme Court initially thought the administrative state was running amok. In Schechter v. U.S. (1935), the Court ruled that the National Industrial Recovery Act was unconstitutional in part because Congress had delegated too much authority to the executive branch and violated the separation of powers. However, FDR appointed several justices to the Supreme Court, and it soon endorsed the administrative state for decades. In the 1984 Chevron decision, the Court went so far as to assert that courts should defer to administrative agencies interpreting their powers in congressional laws.

During the 1960s and 1970s, the Great Society and administration of President Richard Nixon created more executive agencies to regulate additional parts of the economy and society. The bureaucracy was greatly expanded with a wide variety of anti-poverty agencies and environmental agencies such as the Environmental Protection Agency. The administrative state became so large and powerful that one of the factors in the rise of the modern conservative movement culminating in the ascension of Ronald Reagan to the presidency was the promise of cutting the size of the federal government and thus the bureaucracy.

The rise of the bureaucratic administrative state was problematic for a number of reasons. First, it dramatically increased the scale and scope of federal government well beyond that envisioned by the Founders. Second, it substituted rule by the people and their representatives in Congress for rule by unelected experts in the executive branches. Third, at times, administrative agencies were allowed to set their own rules, enforce them, and decide and rule on disputes thereby amassing the power of all three branches of government.

James Madison and the Framers of the United States Constitution were right to separate the powers of America’s government into three branches. They understood that an accumulation of too much power in a single body would endanger liberty and republican government by violating the principle of a separation of powers as an important check on human nature.

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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Barriers to Dismantling Constitutionalism: America’s Founders and Their Safeguards Designed in the United States Constitution Against Progressivism

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Guest Essayist: Gary Porter
Pres. Theodore Roosevelt in 1904. He influenced Pres. Woodrow Wilson & other progressives to follow. All three 1912 Democratic presidential election candidates claimed to be progressives.


At a Townhall meeting in Hayward, California in 2010, then Congressman Peter Stark conceded: “Yes, the Federal government can do most anything in this country.” This statement would be shocking news to the likes of James Madison, Thomas Jefferson, George Washington, even “big government” Alexander Hamilton. A government which can “do most anything” is certainly not the government the Framers tried to create in 1787. If Congressman Stark was right, the “limited and enumerated powers” government that Madison believed they had designed no longer existed. If a limited government no longer exists in the United States, there has to be a reason, a cause for such a dramatic change.

The cause, in one word, is “progressivism.” Progressives have worked diligently, mostly quietly, to bring us to the point where “the Federal government can do most anything in this country,” and particularly where the federal court system is willing to elevate the progressive political agenda to the status of constitutional law.

This is not intended to be a comprehensive essay on progressivism, books, books and more books are devoted to that subject; but to proceed we must have a common understanding of what progressivism is and what progressives believe with which to compare to the principles of the United States Constitution.

prə-grĕs′ĭ-vĭz″əm, noun, “A political ideology that favours progress towards better conditions in society.”[i]  “As a political movement, progressivism purports to advance the human condition through social reform based on advancements in science, technology, economic development and social organization.”[ii]

Who doesn’t want to better the human condition? to improve our standard of living? Who would object to such a lofty goal? If that is the goal, how does a society work toward bettering its social, economic and humanitarian conditions? “The devil’s in the details.”

“In the United States, progressivism began as an intellectual rebellion against the political philosophy of Constitutionalism as expressed by John Locke and the Founders of the American Republic, whereby the authority of government depends on observing limitations on its just powers. What began as a social movement in the 1880s[iii], grew into a popular political movement referred to as the Progressive era; in the 1912 United States presidential election, all three U.S. presidential candidates claimed to be progressives.”[iv]

The winning progressive of the 1912 presidential election, Woodrow Wilson, is credited with coining the phrase “Living Constitution,” which holds that the Constitution must be reinterpreted frequently to keep it “relevant” to modern times. But to fully understand progressivism’s effect on the presidency, we must go back to America’s first acknowledged progressive President: Theodore Roosevelt.[v] Roosevelt’s approach to presidential power was that“[t]he executive power [is] limited only by specific restrictions and prohibitions appearing in the Constitution or imposed by Congress under it constitutional powers.”[vi] In other words, there are no limitations to presidential power except those specifically mentioned in the Constitution or acts of Congress. To Roosevelt, the Constitution vested the President with near unlimited power.

But Roosevelt and progressives who followed him ran into twin obstacles: the U.S. Constitution and the principle of majoritarianism. The Constitution created a limited-and-enumerated-powers government and required respect for the law, law created by legislative majorities. Majoritarianism requires 51 percent or better support for a policy to become law. Progressives have never been in a majority in the United States – only a small percentage of Americans, about 12 percent of American adults, [vii] today consider themselves “progressive.” But progressives have one trait in abundance: an unwavering belief they are right, and patience for the “long fight.”

Their first objective was to dismantle the restrictions placed on the federal government by the Constitution, and then, knowing that would not be sufficient, to mold the federal judiciary, particularly the Supreme Court, into a body willing to look beyond the law in favor of societal “progress,” a court system willing to follow the philosophy of Supreme Court Associate Justice Thurgood Marshall: “You do what you think is right, and let the law catch up.”[viii] Until recently, they had succeeded famously in both respects.

What do Progressives believe? Although there are political parties called “Progressive” in other countries, notably countries where socialism is ascendant, there is no Progressive Party in the United States. Wikipedia identifies the Democratic Party as the current embodiment of progressivism in the United States.[ix] But within the Democratic Party there are “classical liberal,” moderate democrat, environmental and other factions. Progressives, while making great inroads, are still a minority. Research by Elaine Kamarck at the Brookings Institution in 2018 found that 44 percent of Democrats identified as a “progressive,” compared to 29 percent in 2016 and 26 percent in 2014.[x]

Bottom line: there is no single acknowledged platform or list of progressive beliefs. But here’s my view after considering multiple sources.

Utopianism. If there is one thing that distinguishes progressivism from other forms of political philosophy, it is an unflinching belief in the perfectibility of man and society. Human society has myriad problems; but progressivism holds that they can all be solved if we simply work together – and implement the solutions progressives have come up with. Mankind is innately good and those infrequent deviations when men and women do wrong should be handled carefully and gently – incarceration is usually a last resort (unless politics get involved; witness the January 6th prisoners).

Atheism/Agnosticism. Although a progressive form of Christianity has reportedly emerged in the last few years (focusing on the so-called “Social Gospel”), progressives typically have no use for God, divine revelation, divine providence, or the concept of original sin.

Universalism/Globalism. Progressives believe a single, one-world government is the perfect vehicle to bring about progressive ends as quickly and efficiently as possible.

Statism. Progressives view government as a tool, perhaps the best tool to achieve the perfect society. While they tout “freedom from government interference” they do not hesitate to use the power of government to achieve their societal ends.

Collectivism/Cooperation. Progressivism holds to a diminished view of individualism and private property, replaced by the need for everyone to cooperate to achieve progressive goals, to include forced “cooperation” if necessary.

Historicism. Historicism is a belief that history must be understood in context, and if the proper progressive-anointed context is not present in the traditional way of teaching certain history, the history must be re-interpreted in the “correct” context (the 1619 Project being the perfect example).

Enhanced Group Rights, Diminished Individual Rights. A diminished view of free speech, for example, replaced by limitations on speech in pursuit of “harmony,” “non-offensiveness” and an obsession with “disinformation.” British police arrested someone recently because their repost of a post on Facebook caused someone “anxiety.”[xi]

Social Justice. “Social Justice” is measured by equality of outcome rather than equality of opportunity. Social Justice is of paramount importance to the progressive, and the full strength of government should be employed to achieve it. “Too much economic and political power is concentrated in too few hands.”

Living Constitution. As has been quoted, progressivism is at least partially a response to constitutionalism, the idea that a written constitution both empowers and limits the power of the government it creates. But progressives do not abandon the Constitution altogether when they encounter its limits, they simply re-interpret the document to remove the limits. “Progressivism insists that the principled American constitutionalism of fixed natural rights and limited and dispersed powers must be overturned and replaced by an organic, evolutionary model of the Constitution.”[xii]

A typical response of a progressive to being told that something can’t be done for constitutional reasons was voiced in 2010 by Speaker of the House, Nancy Pelosi: “If the gate Is closed, we will go over the fence, if the fence is too high, we will pole vault in.”[xiii]

Use of the Courts

In a 1912 speech, Theodore Roosevelt complained that the courts often obstruct the will of the people in an unproductive manner. I’m not sure which “people” Roosevelt was talking to, but if you believe this, how do you overcome it? You populate the courts with progressive judges and justices. When you can’t seem to get the Supreme Court to see things your way, you employ a little “arm twisting” such as the famous “Court Packing” threat of FDR.

Perhaps the most compelling proof that progressives see the court as the mechanism for enacting policy preferences which don’t stand a chance in the democratic process was the recent “full-court press” used to try to prevent the confirmation of three conservative justices to the Supreme Court. But even this theater was over-shadowed by the apoplectic reactions that followed the Dobbs decision, in which a conservative-majority court returned the issue of abortion to the democratic process in each state. This, predictably, has led to demands to “pack the court” and return the court to the progressive policy-factory it once was.

Use of the Public Schools

Progressive educator John Dewey, typically called the “father of modern public education,” wrote: “I believe that education is the fundamental method of social progress and reform… a regulation of the process of coming to share in the social consciousness; and that the adjustment of the individual activity on the basis of this social consciousness is the only sure method of social reconstruction.”[xiv] (Emphasis added.) Today, it is safe to say, progressives dominate the U.S. public school systems.  They control the curriculum, administration, library book selections and of course the actual teaching that goes on in most classrooms. According to the Center for American Progress, the public school system is graduating more progressives each June.[xv]

The Constitution’s Challenges to Progressivism

Originalism. There is no question that the Founders intended the Constitution to be interpreted as they understood it. In an 1824 Letter to Henry Lee, James Madison insisted that:

“I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that is not the guide in expounding it, there may be no security for its faithful exercise.”

Thomas Jefferson’s view was similar:

“On every question of construction, let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.”

“But the Founders didn’t have to contend with the global threat of climate change” is the frequent retort today. “Certainly, the Constitution must be adapted to deal with this modern threat.” So, who best to “adapt” the Constitution to modern conditions? Why, nine unelected judges in black robes, of course. We certainly can’t leave such an important issue to democracy now, can we?

Checks and Balances. Leaving aside the myth that the Framers created three “co-equal” branches of government,[xvi] the framers did imbed certain safeguards against a single branch of government assuming unwarranted power. “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny.”[xvii] Unfortunately, many of these “checks and balances” have been systematically disassembled by the Supreme Court. For a list of the court decisions which have essentially shredded the Constitution’s limits on governmental power see here or read: The Dirty Dozen, How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom, 2008, by Robert A. Levy and William Mellor.

Separation of Powers. This doctrine is another traditional restraint on the accumulation of unintended power which has been at least partially dismantled by the Supreme Court. The 1989 decision in Mistretta v. U.S. found that:

“… our jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives. Accordingly, this Court has deemed it “constitutionally sufficient” if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.” (Emphasis added.)

In other words, the non-delegation of powers doctrine held by John Locke and others of the Founding Era would be ignored, the people not consulted, and Congress simply given this ability to delegate. Making matters worse was the opinion in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,[xviii] The Supreme Court declared that federal courts should defer to the decisions of Executive Branch agencies when those agencies interpret the guidance in a statute if the “agency’s answer is based on a permissible construction [emphasis added] of the statute.” Some of these unsupported agency rules are challenged in court and overturned, and Congress has the power to overturn them as well, but a legal challenge is an expensive process, a quarter of a million dollars or more, so not every improper rule is challenged.

The Failures of the Progressive Vision

Progressivism came about as a challenge to constitutionalism. It should be clear by now that progressivism and constitutionalism simply cannot coexist; one must yield.

The basic problem with progressivism is that there is no end state, no way to tell whether progressive policies have worked; until the nebulous, undefinable state of “perfection” is reached, there can be only a steady, monotonous march onward toward “progress.”

Progressivism has brought us a federal government that can regulate every aspect of business, whether it deals with interstate commerce or not; a Code of Federal Regulations exceeding 180,000 pages; $2 Trillion in additional costs to U.S. businesses due to regulation compliance, a cost passed on to customers of those businesses; 4,500 plus federal crimes (compared with four in the original Constitution); the unwarranted taking of private property; in short: a government “that can do most anything in this country.”

Constitutionalism yielded during the Warren Court years and made somewhat of a comeback during the Rehnquist Court. What is disturbing to progressives now is the prospect of a new conservative court rolling back the “progress” progressives have made over the last 40-60 years. If there is reason for hope for constitutionalism today it lies in the present Roberts Court, placed during the Trump administration, with a 6-3 conservative to progressive balance. If the court can survive the progressives’ “full-court press” to change this balance, America might begin to see more of the progressive agenda to dismantle the original intentions of the United States Constitution, dismantled in the years ahead.

For further reading:

Progressivism

America Transformed: The Rise and Legacy of American Progressivism, 2021, by Ronald Pestritto.

Excuse Me, Professor, Challenging the Myths of Progressivism, 2015, Lawrence W. Reed.

Progressivism, A Primer on the Idea Destroying America, 2014, by James Ostrowski.

Plundered, How Progressive Ideology is Destroying America, 2012, by Michael Doffman.

How Progressives Rewrote the Constitution, 2006, by Richard Epstein.

The Progressive Era, Liberal Renaissance or Liberal Failure, 1965, Arthur Mann, ed.

The Supreme Court

Supreme Disorder; Judicial Nominations and the Politics of America’s Highest Court, 2020, by Ilya Shapiro.

Judicial Tyranny, 2014, by Mark Sutherland.

Storm Center, the Supreme Court in American Politics, 2011, by David Obrien.

Packing the Court, The Rise of Judicial Power and the Coming Crisis of the Supreme Court, 2009, by James Burns.

The Dirty Dozen, How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom, 2008, by Robert A. Levy and William Mellor.

Men In Black, How the Supreme Court is Destroying America, 2005, by Mark Levin.

Courting Disaster, How the Supreme Court is Usurping the Power of Congress and the People, 2004, by Pat Robertson.

The Tempting of America, 1990, by Robert Bork.

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 periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter @constitutionled.

[i] The American Heritage® Dictionary of the English Language, 5th Edition.

[ii] https://en.wikipedia.org/wiki/Progressivism

[iii] Some writers identify the Progressive Era as 1880 to 1920; I contend the Progressive Era never stopped.

[iv] https://en.wikipedia.org/wiki/Progressivism

[v] Roosevelt was President from September 14, 1901 to March 4, 1909.

[vi] Theodore Roosevelt, An Autobiography of Theodore Roosevelt, ed., Stephen Brennan (New York: Skyhorse Publishing, 2011), 304–10

[vii] Accessed at https://news.gallup.com/poll/141218/americans-unsure-progressive-political-label.aspx Note, 54%of respondents were “unsure” whether the progressive label fit them.

[viii] https://www.azquotes.com/quote/914008

[ix] https://en.wikipedia.org/wiki/Progressivism#Progressive_parties_or_parties_with_progressive_factions

[x] https://www.npr.org/2018/10/29/659665970/as-more-democrats-embrace-progressive-label-it-may-not-mean-what-it-used-to

[xi] https://citizenfreepress.com/breaking/man-arrested-for-causing-anxiety-on-facebook/.

[xii] Bradley D. S. Watson, accessed at: https://amgreatness.com/2021/08/11/how-progressives-rewrote-american-history/

[xiii] Nancy Pelosi, accessed at: https://www.speaker.gov/newsroom/if-the-gate-is-closed-we-will-go-over-the-fence-if-the-fence-is-too-high-we-will-pole-vault-in

[xiv] John Dewey, My Pedagogic Creed, School Journal vol. 54 (January 1897), pp. 77-80

[xv] https://www.americanprogress.org/article/public-opinion-snapshot-millennials-are-a-progressive-generation/

[xvi] It is an irrefutable fact that the powers of the Congress eclipse those of either of the other two branches.

[xvii] James Madison, Federalist 47.

[xviii] Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)

 

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The United States Constitution and Institutional Framework for Executive Firmness

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Guest Essayist: Will Morrisey
President Woodrow Wilson, State of the Union address, December 2, 1913.https://en.wikipedia.org/wiki/Woodrow_Wilson#/media/File:Congress_opening_message_63rd_02406a.tif


Good government produces good administration, Publius has written. Good administration is what we need from the executive branch, charged as it is with carrying out the laws enacted by the legislature within the framework of the supreme law of the land, the United States Constitution. A good executive must act with energy. To enable executives so to act, the offices they occupy must have unity, duration, adequate provision in terms of money and personnel, and competent powers. Publius therefore defends the Framers of the Constitution in their establishment of a presidency unlike the consular system of Rome, which assigned domestic policy to one consul, foreign (and especially military) policy to another. The American president serves as chief administrative officer for domestic policy as well as Commander-in-Chief of the armed forces. Congress may not manipulate his salary and the president can exercise the power to veto Congressional legislation, thereby maintaining his independence of judgment. He is, then, neither a monarch nor a legislator but a republican executive.

In Federalist 71, Publius presents the reasons for and the institutional means to enable duration in office, “the second requisite to the energy of the executive authority.” There can be no substitute for character, for “the personal firmness of the executive in the employment of his constitutional powers.” Nor can there be any substitute for “the stability of the system of administration which may have been adopted under his auspices” as a consequence of that firmness of character. But no person can exercise such character or carry out such a system without an institutional framework which permits him to do so.

As always, Publius shows the link between the Constitution’s institutional arrangements and human nature. “It is a general principle of human nature that a man will be interested in whatever he possesses, in proportion to the firmness or precariousness of the tenure by which he holds it; will be less attached to what he holds by a momentary or uncertain title, than to what he enjoys by a durable or certain title.” The firmness of the man must be reinforced by the firmness of the office. In regimes whose executives serve at the whim of the legislature, as in many parliamentary systems, why would any person of character take the executive office seriously? Better to be a power broker in the parliament than the hapless holder of fly-by-night executive powers, powers that will not last if you exhibit the slightest hint of independence. And if you accepted such an office, why risk anything to defend powers which are not truly yours to wield? Such an institutional arrangement undermines civic courage, inclining the one who suffers under it, “too little interested in it to hazard any material censure or perplexity from the independent exertion of his powers, or from encountering the ill-humors, however transient, which may happen to prevail, either in a considerable part of the society itself, or even in a predominant faction in the legislative body.”

This defect had already been on display under the Articles of Confederation, which did not separate executive power from the legislative branch. The Americans who wanted to retain the Articles regime against the proposed Constitution were “inclined to regard the servile pliancy of the executive to a prevailing current, either in the community or in the legislature, as its best recommendation.” They want representative government to mirror Athenian-style direct democracy as much as possible, to have it register the opinions and even the passions of the people and their elected legislators. Publius considers such notions as “very crude,” with regard both to the ends and especially the means of government.

The Declaration of Independence set down the just purpose of American government as securing the safety and happiness of the American people, a purpose justified by their natural right to life, liberty, and the pursuit of happiness under the Laws of Nature and of Nature’s God. Much of that is “self-evident,” the Declaration says. Publius agrees: “It is a just observation that the people commonly intend the PUBLIC GOOD.” But as those same people themselves acknowledge, having learned it from experience under the Articles regime, they do not “always reason right about the means of promoting” the public good, “beset as they continually are by the wiles of parasites and sycophants, by the snares of the ambitious, the avaricious, the desperate, by the artifices of men who possess their confidence more than they deserve it, and of those who seek to possess rather than to deserve it.”

If self-government is therefore dangerous, “the republican principle demands that the deliberate sense of the community should govern the conduct of those to whom” the people “intrust the management of their affairs.” Characteristically, Publius attempts to firm up the chance that the distinctively human characteristic, reason, will have the greatest possible authority in government while acknowledging the impassion—Christian would say ‘fallen’–character of human beings.

There will, then, be circumstances “in which the interests of the people are at variance with their inclinations, it is the duty of the persons whom they have anointed to be the guardians of those interests to withstand the temporary delusion in order to give them time and opportunity for more cool and sedate reflection.” Thus to serve the people “at the peril of their displeasure” takes “courage and magnanimity.”

It is important to pause and appreciate the moral structure of Publius’ argument, here. He wants to see the rule of reason in the United States—to the extent possible, given human frailty. The Constitution generally, and a four-year, renewable presidential term in particular, provides an institutional framework for such rule. But neither the rule of reason nor the defense of the Constitution can survive without two other virtues that array themselves against popular passion. Civic courage is easy to understand and to appreciate, if not commonplace. We have all seen examples of men and women, even children, who have refused to buckle under ‘peer pressure.’ Magnanimity is less well understood.

Magnanimity literally means greatness of soul: in Latin, magnus means great, large; anima means soul. The classic description of the great-souled individual comes from Aristotle’s Nicomachean Ethics IV.3. The great-souled man, Aristotle writes, “deems himself worthy of great things and is worthy of them.” This means that he possesses all the cardinal virtues—courage, moderation, justice, and prudence—to a very high degree. Accordingly, he stands ready to withstand the demands of others, however intensely they may clamor, when he sees that those demands are cowardly, immoderate, unjust, or imprudent. He can take the heat, and he can do it without resentment.

A republican regime undergirded by a democratic civil society will test him. He can pass that test, but without a firm institutional foundation on which to stand he will be physically overwhelmed by the majority tide, helpless to resist “the humors of the legislature.” The Articles of Confederation government had folded executive and judicial power into the legislature, giving inadequate support for reason, courage, or magnanimity—the finest human characteristics. “To what purpose separate the executive or the judiciary from the legislature,” as the new Constitution had done, “if both the executive and the judiciary are so constituted as to be at the absolute devotion of the legislative” branch? The powers would then be separated in name only, with the legislature “exert[ing] an imperious control over the other departments,” unbalancing the apparently balanced powers of the federal government as framed by the Constitution.

This is exactly what has been happening under the Articles. The same thing will happen again unless the president enjoys a stable tenure in office. In view of this, “it may be asked whether a duration of four years would answer to the end proposed,” whether such a duration of a presidential term will suffice to resist attempts by legislators to dominate the system. Publius does not pretend that he knows the answer, since a four-year term was untried in previous American governments and the lifelong term of a European monarch—in principle if not always in practice as stable a provision as can be had—was highly undesirable. It is nonetheless reasonable to think that a four-year presidential term “would have a material influence upon the spirit and character of the government.”

Why? Because any person “endowed with a tolerable portion of fortitude” should see that there is “time enough” before the current term expires, and the prospect of re-election draws near, for the people and their legislative representatives to have calmed down and to be ready to assess the president with equanimity. True enough, this would mean that he might not dare to resist popular disapproval so readily as his term drew to an end, but for most of the time he would be able to hold steadily to his constitutional duties and best judgment. At the same time, unlike a monarch, a president won’t stay in office long enough “to justify any alarm for the public liberty.” Which is not to say that his enemies won’t try to raise such alarms.

Publius’ understanding of the presidency not only departs from the conception of executive power which prevailed under the Articles, it also contradicts the new conception of the presidency advanced by the Progressives, more than a century later. President Woodrow Wilson rejected the United States Constitution as an antiquated and constricting product of a bygone era, and equally rejected its moral foundation in the laws of Nature and of Nature’s God. In place of natural right, he substituted historical right, claiming that the course of events, guided by divine Providence, provided the true moral light for humanity. In view of this continuing historical progress, the Constitution must be reconceived as an ‘elastic’ or ‘living’ document, to be reinterpreted by political leaders such as himself who placed themselves on the cutting edge of that progress. In place of magnanimity, Wilson substituted compassion, not so much a virtue as a sentiment, one intended to carry the people along on a tide of emotion with slogans like ‘I feel your pain.’ The president, then, should serve not so much as the executor of Congressional legislation within a stable constitutional framework but as the principal leader of the nation, the person who senses where public opinion should go next, appealing more to their passion than their prudence in the hope of induing the people to follow him to that ever-new, ever-higher destination.

As a result, the Progressives raised expectations to unfulfillable heights, grafting their own unusual brand of moving-target ‘constitutionalism’ onto the old Constitution, with predictably confusing and self-contradictory results that have persisted to this day.

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

 

 

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Power Concentrated in the Hands of a Few: Conflict of Progressive Government Toward American Individualism and the United States Constitution

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Guest Essayist: Joerg Knipprath
Herbert Croly (1869-1930) early influencer of progressivismhttps://en.wikipedia.org/wiki/Herbert_Croly


At the 1896 Democratic Party convention in Chicago, a former Congressman from Nebraska, William Jennings Bryan, gave a stirring oration in favor of the party’s “pro-silver” political platform. Filled with passion and a near-revolutionary fire, the speech concluded with a warning to those who wanted the United States to maintain a gold standard for the dollar, “You shall not press down upon the brow of labor this crown of thorns; you shall not crucify mankind upon a cross of gold.” Bryan underscored this patently religious analogy by posing at its conclusion with his arms outstretched like someone nailed to a cross. The convention erupted in pandemonium. The ecstatic reaction of the delegates resulted in the “Boy Orator of the Platte River” receiving the party’s nomination for president of the United States at age 36, the youngest major party nominee ever. He became the Democrats’ presidential standard bearer twice more, in 1900 and 1908, again the only major party nominee to do so. He lost each time.

In addition to the Democratic Party nomination, Bryan received that of the more radical, mostly rural-based Populist Party, which favored federal government intervention in the economy. The Populists split after the 1896 election, with most supporters voting for Democrats, while others, typically urban workers, drifted to the Socialist Party. Although historians have long debated the direct influence of the Populist Party on the Progressive movement of the turn of the 20th century, there are clearly identifiable connections between them in regards to economic and political reforms. One difference, however, is in their class identification. The Populist movement was working class and agrarian. The Progressive reformers were upper-middle class urbanites, many from the Midwest. Related to that difference was the greater support for Progressivism among intellectuals and “scribblers,” which produced a more coherent political program and a stronger ideological framework. Ultimately, this produced far greater political success for the Progressive agenda—and more lasting repercussions.

As that passage from the “Cross of Gold” speech suggests, Bryan had a strong evangelical and Calvinist bent. He had a religious conversion experience as a teenager and in his entire life remained a theological conservative who preached a social gospel. His resort to religious imagery and apocalyptic language was not uncommon among Progressives. Theodore Roosevelt could thunder to the assembled delegates at the Progressive Party convention in 1912, “We stand at Armageddon, and we battle for the Lord,” as his enraptured supporters marched around the hall, singing “Onward, Christian Soldiers” and similar spirited hymns.

Those Progressives who were more skeptical of religion nevertheless had similarly messianic visions of reform which would deliver the country from its ills and lead to the Promised Land. The forces for change would be a democratized political structure invigorated by mass participation; a concerted program to attack the root causes of societal dysfunctions, from poverty to alcohol, narcotics, gambling, and prostitution; laws to prevent exploitation of the large urban working class; and, most fundamental, a rational system of policy-making controlled by a strong executive and a stable bureaucracy of technological and scientific experts. As presidential nominee Woodrow Wilson announced in his campaign platform in 1912, “This is nothing short of a new social age, a new era of human relationships, a new stage-setting for the drama of life.” Certainly nothing picayune or transitory about that!

The first of those goals was accomplished over time with the popular election of Senators through the 17th Amendment, and through the adoption by many states of the initiative and referendum process, primary elections for nominations for public office, more expanded “home rule” for localities, and non-partisan elections for local offices. Further, the half of American women excluded from the franchise received it through the 19th Amendment, adopted in 1920. On the other hand, by the late 1920s, the Progressives’ nativism eliminated the previous practice in a number of states of letting non-citizen immigrants vote.

The second came in the form of state laws against vice. Lotteries became illegal. Prostitution, which was ubiquitous at the turn of the 20th century typically in the form of brothels, was already against the law; those laws began to be enforced more vigorously. Another of America’s periodic movements to ban alcohol got under way. Because state laws often proved unable to control interstate markets of vice made possible through easier modes of transportation, the federal government became involved. Narcotics were regulated through taxation under the Harrison Narcotics Tax Act of 1914. The interstate transportation of lottery tickets was prohibited in 1895 through a federal law upheld by the Supreme Court in Champion v. Ames in 1903. The Mann Act, or White Slave Traffic Act of 1910, prohibited taking a woman across state lines for immoral purposes. That law was upheld by the Supreme Court in Hoke v. United States in 1913 and extended to non-prostitution private dalliances in Caminetti v. United States in 1917. After 27 states declared themselves “dry,” and others adopted “local options” to prohibit alcohol, temperance groups, especially those connected to upper-middle class women’s organizations, succeeded in having the 18th Amendment adopted in 1919. That national ban on production, sale, and transportation of alcohol for drinking was quickly followed by enabling legislation, the Volstead Act, that same year.

The third area of social reform was advanced through the adoption of maximum hour laws, minimum wage laws, unionization protections, and anti-child labor laws around the turn of the 20th century. Some such efforts, especially by Congress, initially came a cropper before the Supreme Court as violations of the United States Constitution. They fared better during the next wave of Progressivism under President Franklin Roosevelt in the 1930s.

The fourth, a government and society directed by an unelected technocratic elite of policy-making experts, lay at the heart of the Progressive movement. It proved to be a long-term project. To understand the “Progressive mindset” requires a closer examination of two men, Woodrow Wilson and Herbert Croly. There were other influential intellectuals, such as Walter Lippmann (who wrote A Preface to Politics in 1913, among many other works) and Brooks Adams (who was a grandson of President John Quincy Adams and wrote A Theory of Social Revolution that same year), but Wilson and Croly were renowned.

Thomas Woodrow Wilson was dour, humorless, and convinced of the fallen nature of all but the elect few. For human progress to flourish, he postulated the need for strong leaders with proper principles who would provide the discipline and vision for the moral guidance of the weak at home and abroad. Calvinist in appearance, outlook, and family background (his father and grandfather having been Presbyterian ministers), he embodied the caricature of a Puritan divine. Those traits also made him a perfect Progressive.

Before becoming president of the United States, Wilson was a professor at Princeton University, later becoming its president. He also was elected governor of New Jersey. During his academic tenure, he wrote several influential books which set forth his criticisms of American constitutional structure. His proposed solutions cemented his bona fides as a Progressive.

Wilson was strongly influenced by 19th century German intellectual thought, especially Hegel’s views of the State as the evolutionary path of an Idea through history, and by contemporary adaptations of Darwinian theories to social science. Indeed, so enamored was Wilson of German philosophy and university research that his wife, Ellen, learned the language just to translate German works of political science for him.

Wilson enthusiastically embraced the nascent ideology of the State. He characterized that entity as organic and contrasted it with what he described as the mechanical nature of the Constitution with its structure of interacting and counterbalancing parts. As he wrote in Constitutional Government in 1908, “The trouble with [the Framers’ approach] is that government is not a machine, but a living thing. It falls, not under the theory of the universe, but under the theory of organic life. It is accountable to Darwin, not to Newton.”

The “organic” State tied to the people in some mystical union must not be shackled by a fusty piece of parchment with its artifice of checks and balances. An entirely new constitutional order must be created that reflects the inevitable ascendancy of the State in human affairs. If that was not a realistic option due to reactionary political forces or sentimental popular attachments, the parchment must be broadly amended. During Wilson’s first presidential term, constitutional amendments to authorize a federal income tax and to elect Senators by popular vote were approved.

Beyond formal amendment of the Constitution, the various components of the government had to be marshaled into the service of Progressivism. Thus, Congress must pass far-reaching laws that increase state power at the expense of laissez-faire individualism. The result was a series of federal regulatory laws in union-management affairs, antitrust, child labor, tax, and—through the creation of the Federal Reserve system—banking. That activism was replicated in many states. The era of big government had arrived.

As usual, the Supreme Court took longer. Though the Court upheld various particulars of Progressive legislation, the organic theory of the state was not embodied forthrightly in its decisions until the later New Deal years and the post-Second World War emergence of the “Living Constitution” jurisprudence. Adherents to the Progressive deification of the State, then and now, have sought to remake judicial doctrine by untethering it from formal constitutional structure in favor of ideological dogma. Their efforts have focused on an expansive interpretation of Congressional powers, disregard of the prohibition against excessive delegation of power to bureaucracies, and a transformation of the Equal Protection Clause into a contrivance for “positive” equality. On that last point, success has been slow in coming. But since every political entity necessarily has a constitution, for Progressives it is beyond cavil that their “organic state” requires a progressive living constitution, one that prioritizes social justice and secures equality of condition. Exempting, perhaps, the governing elite.

That left the Presidency. Wilson’s early work, Congressional Government from 1885, reflected his contempt for American separation of powers and urged constitutional change to a parliamentary-style system with centralized power and an expanded federal bureaucracy. He dismissed the president as a mere “clerk of the Congress.” Over the next two decades, his perceptions about the Presidency changed significantly. Wilson regarded the administrations of Grover Cleveland and Theodore Roosevelt as exemplary. His last major work, Constitutional Government, published in 1908, focused on the Presidency as the engine for change.

Wilson’s eventual views of the Presidency were thoroughly 20th century. He treated the formal constitutional powers of the office as minor matters and regarded its occupant as increasingly burdened by obligations as party leader and as executor of the laws and administrator of Congressional policies. That burden had become impossible for a single man, a refrain frequently heard before and since. This fact of political life would only become more pressing with the inevitable—and welcome—evolution to a more powerful and controlling State.

Therefore, a president will and must leave the performance of those duties increasingly in the hands of subordinates. The appointment of trusted officials was more important than the selection of wise men of different opinion to give him counsel, as George Washington did, or of leaders of prominent factions within the party coalition, as was the practice of, among others, Abraham Lincoln. Instead, as Wilson wrote, presidents must become “directors of affairs and leaders of the nation,—men of counsel and of the sort of action that makes for enlightenment.”

Theodore Roosevelt’s “bully pulpit” construct of the Presidency was the new model. The traditional chief executive dealt with the congressional chieftains to influence policy as it emerged within those chambers in response to the broadly-felt needs of the times. Instead, the modern president would bypass the ordinary channels of political power and appeal to the public to shape policy to his creative vision. Wilson wrote, “The President is at liberty, both in law and in conscience, to be as big a man as he can. His capacity will set the limit….” This Nietzschean conception of the Presidency as a vessel for its occupants to exercise their will to power is quintessentially fascist. The focus on the charismatic and messianic leader as the ideal of government and the vehicle for progress to a utopian just society is a hallmark of American progressivism to this day and has also characterized the more virulent forms of collectivism. There are telling appellations:  Il Duce Mussolini, Der Fuehrer Hitler, Vozhd Joe Stalin, El Líder Castro, and North Korea’s Kims (Great Leader, Dear Leader, and Respected Leader). All convey the same meaning. Personality cults inevitably accompany Progressive-style leaders.

Wilson’s descriptions of the Presidency and the reality of political practice had a core of truth, lest his prescriptions not be plausible. To get to those prescriptions, however, he set ablaze many constitutional straw men. Though he paid lip service to the Constitution’s framers’ sagacity, he understated their practical appreciation of the office. Alexander Hamilton wrote several Federalist Papers that extolled the need for energy and accountability in the Presidency which he argued were furthered by the Constitution’s structure of the unitary executive. Through his Pacificus Letters, Hamilton became the foundational advocate of a theory of broad implied executive authority on which later presidents relied, including Wilson’s model, Theodore Roosevelt. George Washington shaped the contours of the Executive Branch by his actions within the purposely ambiguous contours of presidential powers under the Constitution. There were serious debates in the Washington administration about the nature of the president’s cabinet and the constitutional relationship between the president and the officers, debates that were generally resolved in favor of presidential control over those officers.

Wilson decried what he saw as a lack of accountability in the Constitution’s formal separation of powers. Yet it was his system where the president is “above the fray,” while little-known and uncontrolled subordinates carry out all manner of critical policies without, allegedly, his awareness. Events over the past two years have amply demonstrated the flaws of rule by credentialed, but unaccountable “experts” at all levels of government. Their decrees, too often based on misunderstood or even fabricated “evidence” and produced in a closed culture implacably hostile to dissent, affected Americans in profound economic, psychological, and social ways. Long-cherished individual rights were brushed aside, selectively, by this pretended clerisy through appeals to the greater health of the society and the common good, appeals which were frequently shown not to affect the behavior of the elite elect. All the while, politicians sought to deflect responsibility onto those bureaucrats.

Herbert Croly was perhaps the most important intellectual of Progressivism, next to Wilson. That seems odd, given the tortuous language and convoluted emotive passages that characterize his work. The Promise of American Life, published in 1909, is Croly’s most significant contribution to public debate, one that supposedly so influenced Theodore Roosevelt it is said to have been the catalyst for Roosevelt’s return to politics as a third-party “Bull Moose” presidential candidate in the 1912 election. Whereas Wilson dealt with constitutional structure and politics, Croly focused on political economy.

In Promise, Croly described himself and his vision as Hamiltonian. But it painted as “Hamiltonian” something that Alexander Hamilton would have foresworn. Croly argued for organization of the economy through coordination among large nationalized corporations, powerful and exclusive labor unions, and a strong and activist central government. This was the classic corporatist model of “rationalizing” the economy. It embraced the essence of fascist political economy and, with some tinkering, of socialist and Progressive systems. Whereas Hamilton proposed to use government incentives to unleash the entrepreneurial and inventive spirit of Americans to create wealth which ultimately would benefit all, Croly wanted the national government to throttle such entrepreneurial opportunity in favor of large entities, enhance the powers of the few, and use public policy to legislate a welfare state for the poor. However, haphazard social welfare legislation would be inadequate. As noted, the program had to be comprehensive of the whole of society. Independent small businesses, as elements within traditional American republicanism, were the bane of Progressive true believers in mass organization. Theirs would be a coalition of the wealthy few, an administrative elite, the working class, and the mass of poor against the broad middle.

Another book, Progressive Democracy from 1914, extended Croly’s Progressive canon. It rested on the usual Progressive premises, such as the omnipotent, all-caring, and morally perfect Hegelian God-state that would be the inevitable evolutionary end of Progressive politics. It posited the notion—so common in Progressive and other leftist theory—of stages of human social and political development that have been left behind and whose outdated institutions are an impediment to ultimate progress. Hence, Croly insisted, the Constitution’s structure of representative government and separation and division of powers needed to be, and would be, changed. Unlike the societal realities of the late 18th century which had produced American republicanism in the form of representative government within a federal structure, “In the twentieth century, however, these practical conditions of political association have again changed, and have changed in a manner which enables the mass of the people to assume some immediate control of their political destinies.”

The new political mechanism was direct democracy, the most authentic expression of popular will. It was beloved of leftists of all stripes. At least in theory. However, Croly considered reforms such as the initiative, referendum, primaries, and popular election of Senators to be misdirected and inauthentic if they were used only to restrict government power and to correct government abuses. As such, they were still shackled by old conceptions about the primacy of individual rights and by the suspicion of powerful government that had characterized the earlier period of Jeffersonian republicanism. “If the active political responsibilities which it [direct democracy] grants to the electorate are redeemed in the negative and suspicious spirit which characterized the attitude of the American democracy towards its official organization during its long and barren alliance with legalism [the Constitution as a formal system of checks and balances that controls the actions of the political majority], direct democracy will merely become a source of additional confusion and disorganization.”

There were, then, bad and good direct democracy. The good form was one that produced the proper, Progressive social policy, and accepted the dominance of powerful state organs which could accomplish that policy: “Direct democracy…has little meaning except in a community which is resolutely pursuing a vigorous social program. It must become one of a group of political institutions, whose object is fundamentally to invigorate and socialize the action of American public opinion.” Note some key words: A political system must be measured by “meaning,” such as the quintessentially Progressive “Politics of Meaning,” long associated with manifestos of the American Left. “Vigor” and “action,” two words that were markers of Progressive ideology and rhetoric at the personal, as well as the political, level. Wilson, the two Roosevelts, and John and Robert Kennedy strove mightily to present themselves as embodying those very characteristics, often to hide physical limitations. Finally, “social” or “socialize,” as the antidote to the traditional American insistence on the rights of individuals that were derived from sources outside the State and which trumped the demands of the collective.

In that “good” form, popular participation was, in effect, a thermometer to measure the temperature of the public’s support for an activist political program. Croly advised, “A negative individualistic social policy implies a weak and irresponsible government. A positive comprehensive social policy implies a strong, efficient and responsible government….A social policy is concerned in the most intimate and comprehensive way with the lives of the people. In order to be successful, it must rest on the basis of abundant and cordial popular support.” Instead of a structure constrained by the text and the received traditions of fundamental law, government would be limited only by vague measures of its policies’ popularity.

Despite Croly’s perfunctory disclaimer, popular participation was to be little more than a plebiscite on actions to be taken by a legislature otherwise unrestrained by the formal structures of the “Law.” “The government must have the power to determine the Law instead of being circumscribed by the Law,” he wrote in Progressive Democracy. As Croly—and Wilson— recognized, legislatures would not be up to the task of supervising such an increasingly intrusive paternalistic State. Hence, a powerful administrative apparatus was required. That signature component of the modern regulatory state—the vast, unelected bureaucracy—was necessarily beyond the control of the people. True, it might be a dictatorship of the technocratic elite, but it would be a benevolent one, we are assured, always loyally and selflessly laboring for our weal.

But like H.G. Wells’ society of Eloi and Morlocks in The Time Machine, the Progressive state was not as benign as its propagandists depicted it on the surface. The Progressives had a strong Darwinian bent. If Woodrow Wilson identified the State as an organism governed by the biological laws of Darwin, those laws raised some uncomfortable topics. Evolution and change are the constants of such a system; evolution requires adaptation to change. But in the State, unlike nature, adaptation could not be left to chance but must be directed rationally. Where survival of the fittest was the rule, only the fittest could rule. That the government was not under more direct control of the people was due to what Croly euphemistically described as the small size of the fund of social reason.

In view of that scarcity of social reason, Croly explained, “[the] work of extracting the stores of reason from the bosom of society must be subordinated to the more fundamental object of augmenting the supply of social reason and improving its distribution.” This was a task critical to the success of government unconstrained by the old Constitutional structures. “The electorate must be required as the result of its own actual experience and unavoidable responsibilities to develop those very qualities of intelligence, character, faith and sympathy which are necessary for the success of the democratic experiment.”

While Croly proposed that education would provide the means of human progress and the nurturing of social reason among the mass of people, there were those who were unfit for such efforts. Croly, like Woodrow Wilson and unlike William Jennings Bryan, believed in the need for state regulation of marriage and reproduction to combat crime and insanity and to promote the propagation of the truly fittest. When he was governor of New Jersey, Wilson signed a law of just such tenor that targeted various “defectives” for sterilization. Therein is mirrored one of the traits commonly attributed to the progressive intellectual. He professes to idolize humanity and the principle of popular government, but he despises humans and distrusts individual autonomy and political choice.

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

 

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United States Constitutional System and Armed Forces: Decentralized Power and Due Process vs. Stalin’s Centralized Control by Military

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Guest Essayist: Andrew Langer
Vinnytsia people searching for relatives among exhumed victims, 1937, a massacre during Stalin’s Great Purge or Great Terror.https://en.wikipedia.org/wiki/Vinnytsia_massacre#/media/File:Vinnycia16.jpg


In the previous essay, the Stalinist era of Soviet history was juxtaposed against the concerns of the Founders as discussed in the Federalist Papers. In this essay, that same era is examined within the context of the United States Constitution as adopted and ratified, and to look at the “failures” of the Stalin regime vis a vis America’s system of constitutional governance.

But it might be a mistake to call Stalin’s reign “a failure,” per se. Certainly, it was a failure insofar as the adherence to democracy or the protection of individual rights. One can also say that aspects of Soviet policy as compared to the revolutionary goals of improving the lives of “the people” were abject failures.

But in terms of doing what Stalin and his comrades were intending to do regarding creating a state in which power was concentrated in the hands of a few? They were brutally successful at that. In fact, it was only Stalin’s death in 1953 at the age of 74 that brought an end to his proximate reign, and it was the chaotic aftermath in the wake of Stalin’s death (and the power struggle that ensued) that brought some reforms to the Soviet Union. It wasn’t any greater adherence to some kind of principle of individual rights and limited government.

Keeping in mind that the Soviet Union did have a series of “constitutions”—including one in 1924 and another in 1936, as Stalin had truly consolidated his power. While these constitutions claimed to guarantee some measure of rights (as well as outlining a series of social and economic entitlement programs), they left intact other political machinations guaranteeing one-party rule and the concentration of power in the hands of very few.

In fact, it was after the passage of the Soviet Constitution of 1936 that some of the bloodiest, most-horrifying years of Stalin’s reign began. The so-called Great Purge not only swept up millions of innocents, it also swept up many of the architects of the 1936 Constitution itself!

Two of the most-basic differences between our constitutional system and the Soviet system are the adherence to basic concepts of due process rights, as well as the assurance of open debate and the protection of dissenting views. The denial of both within the Soviet Union allowed for the government to use the military and secret police to brutally repress conflicting views as well as killing and imprisoning millions more in both secret prisons as well as a system of forced-labor prisons known as the “Gulag.”

The head of the secret police under Stalin, Lavrentiy Beria, was noted for saying, “Show me the man and I’ll show you the crime.”

In other words, we don’t need due process or a rule of law. If we want to arrest someone or otherwise suppress dissent, we can simply make them disappear by accusing them of a crime, and because we don’t need to actually prove that crime, they can be taken away.

It is worth noting that two American socialist activists, John Reed and Emma Goldman, both of whom were eager supporters of the 1917 Revolution (and were attempting to bring similar revolutionary fervor to the United States), became privately disillusioned with the direction of the post-Soviet era under first Lenin and then Stalin—most notably because of the lack of democracy in practice and the suppression of dissent.

Under the American system, power is diffused, checked and balanced.  Under the Soviet system, especially under Stalin, power is concentrated—and the politics of the CPSU (Communist Party Soviet Union) ran through every element of daily life, with the Politburo (a central committee of the highest-ranking members of “The Party”) making policy and dictating that policy through the ranks of the Soviet bureaucracy.

Setting aside the secret police, at the time known as the NKVD (and later the KGB), the politics of communism (and adherence to party doctrine) also played a role in military command.

Under our system, the military is meant to be entirely free from the political machinery of our system—our military personnel are supposed to advance on their own merit, the military is an instrument of policy, and the guidance of that policy is balanced between the legislative and executive branches. The President is Commander-in-Chief, but only Congress can declare war, for instance.

During the Soviet era, not only was the military largely under the direction of the Premier (the Soviet leader, also known as the General Secretary) and the Politburo, but each individual unit was given a “political officer,” known as a “Zampolit,” who would ensure that Marxist-Leninist dogma was injected into military affairs, as well as recommend advancement or punishment for military members depending on their adherence to that dogma.

It is also worth noting that the abuse of power by the NKVD and the interference by the Politburo in military affairs led to Field Marshal Gregoriy Zhukov’s support of Nikita Khrushchev in his bid for power following Stalin’s death, since Zhukov was deeply concerned for what might happen should Beria, the head of the secret police, gain greater power under Stalin’s successor, Georgy Malenkov.

In the end, it is not only our Constitution, but the perspective in how we approach government and governance in the United States, that fundamentally sets us apart from any communist or socialist system—whether under Stalin or Krushchev or Brezhnev, or in Maoist China or Castro’s Cuba or North Korea led by a Kim.

We approach governance from the perspective that rights are naturally occurring in man and that power flows from the citizenry to the government, whose powers are carefully enumerated and tightly constrained. These other systems believe that government grants rights to their citizens, and that absent action by that citizenry, it is assumed that the government retains all power to act.

There were no checks on power in Stalin’s USSR—millions died or suffered as a result of it.

Andrew Langer is President of the Institute for Liberty, as well as Chairman and Founder of the Institute for Regulatory Analysis and Engagement. IFL is a non-profit advocacy organization focused on advancing free-market and limited government principles into public policy at all levels. IRAE is a non-profit academic and activist organization whose mission is to examine regulations and regulatory proposals, assess their economic and societal impacts, and offer expert commentary in order to create better public policies. Andrew has been involved in free-market and limited-government causes for more than 25 years, has testified before Congress nearly two dozen times, spoken to audiences across the United States, and has taught at the collegiate level.

A globally-recognized expert on the impact of regulation on business, Andrew is regularly called on to offer innovative solutions to the challenges of squaring public policy priorities with the impact and efficacy of those policies, as well as their unintended consequences. Prior to becoming President of IFL and founding IRAE, he was the principal regulatory affairs lobbyist for the National Federation of Independent Business, the nation’s largest small business association. As President of the Institute for Liberty, he became recognized as an 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.

Andrew has had an extensive career in media—having appeared on television programs around the world. From 2017 to 2021, he hosted a highly-rated weekly program on WBAL NewsRadio 1090 in Baltimore (as well as serving as their principal fill-in host from 2011 until 2021), and has filled in for both nationally-syndicated and satellite radio programs. He also created and hosted several different podcasts—currently hosting Andrew and Jerry Save The World, with long-time colleague, Jerry Rogers.

He holds a Master’s Degree in Public Administration from Troy University and his degree from William & Mary is in International Relations.

 

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From Liberty To Suppressed Dissent: Founders on Empowered Armed Forces While Preventing a Stalin-type Military Regime in America

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Guest Essayist: Andrew Langer
Interior, Gulag Museum in Moscow, used during the Great Purge under Joseph Stalin’s reign killing millions of innocents.


The reign of Joseph Stalin as the leader of the Soviet Union from 1922 until his death in 1953 made real just about every fear the Federalists and Anti-federalists discussed regarding concentrated power and government run amok during the debates over the adoption and ratification of the United States Constitution.

Through the entirety of the Federalist Papers, Alexander Hamilton, James Madison, and John Jay were constantly debating the balancing of interests, and the push/pull between a central government strong enough to both defend the nation of several states and address the common needs of those states, yet not so powerful as to run roughshod over the rights of those states and the residents therein.

Interestingly enough, the fact that our Founders were able to so openly debate the nature of the early American experiments in governance is completely alien to what occurred in the post-revolutionary transition from the formerly tsarist Russia into the Soviet Union first under Vladimir Lenin and then under Stalin.

Unlike the open debates of our Founders, and the reliance on the consensus-building governance of the American political system (built, as it was, on the examples of the liberalized British system), when the Tsar was overthrown and the soviet government established in Russia, the Bolsheviks immediately set-out to remove or otherwise neutralize opposition voices and consolidate power—and did so using a combination of military power and adopted post-tsarist secret police that could use force and intimidation to back-up any effort at domination.

So while Jay, Madison, and Hamilton could agree and disagree with one another in very public discussions, and the three of them could have ongoing conversations regarding the elements of the Constitution with their allies and opponents, Stalin’s system left it up to a handful of men to, literally, dictate the course of the Soviet Union in the years (and then decades) after the Russian Revolution of 1917—and then support their decisions with either direct military force or the force of their secret police, the NKVD.

The post-Revolution Bolsheviks had outlawed alternative political parties (even alternative factions of socialism, like the “Mensheviks,” the other dominant socialist viewpoint in during the 1917 Revolution), the dissemination of information was through the central government, and a vibrant system of “informing” on ones fellow Soviet citizens was created, in which people could be arrested upon the scant denouncing of their neighbors—or because the denounced said or did something that the central government did not like.

In Federalist 46, Hamilton summed up the general fear of constitutional skeptics in the late 18th century:

“The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition… That the people and the States should, for a sufficient period of time, elect an uninterupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism.”

Interestingly enough, Madison had answered his own question earlier in Federalist 46 when he wrote:

“The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter. But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted.”

But for a nation in which power is concentrated in the hands of very few, where dissent is suppressed beyond the point of imprisonment, and where that power is undergirded with both direct military force and the anxiety produced by the specter of secret police, there is no opportunity for “plans of resistance” or any concerted correspondence.

Worse, “dissent” could take many forms—and not even have to be proved, in order for punishment to be meted out. Stalin used his military to massacre civilians and put political pressure on Soviet republics and non-republic satellite states. And between Stalin and the head of the NKVD (the Secret Police), Lavrentiy Beria, millions more were simply “disappeared.” Beria is famous for the quote, “Show me the man and I’ll show you the crime,” a statement that will be discussed in the essay on Stalin and the protections guaranteed in the U.S. Constitution.

The Founders were rightly skeptical of what could happen when government power was not hemmed in by lawful constraints—and what happens when people are not able to debate and exercise true dissent. The warnings debated in the Federalist Papers were made manifest in the brutality of the Soviet Union’s Stalinist era and, frankly, through the oppressions of Nikita Khrushchev and Leonid Brezhnev, and other socialist leaders.

Andrew Langer is President of the Institute for Liberty, as well as Chairman and Founder of the Institute for Regulatory Analysis and Engagement. IFL is a non-profit advocacy organization focused on advancing free-market and limited government principles into public policy at all levels. IRAE is a non-profit academic and activist organization whose mission is to examine regulations and regulatory proposals, assess their economic and societal impacts, and offer expert commentary in order to create better public policies. Andrew has been involved in free-market and limited-government causes for more than 25 years, has testified before Congress nearly two dozen times, spoken to audiences across the United States, and has taught at the collegiate level.

A globally-recognized expert on the impact of regulation on business, Andrew is regularly called on to offer innovative solutions to the challenges of squaring public policy priorities with the impact and efficacy of those policies, as well as their unintended consequences. Prior to becoming President of IFL and founding IRAE, he was the principal regulatory affairs lobbyist for the National Federation of Independent Business, the nation’s largest small business association. As President of the Institute for Liberty, he became recognized as an 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.

Andrew has had an extensive career in media—having appeared on television programs around the world. From 2017 to 2021, he hosted a highly-rated weekly program on WBAL NewsRadio 1090 in Baltimore (as well as serving as their principal fill-in host from 2011 until 2021), and has filled in for both nationally-syndicated and satellite radio programs. He also created and hosted several different podcasts—currently hosting Andrew and Jerry Save The World, with long-time colleague, Jerry Rogers.

He holds a Master’s Degree in Public Administration from Troy University and his degree from William & Mary is in International Relations.

 

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Founding Tradition of U.S. Armed Forces Protecting Liberty and Prosperity vs. Joseph Stalin’s Military Regime

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Guest Essayist: J. Eric Wise
Joseph Stalin in 1920.https://en.wikipedia.org/wiki/Joseph_Stalin#/media/File:Stalin_1920-1.jpg


The Red Army from the time of its formation through its incarnation as the Soviet Army and to the time of its collapse was forever fighting wars. From 1917 to 1922 the Red Army fought numerous civil wars for Soviet dominance of Russia, as well as the Polish-Soviet War to mop up the residual Polish state following the First World War.

But by 1922, the Soviet communists realized that a large army taxed the ambitions of the new Soviet state and so reduced the Red Army to a standing army of 800,000.

Leader of the Soviet Union, Joseph Stalin, would take this small army and build it to a strength of 29 million at the end of the Second World War. This massive army would after the Second World War become the Soviet Army which would be reduced to a leaner 11 million man army.

As the burden of maintaining a large land army grew, the Soviet Army shrunk to between 2.8 and 5.3 million. The final collapse of the Soviet Union occurred when the cost to the people of the Soviet Union of maintaining and equipping this army left them without consumer goods and in some cases necessities.

What is the key lesson of Stalin’s expansion of the military?

The first lesson, one supposes, is that war is not merely an instrument of the state but an instrument of the military. Stalin’s Soviet Union was perpetually at war. The Red Army battled Ukrainian insurgents, and was involved in the Spanish Civil War, the war in China, and fought with Japan. Before joining the Allies in the Second World War, the Soviet Army invaded Poland, partitioning it with Germany, and invaded Finland, with worse than mixed results. By the time of the German invasion of Operation Barbarossa, the Red Army was 6,000,000 men or more of whom a majority of whom were captured or killed by the invading army. The Red Army and then the Soviet Army served as a base of power for Soviet tyranny. And war was a means for the Red Army and the Soviet Army to demonstrate their importance to tyrannical power.

What can we as Americans learn from it?

Following the First World War, the United States promptly de-mobilized. The material prepared for war was scrapped and the United States Army was quickly reduced to a small corps of officers and enlisted men around which a larger army of citizen soldiers could later be built.

When the Second World War arrived, on December 7, 1941, the United States Armed forces numbered about 1.8 million. Four years later, in at the end of the war in 1945, the United States armed forces numbered approximately 12 million.

Following the Second World War, the United States armed forces were again demobilized, and by 1950 the core strength of the United States Army was about 600,000 men. With mobilization for the Korean War and the Vietnam War the armed forces of the United States numbered between 2.6 and 3.5 million. And following the Cold War the United States armed forces came down in strength to about 1.5 million men, the level it has remained for almost three decades.

President Dwight Eisenhower warned in his farewell address of a growing “Military-Industrial Complex” which threatened the liberties and prosperity of Americans. He meant that the military and the industries that supplied it had become their own interest group in American politics. The military and the industries supporting it promoted policies, and yes, wars, which served the interest of the military and the interests of power.

Abraham Lincoln, in his Lyceum Address, noted that “We find ourselves in the peaceful possession, of the fairest portion of the earth, as regards extent of territory…” He meant, among other things, that the United States is blessed to have a territory protected by two oceans and to have very little in the way of neighboring military threats.

It was this territorial advantage, as was noted in Federalist 29, which allowed the United States unlike European powers, to dispense with standing armies.

It is important to take pride in the patriots that serve our country in uniform. It is equally important to not conflate that pride with an empty nationalism that needlessly feeds a large military, a lesson Joseph Stalin teaches us.

Eric Wise is a partner in the law firm of Alston & Bird.

 

 

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Founding Guard Against an Unchecked American Executive: World War I and Constraints by the U.S. Constitution on Presidential Powers

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Guest Essayist: Stephen Tootle
Men of US 64th Regiment, 7th Infantry Division, celebrate the news of the Armistice, 11 November 1918.https://en.wikipedia.org/wiki/United_States_in_World_War_I#/media/File:US_64th_regiment_celebrate_the_Armistice.jpg


World War I, known as the “Great War” by contemporaries, tested whether a Constitution written in the 18th century could handle problems presented by the 20th. President Woodrow Wilson found himself frustrated by the constraints put upon him by the Founders—just as the Founders intended. By limiting the powers of the executive branch and creating structures rooted in pluralism, the foundational wisdom baked into the United States Constitution limited President Woodrow Wilson’s attempts to undermine and undo our political, diplomatic, and constitutional traditions. Although the executive branch has broad authority in foreign policy and during wartime, its powers are not limitless. Those constitutional limits became even more important when a war was global in scope and America had a President who resisted them.

President Wilson came into the presidency hostile to the idea of enacting the Constitution as written or intended.[1] Unlike any previous President (save perhaps Andrew Jackson when grumpy), Wilson believed that the only limit on presidential power was “his capacity” and that his control of foreign policy was “absolute.”[2] After his election in 1912, he could test those theories in earnest. When the Great War began in 1914, Wilson thought he had discovered a way to use the war to transform the world for the better.

According to Wilson, all wars could be prevented with a world association to protect borders, ensure government control of arms manufacturing, and prevent aggressive war for territorial gain.[3] Believing that he could create world peace, Wilson stretched his constitutional wartime powers to their limits. His administration imprisoned political opponents, censored authors, closed newspapers, commandeered whole sectors of the industrial and agricultural economy, and planned for a future peace agreement at odds with our history, politics, culture, and Constitution.

Wilson’s plan (according to him) required the mandate of the American people in the 1918 congressional elections. With that in mind, he explicitly attacked his opponents and asked Americans to “sustain” him and “say so in a way which it will not be possible to misunderstand.”[4] They answered, but their answer did not sustain him. Republicans took both houses of congress.

Undaunted by this rejection, Wilson negotiated the Treaty of Versailles and went to the Senate for its ratification. Congressional hearings revealed the unworkability and radicalism of the treaty. Americans had some common-sense questions about ditching their traditions. Would Americans be obligated to automatically fight and die in wars anywhere and everywhere to protect any border? Would the people and Congress no longer have a say in the declaration of war? Would foreign nations have sovereign authority over American foreign policy? Could foreign nations preclude the United States from maintaining military preparedness or anticipating threats? Would an international body interfere with the individual rights of Americans? As in any debate, good points mixed with frivolous and absurd ones as the politicians with varying interests delayed ratification. The treaty may have been ratified if Wilson had consented to protecting the Constitution, but he would not.  Wilson had said he would “consent to nothing” and that “the Senate must take its medicine.”[5] But that was simply not the case. Under the Constitution, the Senate would have its say.

President Wilson could command armies and negotiate the peace treaty, but the Constitution and its adherents ensured that he could not rule as a king or a dictator. The legislature—reflecting the conflicting interests and passions of the American people—used their constitutional powers to prevent Wilson from enacting his plans. In his last days in office Wilson lamented, “Men thought I had all the power. Would to God I had such power.”[6]

Modern readers may recoil at the abuses of the Wilson administration during the war, but someone with a broader global perspective should understand that the proper question should be, “Why were they not worse?” The pluralism inherent in our Constitution does not prevent evil from existing in the world—doing so would require

abolishing freedom– but it does check the spread of evils. Would-be dictators claiming the righteousness of their causes will always claim it is worth it to sacrifice our commitment to pluralism in the service of a grand solution to a grand problem. Our Founders understood that perfection in governance is an impossibility, but as Wilson’s example shows, even the would-be dictators can have their abuses limited. Despite Wilson’s machinations to the contrary, the Constitution limited his ambitions and left the United States standing firmly on its old foundation while the Old World Order collapsed.

Stephen Tootle is a Professor of History at the College of the Sequoias in Visalia, California and Honored Visiting Graduate Faculty in History and Government at Ashland University in Ashland, Ohio. His writings have appeared in National Review, Presidential Studies Quarterly, The Claremont Review of Books, The Journal of the Gilded Age and Progressive Era, and other publications. He gives talks on politics and political history for the Ashbrook Center and the Bill of Rights Institute and is the co-host of The Paper Trail Podcast, a weekly public affairs podcast published by the Sun-Gazette.

[1] https://teachingamericanhistory.org/document/the-new-freedom/

[2] https://nationalsecurity.gmu.edu/wp-content/uploads/2019/03/Constitutional-Government-Chapter-III_-The-President-of-the-United-States.pdf

[3] Walter McDougall, Promised Land, Crusader State: The American Encounter with the World Since 1776, (Boston: Houghton Mifflin Company, 1997), 132.

[4] Woodrow Wilson, in John Morton Blum, Woodrow Wilson and the Politics of Morality, (Boston: Little, Brown and Company, 1956), 154-155.

[5] McDougall, 142.

[6] McDougall, 145.

 

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Foresight on Consequences of World War I: America’s Founding Proposal for a Constitution To Unite the States

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Guest Essayist: Thomas Bruscino
Yugoslav monitor Sava, Austro-Hungarian Navy, SMS Bodrog. She fired the first shots of World War I, 29 July 1914 when she and two other monitors shelled Serbian defenses near Belgrade.https://en.wikipedia.org/wiki/Yugoslav_monitor_Sava#/media/File:SS_Bodrog_1914.jpg


Federalist Papers 6 and 7 are at first glance an odd place to go when it comes to explaining the onset of World War I. Their topic is the threat of internal war among the states absent the adoption of the unified federal republic in the Constitution. But the fundamental principles expressed, especially that the “causes of hostility among nations are innumerable,” will resonate with generations of World War I students who have tried to catalogue the many causes of the Great War.

Publius’s point is that independent states will disagree about much and eventually fight over something. That was especially true in the semi-united states, with their close proximity to one another, the unclaimed and disputed lands to the west, their uneven economic power, and their shared and unshared debts. What is worse, in order to get an advantage in these disagreements, the states might enter into smaller alliances with each other or with European powers, thus becoming “prey to the artifices and machinations of powers equally the enemies of them all.”

Even the broadly democratic and commercial nature of the states would not help, despite the claims of “visionary or designing men, who stand ready to advocate the paradox of perpetual peace between the States, though dismembered and alienated from each other. The genius of republics (say they) is pacific; the spirit of commerce has a tendency to soften the manners of men, and to extinguish those inflammable humors which have so often kindled into wars. Commercial republics, like ours, will never be disposed to waste themselves in ruinous contentions with each other. They will be governed by mutual interest, and will cultivate a spirit of mutual amity and concord.”

If true, asserts Publius, then that should be true of all states, not just republics. But it wasn’t true. “Has it not, on the contrary, invariably been found that momentary passions, and immediate interest, have a more active and imperious control over human conduct than general or remote considerations of policy, utility or justice?”

There they are in Federalists 6 and 7, the many causes of the Great War laid out in principle: security and proximity, economic competition, domestic politics, imperial rivalries, confusing alliance politics, and honor and passion (in monarchies and democracies alike). Publius even anticipated and rejected the arguments of people like Ivan Bloch and Norman Angell that rational calculations about the destructiveness of warfare, especially in the interconnected modern economic world, would or should forestall war.

Given these great truths, Publius argued that the best hope for stopping war among the American states was to unite them under the proposed federal constitution. It did not always work—rebels literally drew states into a war against the nation. But it mostly worked. The overwhelming majority of the disputes among American states have not led to war.

Which leads to another question: was the proposed solution viable for the rest of the world’s nations? Did they just need to be gathered together in some sort of “Confederative Republic” to ensure peace?

In principle, maybe, and the principle is as far as Publius goes for the wider world. The Federalist Papers focused on the principles behind the best government for the United States, and on this issue they weren’t even sure the federal republic would work, let alone for the far more divided wider world. The Constitutional system Publius proposed was exceedingly fragile. That is why the principles elucidated in the rest of the Federalist Papers went far beyond the causes of war between states.

Perhaps that truth best resolves the seeming paradox of how Woodrow Wilson, an explicit critic of the Constitutional system, came to advocate for a seemingly Publius-like worldwide “Confederative Republic” in the League of Nations. Wilson wanted lasting peace among nations, and he believed that it was only possible if nations gathered together under a cooperative worldwide government of sorts. On its face, it appears that Wilson agreed with the principles of the Federalist Papers, but only on this narrow issue. But the Founders believed that the American Constitutional Republic only had a chance of preserving peace among the states if all of the principles undergirding it, those expressed across the Federalist Papers, remained in place.

Which brings us to Federalists 74 and 75, on the treaty making power of the president under the Constitution. For reasons explained in those documents, the executive needed a strong role in making treaties. As is often the case in the Federalist Papers, Publius argued for more expansive federal, and in this case, executive, power. But that was only because the countering argument gave exclusive power to the legislature. Publius never imagined that treaty making, or any other power, would go exclusively to the executive. There must be balance, or the whole fragile experiment would collapse.

This balancing principle, so essential to the Federalist Papers and the Constitution, Wilson could never abide. He wanted the power for himself. In this instance above all others, his reach exceeded his grasp. The Senate did not approve his treaty. The United States never entered the League.

The American decision to reject the League has been treated as a missed opportunity to preserve the fragile peace earned at Versailles. But Wilson was the master of his vision’s undoing, precisely because in envisioning the League he rejected the principles of the Federalist Papers. His League was not a balanced constitutional republic, but rather an oligarchy with the trappings of democracy, requiring the enlightened leadership of a few great men. First among those men, of course, would be Woodrow Wilson himself.

The League of Nations never had a chance to maintain peace, not because the United States foolishly rejected Wilson’s new utopian vision, but because the balanced American constitutional system saw it for what it was: an unbalanced system simultaneously so offensive to sovereign states and utterly toothless as to magnify all the worst rivalries among nations. It was the Old World Order made worse, with monarchies replaced by totalitarian dictatorships. Publius, in all of the Federalist Papers, knew better than to try that. Would that Woodrow Wilson have listened.

Thomas Bruscino is Associate Professor of History in the Department of Military Strategy, Planning, and Operations at the United States Army War College. He holds a Ph.D. in military history from Ohio University and has been a historian at the US Army Center of Military History in Washington, DC and the US Army Combat Studies Institute at Fort Leavenworth, and a professor at the US Army School of Advanced Military Studies. He is the author of A Nation Forged in War: How World War II Taught Americans to Get Along(University of Tennessee Press, 2010), and Out of Bounds: Transnational Sanctuary in Irregular Warfare (CSI Press, 2006), and numerous book chapters. His writings have appeared in the Claremont Review of Books, Army History, The New Criterion, Military Review, The Journal of Military History, White House Studies, War & Society, War in History, The Journal of America’s Military Past, Infinity Journal, Doublethink, Reviews in American History, Joint Force Quarterly, and Parameters.

The views and opinions presented are those of the authors and do not necessarily represent those of the U.S. Army War College, the U.S. Army, or the Department of Defense.

 

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World War I and Commercial Rivalries: The American Founders on Solving Trade Disputes Threatening the Union

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Guest Essayist: Joerg Knipprath
Domenica del Corriere, Italian newspaper, drawing by Achille Beltrame depicting Gavrilo Princip assassination of Archduke Franz Ferdinand of Austria & his wife Sofie, in Sarajevo, Bosnia, June 28, 1914.


Supporters of the proposed United States Constitution of 1787 frequently warned that there was no mechanism under the Articles of Confederation to prevent what they saw as the inevitable commercial rivalries between the states from escalating into armed conflict. Such rivalries had begun to appear through protectionist trade laws enacted by various states. Another event was the dispute between Virginia and Maryland over fishing and navigation in Chesapeake Bay and the Potomac River. The end, the Federalists charged, would surely be the dissolution of the union into some number of quarreling confederations.

The Anti-federalists had several responses. First, Number IX of the Articles authorized Congress, on petition by any state, to provide for the appointment of a court to resolve any conflict between that state and another. Second, they pointed to the Mount Vernon Conference of 1785 which had settled those very divisive claims between Virginia and Maryland. Third, they declared that it was fanciful to claim that republics, especially those with commercial relations as close as those within the Confederation, would go to war with each other. The history of republics wagered against such eventualities, they asserted. As William Grayson, a moderate opponent of the Constitution, put forth at length before the Virginia ratifying convention, the states were bound by mutually reinforcing commercial bonds and interests. He sarcastically described the Federalists’ panicky and hyperbolic claims as predicting that Pennsylvania and Maryland would attack like Goths and Vandals of old, and that “the Carolinians, from the south, (mounted on alligators, I presume), are to come and destroy our cornfields, and eat up our little children!” Such specters were “ludicrous in the extreme.” Others repeated Grayson’s contentions even more forcefully, often combined with sneering attacks on the writers of The Federalist.

Alexander Hamilton, among others, rejected Grayson’s dismissal of the danger. In essay No. 6 of The Federalist, he asserted that immediate national interests, including economic advantage, are more likely to precipitate war than more general and remote objects, such as justice or dominion. He asked rhetorically,

“Have republics in practice been less addicted to war than monarchies?…Are not popular assemblies frequently subject to the impulses of rage , resentment, jealousy, avarice, and of other irregular and violent propensities?…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 and glory? Have there not been as many wars founded upon commercial motives, since that has become the prevailing system of nations, as were before occasioned by the cupidity of territory or dominion?”

It was as to these questions that Hamilton invoked the guide of experience for answers.

That experience he found in the history of Sparta, Athens, Rome, and Carthage. All of them he classified as republics, the last two as commercial republics. He detailed the numerous ruinous wars in which they engaged. Moving forward in time, he then indicted the commercial republic of Venice for its wars in Italy and the 17th-century commercial Dutch Republic for its wars with England and France. Britain came in for scorn as particularly bellicose for commercial advantage. Worse yet, Hamilton charged, the king was at times dragged into wars he did not want, by “the cries of the nation and importunities of their representatives,” so that there have been “almost as many popular as royal wars.” He singled out wars for commercial advantage between Britain and France and Britain and Spain. One of those wars between Britain and France overthrew a network of alliances which had been made two decades earlier. He acidly asked, “Is it not time to awake from the deceitful dream of a golden age, and to adopt as a practical maxim for the direction of our political conduct, that we, as well as the other inhabitants of the globe, are yet remote from the happy empire of perfect wisdom and perfect virtue?”

In addition to commercial incentives for war, Hamilton pointed to personal motives of rulers and other prominent individuals, or to intrigues hatched by influential advisers, as prompting wars between republics. Thus he blamed the Peloponnesian War, so disastrous to Athens, on the personal motives of the great statesman Pericles. England’s ill-advised war with France Hamilton assigned to the machinations of Henry VIII’s chief minister, Cardinal Wolsey, and his pursuit of political influence.

Whatever the merits of Hamilton’s predictably slanted analysis of specific historical events, his message was that political theory disproved by experience is not a sound basis for public policy. A more recent scenario which fit his skepticism about pacific republics was the Great War from 1914 to 1918, which led to the collapse of the 19th-century European political order and to revolutionary political and social change. The antagonists were the Central Powers of Germany, Austria-Hungary, and Ottoman Turkey against the Triple Entente of Britain, France, and Russia. The latter group was eventually joined by Italy, Japan, and the United States. Of the major participants, Germany, Britain, France, and the United States were commercial and industrial powerhouses. They were also outright republics or had sufficient political power vested in parliamentary bodies to qualify as quasi-republican constitutional monarchies. Each also had substantial overseas territories, Britain by far the most. Of the rest, Russia and Japan were rising industrial and commercial nations. In particular, Germany and Britain had considerable commercial interaction, but it likely was exactly that commercial and colonial competition which the British saw as a threat. The prewar German naval buildup did nothing to calm British nerves.

There was also a complicated system of alliances which emerged shortly before the war. This reshuffling of international arrangements changed the dynamics of the relatively stable post-Napoleonic international order in Europe which had even survived disruptive processes of unification in Germany and Italy and disunion in the old Austrian Empire. True, there had been revolutionary tremors and limited wars, such as between Prussia and Denmark, and Prussia and Austria, and the Franco-Prussian War of 1870-71. Skillful diplomacy, in particular by the German Chancellor Otto von Bismarck, had prevented any conflict of an existential nature from arising. Bismarck had isolated France after 1871 through alliances with Russia, Austria-Hungary, and Italy, first through the Three Emperors’ League, and then through the Triple Alliance of 1882 and the Reinsurance Treaty of 1887. Relations with Britain were preserved through family relationships and Britain’s preoccupation with her empire overseas. He had also smoothed frictions between the rival empires, Russia and Austria-Hungary, through the Congress of Berlin in 1878, and among various colonial powers through a conference in the same city in 1884.

Even after Bismarck was forced out of office, it appeared that strengthened international legal norms would prevent wars. International arbitrations settled disputes. Two Hague Conventions, the London Naval Conference of 1909, and the London Conference of 1912 convinced “the right kinds” of Europeans that large-scale war was anachronistic. The foreign offices of the various governments, staffed with forward-looking and educated internationalists, surely would extend the great-power stability of the 19th century’s Concert of Europe. Ignored was that these multinational conferences and conventions left some number of participants dissatisfied and nursing grudges. This was particularly true for the Balkan countries. While trying to establish their independence from the crumbling Ottoman Empire, they warred with the Turks, the Austro-Hungarians, and each other and resented their fates being controlled by larger powers. Over time, these perceived affronts to national honor during a time of heightened national consciousness overrode the rational self-interest served by commercial considerations. Moreover, various treaties and diplomatic agreements overlapped and indeed conflicted with each other. Alliances increasingly shifted around, which begot international uncertainty during an age of domestic demographic changes, increasing political militancy, and unequal industrial and technological prowess.

This new system of alliances had another potentially destabilizing element. It allowed the relatively weaker participants to act like big players on the international stage, counting on their more powerful allies to back them up. Instead, the bravado and exaggerated sense of national honor of less important states dragged the major powers into a disastrous conflict. Everything changed when a Bosnian Serb nationalist, supported by secret nationalist societies and Serbian military intelligence, assassinated the reform-minded presumptive heir to the Austrian throne, Archduke Franz Ferdinand, and his wife in Sarajevo, Bosnia, on June 28, 1914.

After some delay, during which it was hoped that the assassination might become just another deplorable act that would result in an appropriate punishment for the captured perpetrators, the Austrians responded. Having received some halting assurances from the German government that they would back Austria-Hungary’s response to Serbia, the Austrians sent an ultimatum to the Serbs. Serbia only partially accepted the Austrian demands, mobilized its army, and briefly sent troops into Austro-Hungarian territory. In quick response, Austria began partial mobilization of its army and, on July 28, 1914, declared war on Serbia.

At this stage, the conflict might yet have become another limited skirmish. But the Russian government, some of whose ministers had been informed of the plot ahead of time and whose military intelligence likely helped the plotters, had promised the Serbs that Russia would come to Serbia’s aid against any attack by Austria-Hungary. When Austria-Hungary began partial mobilization, Russia within two days ordered full mobilization of its forces. Fearing the large number of Russian troops, Austria-Hungary in turn mobilized fully. Germany, coming to her ally’s assistance, did likewise on July 31, 1914. At the same time, Germany issued a demand of neutrality to Russia. When Russia failed to acquiesce, a state of war existed on August 1. France, pursuant to a treaty with Russia from 1892, had rejected German demands for neutrality and had ordered a general mobilization the previous day. On August 3, 1914, Germany declared war on France. Britain, pursuant to her treaty obligations to France under the Triple Entente of 1907, declared war on Germany on August 5, 1914, after the latter ignored Britain’s demands for withdrawal from occupied Belgium. Italy, as was her wont during 20th-century wars, initially refused to stand by her treaty obligations to Germany and Austria-Hungary and eventually switched sides to the Entente.

The war took on a dynamic of its own. Occasional peace feelers went nowhere, in part because of objections by military leaders. There was, however, another equally significant hurdle, namely, political opposition based on the respective publics’ sentiments that their sacrifices demanded something more than a muddled armistice. It must be remembered that the war initially was very popular and welcomed with an almost giddy celebration of patriotic zeal by the citizenry of the combatants. Hamilton’s observation about monarchs having “continued wars, contrary to their inclinations, and sometimes contrary to the real interests of the state” due to public pressure, was being realized.

The Great War, infelicitously dubbed “the war to end all wars,” ended in the collapse of the Ottoman, Russian, German, and Austro-Hungarian monarchies. It also severely damaged the British and French empires around the world. The revolutionary chaos it unleashed and the national resentments its end ignited soon produced totalitarian movements and another world war. The tens of millions killed in those wars and the even higher number murdered by those ideological totalitarian regimes during the 20th century are a grisly monument to man’s potential to do evil, often cheerfully. The war should have put paid to the conceit that the world of human self-interest and passion can be readily subordinated to a legal artifice designed by a cadre of internationalists. Such idealism sounds marvelous in a university faculty lounge or in a graduate seminar in international relations, but, as Margaret Thatcher observed, “The facts of life are conservative.”

As fundamental challenges to the post-World War II United States-led international order have arisen over the past two decades, much debate has erupted over what system will replace it. The current conflict in Europe has once again tested the notion that commercial relations will make war obsolete. Russia has been dissuaded neither by Western economic pressures and commercial ostracism nor the military aid by NATO to Ukraine from taking a course of action which her government and people see, rightly or wrongly, as important to their national identity. One hopes that these broader fundamental geopolitical changes, such as the apparent emergence of a multi-polar international order, do not lead to the type of destruction World War I caused a century ago. But such hopes must rest on diplomacy based on experience, not on smug nostrums about pacific republics or the bonds of commerce.

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

 

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Constitution Framers, the American Civil War, and Preserving the Union Through Compromise, Virtue and Statesmanship

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Guest Essayist: Samuel Postell
First Confederate imprint defining moment the first southern state, SC, formally seceded from the U.S. Charleston Mercury, Dec. 20, 1860https://en.wikipedia.org/wiki/American_Civil_War#/media/File:Charleston_Mercury_Secession_Broadside,_1860.jpg


The United States Constitution created many precautions against disunion and faction, but did not provide a failsafe solution; throughout the antebellum period statesmanship, compromise, and institutional development secured union until slavery and secession shattered the union.

As was argued in the last essay, the framers embraced the principle of union and framed a representative system to combat faction and disunion. As the Anti-federalists became increasingly weak after the ratification of the Constitution, Washington’s administration pursued policies to bolster union.

The Constitution created institutions meant to draw the country together and to prevent factions from controlling governmental power as was done under the Articles of Confederation. Publius argued that the Constitution embraced a number of improvements from modern political science to perfect republican government and cement union. The tools from modern political science were enumerated in Federalist 9:

a. The regular distribution of power into distinct departments.

b. the introduction of legislative balances and checks.

c. the institution of courts composed of judges holding their offices during good behavior.

d. the representation of the people in the legislature by deputies of their own election.

e. the ENLARGEMENT of the ORBIT within which such systems are to revolve, either in respect to the dimensions of a single State or to the consolidation of several smaller States into one great Confederacy.

However, Publius argued that there were further Constitutional precautions to retain the “excellencies of republican government” and “lessen or avoid” its imperfections. Throughout The Federalist, Publius explains additional precautions woven into the constitutional structure. He points to “auxiliary precautions” to act as a sort of safety net to ensure that the violence of faction is limited if it penetrates any branch of the federal government. The term “auxiliary precautions” echoes an earlier formulation in James Madison’s essay Vices of our Political System written at the behest of George Washington before the Federal Convention. In that essay, Madison argues that the Articles allowed minority factions to overrun the state governments. The essay made the distinction between the great desideratum[1] (creating a sovereign neutral and powerful enough to stop injustice without becoming tyrannical) and the auxiliary desideratum (getting the noblest characters to be elected, rule, and act according to proper motives). Thus, the most important object of the Constitution is the creation of an impartial and limited federal government to secure rights, and a secondary object is to ensure that the system is administered by virtuous citizens. Although Madison argued that creating a limited impartial government was fundamental, the framers believed that no free government could be maintained without proper administration from good rulers. The auxiliary precautions of the Constitution attempt to mitigate the harm that a faction might inflict if it gains power.

As was argued in the last essay, an important aspect of securing an impartial government is distributing and maintaining the partitions of power, which requires that weak branches be fortified and strong branches be weakened. When Publius considers the branch that most needs fortified against, he settles upon the legislative because it was often the legislatures that dominated the state governments under the Articles. In Federalist 48, he arrives at the conclusion that “in a representative republic, where the executive magistracy is carefully limited both in the extent and duration of its power; and where the legislative power is exercised by an assembly, which is inspired by a supposed influence over the people with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude; yet not so numerous as to be incapable of pursuing the objects of its passions, by means which reason prescribes; it is against the enterprising ambition of this department, that the people ought to indulge all their jealousy and exhaust all their precautions.” Notice the similarity between Publius’ description of a legislature in Federalist 48 and a faction in Federalist 10. A legislature has a “supposed influence over the people,” it is a joint assembly which gives it the convenience of “concert,” it is numerous and can become impassioned through proceedings, yet it is small enough to make plans to “approach its passion.” In other words, the legislature gives a faction the power to exact its designs if it can properly organize itself. Publius therefore sought to limit it with auxiliary precautions such as a bicameral house with short terms, staggered elections, and two relatively large bodies. Note that Publius’ assessment is almost the opposite of Alexis de Tocqueville’s, who fears a soft despot seizing executive power and capitalizing from the lack of civic virtue among the people.

Despite Publius’ fears about the legislature, throughout Washington’s first term it became clear that the legislature was too weak to organize itself and pursue an agenda; instead of driving legislation, it looked to the president. For instance, in 1791 Congress called upon Secretary of Treasury Alexander Hamilton to help frame economic legislation. The House spent several days debating the propriety of considering Hamilton’s economic plans but did not bother drafting or proposing any of its own. The numerous House of Representatives was so unorganized and heterogeneous that it was not capable of creating any bills to put on the floor for a vote. Perhaps Publius underestimated the natural strength of the legislature in large republics. Did he not understand the distinction between this federal legislature set over a large sphere and encompassing a variety of interests and the state legislatures encompassing small territories with homogenous interests under the Articles?

By Thomas Jefferson’s presidency the congress was no less dysfunctional. It was consensus that Congress was weak and it looked to the presidency or the cabinet to drive federal policy. How different was this arrangement from the oligarchies in the state legislatures Madison criticized under the Articles? How much safer were minority rights from factions under this Constitution where the executive wielded such power?

Why was the Congress so weak? President Jefferson noted that representatives “are not yet sufficiently aware of the necessity of accommodation and mutual sacrifice of opinion for conducting a numerous assembly.” An anecdote puts Jefferson’s criticism a bit more sharply: after Jefferson’s message in December of 1805 was referred to the committee of the whole, it took almost a full session to determine a single resolution. After the message was referred to the Committee of the Whole, a section on harbor defense was approved and turned to committee. The Committee on Defense determined measures, and then on January 23 the report was taken up by the Committee of the Whole. The Committee on Defense decided on a sum for harbor defense, the Committee of the Whole disagreed, then appointed a committee of two to call upon the president for more information. In February the discussion was resumed. The House passed two resolutions: one sum for harbors and one sum for gunboats. A committee was then appointed to draft a bill in accord with these resolutions. On April 15, the committee began its debate on the bill to appropriate the money for harbor defense. The process in 1805 led four different committees to discuss two resolutions for defense over the course of five months: and that was just one plank of a bill, considering one part of the president’s annual message, in just the House of Representatives! James Sterling Young notes that the biggest problem was that “Any legislator had the privilege of bringing forward, at any moment, such measures as suit his fancy; and any other legislator could postpone action on them indefinitely by the simple expedient of talking.”

In addition to institutional problems, the representatives lacked the revolutionary unity common at the time of the Founding. One representative noted, “The more I know of [two senators] the more I am impressed with the idea how unsuited they are ever to co-operate, never were two substances more completely adapted to make each other explode.” On one hand a New England representative claimed of his Southern colleagues that they were “accustomed to speak in the tone of masters” and that the Westerners had “a license of tongue incident to a wild and uncultivated state of society. With men of such states of mind and temperament, men educated in New England could have little pleasure in intercourse, less in controversy, and of course no sympathy.” A Southern representative remarked of his New England colleagues that “not one possesses the slightest tie of common interest or of common feeling with us.” In addition to feelings of discord, there were physical altercations brought about by the pains of living in common boarding houses. An incident is recorded in Miss Shields’ house when John Randolph, “pouring out a glass of wine, dashed it in [Rep. Willis] Alston’s face. Alston sent a decanter at his head in return, and these and similar missiles continued to fly to and fro, until there was much destruction of glassware.”

How were we to call ourselves a republic if the representative branch could not govern themselves at their own tables, let alone within the chambers of Congress? In Publius’ lifetime as in our own, Congress needed to develop institutional tools to overcome its weakness and become a functional branch of government. This was necessary if the ambition of the legislature was to become sufficient to check the ambition of the executive branch and preserve our republican form of government.

Throughout the Antebellum Period, Congress developed institutional tools which allowed it to enact legislation without relying solely on the executive branch for direction. The most important institutional changes from the American Revolution through the Antebellum Period were rules, committees, coalitions, compromise, and statesmanship through oratory. Although I will not have the length to discuss each development in depth, I will cover some of the most important developments in Congress throughout the Antebellum period.

Henry Clay was the most seminal figure in developing the institutional reforms which allowed Congress to assume the role of legislative leader. On November 4, 1811, Clay was elected Speaker of the House on his first day as a member and on the first ballot. He won seventy-five votes, while William Bibb won thirty-eight, and Nathaniel Macon won three. Mary Parker Follett remarks that “Clay was elected more than any other Speaker as leader of the House. Never before and only once since has a member been distinguished with the honor of an election to the chair upon his first appearance in the House.” The caucus that met before electing Clay Speaker was clear about its intentions. One of Clay’s partisans asserted that the House was in need of a Speaker who would “bridle” John Randolph. Another member said that “he (Randolph) disregards all rules.” Another man asserted that the Speaker “must be a man who can meet John Randolph on the floor or on the field, for he may have to do both.” Clay would eventually do both. One of Randolph’s favorite tactics was to bring his hunting dogs to the chamber where he would use them to intimidate other members and cause disruptions when proceedings were not to his liking. One of Clay’s very first acts as Speaker was to institute a rule barring animals from the chamber during business. In 1826 the two men dueled after Randolph insulted Clay, but both missed their marks, and unhurt met each other halfway to shake hands (something that the two could never manage to do politically).

Clay’s early rules were a sign of his prerogative as legislative leader: he believed that the majority in Congress, elected by a majority of the people, should be equipped with the tools to govern. This principle animated him throughout his congressional career, but also required that he attain more power as Speaker to silence the minority. Mary Parker Follett claims that Clay’s leadership aimed at producing order. She writes, “The new principles set forth during Clay’s long service were: first, the increase of the Speaker’s parliamentary power; secondly, the strengthening of his personal influence; and thirdly, the establishment of his position as a legislative leader.” Clay drew criticism as he increased his power but it was also clear that he was capable of passing policies that advanced the country into the boom of the industrial revolution.

The most radical change in the House of Representatives during the antebellum period was a change that still characterizes it today: the creation of standing committees to expedite business and develop policy expertise. Between the War of 1812 and the Civil War, the House increasingly relied on standing committees to debate and amend measures. As this reliance on standing committees steadily expanded, the House’s relationship with standing committees changed: measures were first referred to committee for consideration and only after being reported by committee were they debated by the full House. This expedited the law-making process because the Committee of the Whole allowed any member to debate on any bill and delay the majority; a liberty that the minority would slowly lose through the Clay Speakership. But how much did the committee structure grow during the Antebellum period? At the time of the Founding the House of Representatives had only one standing committee and relied on ad-hoc committees. By 1810 the House had 10 standing Committees. In 1816 the Senate established 12 permanent committees. By the Civil War the House had 39 standing committees and the Senate had 22.

The new developments in Congress ensured that independents like John Randolph would play an increasingly smaller role in policy-making and that coalitions would play an increasingly greater role. Henry Clay believed in a system animated by coalitions because he believed that such a system provided the opportunity for compromise and energy within the legislature. According to Clay, a coalition-led process of deliberation and choice, as opposed to a member-centered process, meant that creating consensus and collapsing distinctions about factious issues would be more common, and policies of pressing concern would be passed expeditiously. However, in organizing the Congress Henry Clay empowered it to act more efficiently. Did this new energetic Congress exceed the limitations Publius intended for the Federal Government?

In the early 1830s John Calhoun argued that the policies enacted by the energetic Congress harmed the interests of the minority; further, he argued that the people of a state should be able to nullify a federal law if its people deemed it oppressive. He argued that the energetic Congress, passing tariffs that harmed southerners and using federal funds for roads that empowered manufacturers at the expense of farmers, had wielded unchecked power to favor Northern interests. He wrote, “The Government of the absolute majority instead of the Government of the people is but the Government of the strongest interests; and when not efficiently checked, it is the most tyrannical and oppressive that can be devised.” He argued that the state of South Carolina should be able to nullify and ignore the Federal Tariff laws on imports. However, South Carolina never nullified the federal tariff; Andrew Jackson threatened to use the army to collect tariffs and congress passed a Force Bill allowing him to do so, and Henry Clay passed a Compromise Tariff which would reduce the tariff over time to appease the state of South Carolina.

The Southerners deemed tariff laws oppressive, but nothing stoked the flames of disunion more than Congressional action upon slavery in the territories. Although South Carolina never effectively nullified the federal tariff, over the next thirty years the Southern states developed a constitutional theory of secession to combat the power of Congress which they deemed oppressive of their property rights and economic interests. In 1850, Jefferson Davis declared in the Senate, “every breeze will bring to the marauding destroyers of southern rights the warning ‘Woe, woe to the riders who trample them down!’” He argued that Congress had used its power to the detriment of Southern interests, and that they deserved extra protection for slavery or they may secede from the union. Of slavery, he argued, “This is the most delicate species of property that is held: it is the property that is ambulative; property which must be held under special laws and police regulations to render it useful and profitable to the owner.” When Abraham Lincoln was elected, Jefferson Davis argued that Lincoln’s hostility toward the expansion of slavery allowed the Southern states to secede from the union. He argued “Secession belongs to a different class of remedies. It is to be justified upon the basis that the States are Sovereign. There was a time when none denied it.”

As Dr. Eric Sands articulated for this study, in his essay on the Civil War and consequences of secession, Lincoln argued that secession was unconstitutional and threatened the principle of self-government. He argued that there could be no form of republican government if the losers of an election were free to secede in order to avoid the consequences of unpopular political beliefs. He said that the union was Perpetual; he argued that the Constitution intended that the union endure forever, and that the doctrine of secession was contrary to the most fundamental premise of the Constitution.

However, Davis and others argued that over the course of the Antebellum Period, the federal government had expanded its Constitutional power and used those powers oppressively toward the interests of the slave states. Lincoln argued that Davis was wrong; States were not sovereigns under the Constitution, and the common interests of union superseded their individual interest in the expansion of slavery and the protection of slaves as property.

Despite the philosophic differences, it is clear that as Congress lost the ability to collapse differences through virtue and statesmanship, and promote union through compromise, the union was destined to dissolve. The framers admitted that this was the case; that representative self-government relied upon a functional representative branch of government that protected and advanced the interests of citizens. Is our Congress capable of compromise, statesmanship, and advancing our common interests today? Perhaps the tools that quelled disunion throughout the Antebellum period could help solve our congressional crisis today.

Samuel Postell serves as Executive Director of The Center for Liberty and Learning at the Founders Classical Academy of Lewisville, Texas. Mr. Postell graduated from Ashland University with undergraduate degrees in Politics and English. He earned his master’s degree in Political Thought from the University of Dallas and is working on his dissertation to complete his Ph.D. Mr. Postell is writing a book on Henry Clay and legislative statesmanship, a subject about which he frequently writes and publishes. He has also conducted studies for Ballotpedia and has frequently contributed to Law and Liberty and Constituting America. At Founders Classical Academy he teaches courses on Government and Economics, and has taught courses on American Literature and Rhetoric.

[1] Desideratum is Latin, meaning “thing desired.”

 

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Key to Subverting the Violence of Faction: America’s Founding Design of the United States Constitution Against Disunion

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Guest Essayist: Samuel Postell
Abraham Lincoln, portrait, November 8, 1863 by Alexander Gardnerhttps://en.wikipedia.org/wiki/Abraham_Lincoln#/media/File:Abraham_Lincoln_O-77_matte_collodion_print.jpg


In his First Inaugural Address, Abraham Lincoln argued that “the Union is much older than the Constitution.” What did Lincoln mean when he spoke of the Union? The Declaration of Independence explains that the Americans were “one people” because they were providentially, philosophically, and hence politically united. In addition to referring to the Americans as one people, it also references the American people using the collective “We.” Furthermore, the document calls itself a “unanimous” declaration of the “united” States of America. The authors saw the separate colonies as previously united, and unanimity implied that they were “of one mind.” In short, the Declaration expressed that the Americans were one people capable of governing themselves. Because the Americans were united as one people and were arbitrarily ruled by another, the Declaration asserts that they have a duty to assert their independence by appealing to their Creator and natural laws of justice. Therefore, the principle of union, the rallying cry of Abraham Lincoln, Daniel Webster, Henry Clay, and George Washington, is one of the bedrock principles of the American founding.

Whereas the Declaration expresses the existence of unity at the time of the founding, many of the Federalist Papers contemplate the importance of a strong or firm union. For example, Federalist 9 asserts in its first line that “A FIRM Union will be of the utmost moment to the peace and liberty of the States, as a barrier against domestic faction and insurrection.” Additionally, Federalist 10 asserts that “Among the numerous advantages promised by a well-constructed union, none deserves to be more accurately developed than its tendency to break and control the violence of faction.” In other words, at the time of ratification, one of the most salutary effects of the United States Constitution was that it bolstered the existing unity between the American people and thereby combated faction and disunion. As discussed in previous essays, in Federalist 9 and 10, Publius argued that the particular kind of union created by the Constitution was the key to subverting the violence of faction, the primary vice of the political system under the Articles of Confederation.

But union was not only an important principle at the time of the signing of the Declaration and the ratification of the Constitution. The Declaration sets forth “self-evident truths” that are meant to guide the American people through time. The principles explicitly enumerated are “life, liberty, and the pursuit of happiness.” However, in Washington’s Farewell Address he emphasized the principle of “union” as that which secured the principles of the Declaration. In the Farewell Address, Washington counseled the American people: “The unity of government which constitutes you one people is also now dear to you. It is justly so; for it is a main pillar in the edifice of your real independence, the support of your tranquility at home, your peace abroad, of your safety, of your prosperity, of that very liberty which you so highly prize.” He told the people that “it is of infinite moment that you should properly estimate the immense value of your national Union to your collective and individual happiness; that you should cherish a cordial, habitual, and immovable attachment to it; accustoming yourselves to think and speak of it as of the palladium of your political safety and prosperity; watching for its preservation with jealous anxiety; discountenancing whatever may suggest even a suspicion that it can in any event be abandoned; and indignantly frowning upon the first dawning of every attempt to alienate any portion of our country from the rest, or to enfeeble the sacred ties which now link together the various parts.” In other words, Washington argued that union was the principle that secured the self-evident truths for which the Americans had fought in the Revolutionary War. According to Washington, the principle of union was necessary to secure the rights to life and liberty as well as the freedom to pursue happiness. Washington believed that if union failed, then the American experiment failed, and if the American experiment failed, then the prospect of liberty and self-government everywhere was in danger. Therefore, he urged the people to cherish the principle of union.

But why cherish union? Washington believed that patriotism and a dedication to union were necessary to preserve the blessings of the Revolution. For example, when he wrote to a society of Quakers who refused to defend the country in war, he told them that religious liberty was contingent upon the maintenance of the union. He wrote, “We have Reason to rejoice in the prospect that the present National Government, which by the favor of Divine Providence, was formed by the common Counsels, and peaceably established with the common consent of the People, will prove a blessing to every denomination of them. To render it such, my best endeavours shall not be wanting.” In the Farewell Address, Washington argued that the people ought to remain dedicated to the principle of union because “Citizens by birth or choice of a common country, that country has a right to concentrate your affections.” In other words, Washington argued that America was the common country of North, South, East coast, and unsettled West. Patriotism was a necessary virtue for men of all sections and all religious sects. Washington worried the rights for which men fought and died in the Revolution may be short lived without the virtue of patriotism and self-sacrifice for the principle of union.

Furthermore, Publius argued that the Americans were destined to become united. In Federalist 2, Publius argued that “Nothing is more certain than the indispensable necessity of Government.” But what kind of government was necessary? Publius argued that “It is well worthy of consideration therefore, whether it would conduce more to the interests of the people of America, that they should, to all general purposes, be one nation, under one federal government, than that they should divide themselves into separate confederacies, and give to each the head of each, the same kind of powers which they are advised to place in one national Government.” Publius believed that if the Constitution and the principle of union was rejected, then they would become like the “petty republics of Greece and Italy… kept in a state of perpetual vibration, between the extremes of tyranny and anarchy.” Publius foresaw that unless the Constitution be ratified and the principle of union secured, the country would become a loose confederacy like the European Union instead of a firm band of friends. Instead of creating a system of petty republics on the basis of confederacy, Publius argued that the Constitution would create a great republic on the basis of union. The Federalists argued that the constitutional union was fitting because the Americans had a common destiny, a common philosophy, and a common goal.

But why should the sections, which had different and contradictory economic interests, agree to subject themselves to a common government which would wield power? Isn’t it true that one section would, upon election, sometimes be given the opportunity to abuse their fellow country-men in different quarters, comprising different interests? Publius dealt with this problem in two ways. First, he argued that the American people were more similar than different. Second, the principle of federalism allowed the states to embrace their particular interests through state law, while allowing the federal government to legislate according to the “great and aggregate interests” of the country.

Publius argued that among the sections, the people were homogenous in their principles and character, even if they embraced different economic interests across the sections. He argued that Providence had prepared the American people for union. He wrote, “It has often given me pleasure to observe that Independent America was not composed of detached and distant territories, but that one connected, fertile, wide, spreading country was the portion of our western sons of liberty. Providence has in a particular manner blessed it with a wide variety of soils and productions, and watered it with innumerable streams for the delight and accommodation of its inhabitants.” Publius also remarked that “Providence has been pleased to give this one connected country, to one united people, a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs, and who, by their joint counsels, arms and efforts, fighting side by side throughout a long and bloody war, have nobly established their general Liberty and Independence.” In short, Publius argued that “This country and this people seem to have been made for each other.” In Federalist 2, Publius admitted that among the sections there were “slight shades of difference.” However, he argued that the common character and principles of the Americans trumped the consequential differences of economic interest across the sections. Furthermore, Publius and the Federalists believed that the American people would triumph over their differences through their common councils, given enough time.

However, Publius argued that the principle of federalism allowed for harmony in cases where the diversity of state interests clashed; by limiting the federal government to specific and enumerated purposes, the Constitution embraces the “slight shades of difference” among the states. For example, in Federalist 10, Publius makes a distinction between “local circumstances” and “national objects.” He argued that the representative must balance his attention to the local concerns of constituents and the “permanent and aggregate interests of the community.” He remarked that “the federal Constitution forms a happy combination in this respect; the great and aggregate interests being referred to the national, the local and the particular, to the state legislatures.” In other words, Publius believed that a limited government, embracing the principle of federalism, could unite American citizens in common matters while allowing the citizens of states to legislate according to their particular circumstances, habits, and interests.

But what was the alternative to union? One unpopular alternative among the Anti-federalists was the creation of a confederacy consisting of equal powers for each section of the union. In Federalist 5, Publius argued that the creation of a sectional confederacy was both impracticable and unwise. He predicted that the different sections would become jealous of the most powerful, and would scheme against their neighbors. Rather than cooperation, there would be competition between the sections. Rather than trust, there would be skepticism. Publius writes, “Distrust naturally creates distrust, and by nothing is good will and kind conduct more speedily changed, than by invidious jealousies and uncandid imputations.”

So, what was Publius’ solution to the different passions and interests that tended toward disunion? Publius’ most famous solution is the creation of the extended republic wherein the factions are multiplied, dispersed, and allowed to drown one another out. But also important is the way in which power is divided. The division of power is best explained in Federalist 51, where Publius explains that in the Constitutional system “ambition must be made to counteract ambition.” Publius first sought to quell factious differences by diminishing them through the extended sphere, but then sought to vent factious passions through the system of representation. The Constitution controls the violence of faction in a number of ways (the most important of which is the creation of an enlarged sphere, or a large republic), but here are four general ways the Constitutional system intended to deal with the difficulty of sectional faction by allowing “ambition to counteract ambition”:

  • First, the Constitution divides power between the state and federal government which allows local interests to pursue their ends without interfering with the self-government of other localities. The federal government and local government, each jealous of their powers, will compete for sovereignty through the courts and public forums.
  • Second, when federal legislative power is exercised, it is divided. This means majority factions cannot easily exact their designs because a bill must pass both houses.
  • Third, the Senate’s mode of election and representation are meant to balance the power of more populous states in the House.
  • Fourth, Publius imagined that representatives would “enlarge and refine public opinion” meaning that the representative would be less susceptible to the passions of local or sectional factions.

The Constitutional system successfully combated sectional faction under the pressures of the slavery question and Congress proved capable of balancing factious interests until states from the south rejected the Constitutional system and seceded from the union. In the next essay, I will consider how the Constitution and the Congress successfully combated the tendency toward disunion throughout the Antebellum period.

Samuel Postell serves as Executive Director of The Center for Liberty and Learning at the Founders Classical Academy of Lewisville, Texas. Mr. Postell graduated from Ashland University with undergraduate degrees in Politics and English. He earned his master’s degree in Political Thought from the University of Dallas and is working on his dissertation to complete his Ph.D. Mr. Postell is writing a book on Henry Clay and legislative statesmanship, a subject about which he frequently writes and publishes. He has also conducted studies for Ballotpedia and has frequently contributed to Law and Liberty and Constituting America. At Founders Classical Academy he teaches courses on Government and Economics, and has taught courses on American Literature and Rhetoric.

 

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The American Civil War and Consequences of Secession: Defining the Union, Role of the People and the States

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Guest Essayist: Eric Sands
The American Civil War began April 12, 1861 when Confederate forces opened fire on the Union-held Fort Sumterhttps://en.wikipedia.org/wiki/American_Civil_War#/media/File:Bombardment_of_Fort_Sumter.jpg


The Civil War was the greatest trauma to affect the United States in its history. The horrors of that conflict and the issues it brought to light continue to haunt the nation today and scholars continue trying to make sense of the turmoil that gripped the nation. One of the residual problems left over from that era is the doctrine of secession, or the ability of a state to rescind its membership in the Union and leave by itself or with other states. This, of course, is what eleven states tried to do in 1861 precipitating the bloody, awful war that followed. But is there a “right” of secession in the United States Constitution? How would a right of secession square with prevailing ideas of the Union? What response can be given to states claiming a right to secede from the Union? These and other questions required serious consideration in the 1860s and were answered most clearly by Abraham Lincoln.

The argument for secession begins with a claim that the states are the constitutive elements of the American political system. The states “made” the Union and thus never relinquished their essential sovereignty when the Constitution was formed. Under this view, the states were the parties to the original social contract that gave rise to the Union and thus are the entities that most legitimately judge whether the terms of that contract have been honored. When Southerners began to perceive that the terms of the contract were being violated over the slavery issue in the 1850s, a movement grew for the Southern states to withdraw their consent to be governed and to “peacefully” leave the Union to form their own political organization. In total, eleven states joined this movement and created the essential breach that inaugurated the Civil War.

President Lincoln was thrust into the role of defender of the Union and had to meet the secessionist argument head on. In his First Inaugural Address, Lincoln criticizes the secessionists for putting too much emphasis on the Constitution in articulating their understanding of the Union. According to Lincoln, the Union did not originate with the Constitution. Instead, “the Union is much older than the Constitution. It was formed in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured and the faith of all the then thirteen states expressly plighted and engaged that it should be perpetual, by the Articles of Confederation in 1778.” Finally, the quest for “a more perfect” Union was embodied in the Constitution in 1787.

The Union, therefore, according to Lincoln, was perpetual. “Perpetuity is implied, if not expressed, in the fundamental law of all national governments. It is safe to assert that no government proper, ever had a provision in its organic law for its own termination. Continue to execute all the express provisions of our national Constitution, and the Union will endure forever.” The essence of secession is thus suicide, and it is inconceivable that the Founders would have incorporated such a concept into the constitutional system. No association of states could hold together if some of them were free to leave whenever the mood struck them. Moreover, secession would not leave the Union “more perfect;” it would leave the Union less perfect, which is not consistent with the intentions of the Constitution set out in the preamble. Accordingly, it cannot be said that the Founders endorsed something like secession in the constitutional system.

Even more, secession ignores the Declaration of Independence and the first words of the Constitution. The Declaration, when speaking of the need to separate from Great Britain, does not talk about colonies or states doing the separating. The language of the Declaration is that “one people” must separate. Clearly, then, the act of separating is not a function of state sovereignty but an act of popular sovereignty, a Union of people that has been forged in shared struggle and oppression and now seeks to liberate itself from tyranny. Likewise, the first words of the Constitution are not “we the states” but “we the people.” It is the people forming a new government out of their sovereignty, not the sovereignty of the states. The states, of course, are to be partners in this new government and significant roles are delineated to them in the constitutional system. But power is ultimately held by the people, the Union is made up of the people. The people may thus dissolve the Union if they ever chose to do so, but the states may not.

Lincoln reinforces these points in his Message to Congress in Special Session. He calls secession “sugar-coated rebellion” and denies any revolutionary character to it. Instead, it is a “sophism” deriving its “currency from the assumption that there is some omnipotent and sacred supremacy pertaining to a State – to each State of our Federal Union. Our States have neither more nor less power than that reserved to them in the Union by the Constitution, no one of them ever having been a State out of the Union.” The original thirteen became a Union before completing their separation from Great Britain. And the others came into the union from a condition of dependence. Thus, the reverence given to “states” is based on mist and shadows and does not match this history of the American regime. In short, the states only possess those powers granted to them by the Constitution, and this does not include the power of secession.

Eric C. Sands is Associate Professor of Political Science and International Affairs at Berry College.  He has written a book on Abraham Lincoln and edited a second volume on political parties.  His teaching and research interests focus on constitutional law, American political thought, the founding, the Civil War and Reconstruction, and political parties. 

 

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Property Ownership and Political Stability: The U.S. Constitution’s Design to Secure Individual Rights the Communist Manifesto Abolishes

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Guest Essayist: Andrew Langer
Scene from the 1848 Revolution, German March, Berlin.https://en.wikipedia.org/wiki/The_Communist_Manifesto#/media/File:Ereignisblatt_aus_den_revolution%C3%A4ren_M%C3%A4rztagen_18.-19._M%C3%A4rz_1848_mit_einer_Barrikadenszene_aus_der_Breiten_Strasse,_Berlin_01.jpg


“[T]he theory of the Communists may be summed up in the single sentence: Abolition of private property.”  –The Communist Manifesto, Chapter 2

In addressing the inequities of 19th century European society, two German philosophers, Karl Marx and Friedrich Engels, building on the writings of ancient Greek philosophers in creating classless and egalitarian societies and the philosophies undergirding experimental communal living in the 19th century (inspired by philosophers like Charles Fourier), first articulated the political and economic system we now know as “communism” in their “Communist Manifesto.”

At the time of publication of the Communist Manifesto’s first edition (1847), there had been scant movement around the world toward liberal democracy (political systems that value liberty and the protection of individual rights for all citizens)—there had been our own revolution in the United States, liberalization in the United Kingdom, and a series of revolutions in France that had seen the nation swing from monarchy to republic to empire to monarchy, back and forth for decades.

As such, tremendous inequality remained among the populations of most European nations—and, perhaps not ironically, it was the year after the Communist Manifesto was first published, in 1848, that there was a series of revolutions in nations across Europe. In no uncertain terms, they cannot be characterized as communist revolutions, but much more in the vein of classical liberalism, rejecting monarchies and hierarchical societies for those that more highly valued individual rights.

Nonetheless, to the uninitiated, the ideas enshrined in the Communist Manifesto can be tremendously alluring—the idea of a society without classes, where all goods and property are owned in common, where the balance between work and life can be described as “from each according to his abilities, to each according to his needs,” a statement written by Marx in his 1875 work, “Critique of the Gotha Programme.”

The concept of abolishing private property is a pernicious enough sentiment. But coupled with the idea of the community picking and choosing what some individual’s abilities are as well as determining what that individual’s needs are, and you have a political and economic philosophy that, when put into action in a society, inevitably leads to both oppression and poverty.

Bound up in Marx’s 1875 statement is the essence of force and coercion.  Regardless of whether it is the “state” acting (and in Marxist philosophy, the state-centered transition phase between capitalism and communism is “socialism”), or the communistic society, you’re talking about force—the state determines what your “abilities” are, and you are forced to give of those abilities to society at large, regardless of your own feelings in the matter.

At the same time, the idea that the society then determines what your needs are, and that you’re unallowed to own property of your own, means that they can use the heavy hand of coercion to achieve their goals.

Moreover, the abolition of private property hamstrings the ability of a society to achieve economic prosperity and promotes political instability. Richard Pipes in his seminal work, “Property and Freedom,” looked at societies across history and, looking at how those societies protected private property, demonstrated the interrelationship between the protection of private property and the successful longevity of a nation. Peruvian economist and political scientist Hernando DeSoto, in “The Mystery of Capital” engages in something similar, but instead of looking through history, he looks at more recent examples around the world.

If you own your own private property, you can both use it to invest in some entrepreneurial idea, and you can utilize the property itself to support yourself and your family. Because you have a reliance on legal systems to protect that property, you can have hope in your future, and that hope creates that political stability.

The contrast is straightforward: if you don’t protect private property, if your society is centered on coercion and giving up your individual rights to the collective, this leads to oppression and economic stagnation. It is why just about every society founded on the principles outlined in the Communist Manifesto has failed, and others only remain because of brutal oppression or because they’ve adopted certain measures of state-sponsored capitalism.

Our own United States Constitution creates a classless society, starting with the idea that there is total equality among citizens. All of the rights (enumerated and unenumerated) apply to everyone, regardless of income level, race, etc. More importantly, it is predicated on the idea that those rights pre-exist the government, and aren’t bestowed by that government, that the Constitution itself is a restraint on government power and not the other way around.

Bound up in this is the 5th Amendment to the Constitution: “No person shall be deprived of life, liberty or property without due process of law… nor shall private property be taken for public use, without just compensation.”

This is a stark and fundamental departure from Marx and Engels—as opposed to abolishing private property, our Constitution makes it clear that government can only take private property from individuals provided that three things happen:

(1) The property is being taken for a legitimate public use.

(2) That due process is accorded to the property owner.

(3) That if 1 and 2 are adhered to, that “just” compensation is given to the property owner.

Setting aside instances in which these three tenets are abused by government, from a constitutional perspective, this is a clear departure from communist philosophy.

And it undergirds other rights as well. Keep in mind, the several constitutions of the Soviet Union, for instance, protected things like free speech. But since the constitutions of the USSR didn’t protect private property, that right was held cheaply since the state could just confiscate the presses of a critical press and threaten the journalists themselves if they didn’t adhere to the “party line.”

The same can be said of other individual rights: freedom of religion, freedom of assembly, the right to keep and bear arms. Besides outlawing most private gun ownership outright, the state could use their coercive powers to keep these other individual rights “in check.”

By guaranteeing rights, and recognizing that power flows from the people to their government and not the other way around, and that regardless of who you were all adults had the same rights, our Founders created the classless society Marx dreamed of. It was the flawed vision of Marx and Engels that failed, because they didn’t understand how their approach could be fundamentally abused and used to oppress, that spawned a nightmare.

Andrew Langer is President of the Institute for Liberty.

 

 

 

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Contrasting Visions: The United States Declaration of Independence and Constitution vs the Communist Manifesto

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Guest Essayist: Jay McConville
Cover, Communist Manifesto’s initial publication in February 1848, London.https://en.wikipedia.org/wiki/The_Communist_Manifesto#/media/File:Communist-manifesto.png


When I was a boy, I loved baseball. Unfortunately, having been born in Queens, New York, my chosen team was the NY Mets who, at that time, were the laughingstock of the major leagues. I still have faint memories of my father agonizing over their 89 losses in 1968, which, as bad as it was, was their best year since joining the league in 1962. At no time during those years had they finished better than ninth.

Then something amazing happened. In one of the greatest sports upsets in history, the 1969 “Amazing Mets” rose from the depths of the standings to become World Series Champions. I still remember that final game and cheering for all my favorite players. Yet, while they played amazing baseball, credit for the miracle season is most often given to Gil Hodges, the team’s manager. Joining only in 1968, he had quickly established a common vision for the team. His leadership enabled them to overcome their past, silence their critics, and play like champions. As announcer Curt Gowdy said during the last inning of the ’69 series, one word described the Mets: “inspired.”[1] It was Gil Hodges who inspired them, and his common vision put them on the road to success.

“From day one, spring training, Gil Hodges had a plan…He made each and every one of us better,” said outfielder Cleon Jones. Pitching Ace Jerry Koosman added, “Gil Hodges had one set of rules. There weren’t two sets of rules, and we each had to abide by those rules. That was a way of drawing teammates together.”[2] It worked, and the laughingstock team became World Champions.

You might wonder what this story has to do with the United States Constitution. Well, maybe not much. There is one thing, however, that I think it shows. An inspirational vision and a clear mission are critical to the success or failure of any organization. Successful leaders unlock the potential of others by articulating such a vision, one that can be shared by all and that is fair and equal across the board. History also tells us that the wrong vision, the wrong mission, can lead to disaster.

The Declaration of Independence and the United States Constitution established our nation’s vision and mission. The brilliant leaders who crafted those documents united a diverse people, established the most successful nation in history, and changed the face of government forever.

The vision so beautifully articulated in our founding documents was that all men were sovereign over themselves and equal before the law, and that because of this innate human value, governments were instituted among them only by their consent. It was a vision that had been long in the making. Thomas Jefferson, tasked by the Continental Congress to draft the Declaration in June 1776, had studied the writings of the Greeks, the Magna Carta (1215), English Common Law, Coke’s Institutes of the Laws of England (1600-1615), John Locke, and Montesquieu (1689-1755), among others. Like James Madison, John Adams, and the other Founders, he knew the importance of individual sovereignty in guarding against the depredations of the state. The vision in the Declaration was a bold assertion of those rights. “We hold these truths to be self-evident, that all men are created equal, and that they are endowed by their creator with certain unalienable rights…”[3] His phrase “life, liberty, and the pursuit of happiness,” which was lifted from John Locke’s Two Treatises of Government (1690) (“life, liberty, and estate”)[4], established that forever more the individual would be sovereign, protected from the tyranny of government by the fact of his humanity.

While Jefferson did not attend the Constitutional Convention in 1787, that vision was certainly reflected in the Constitution’s checks and balances, controls on federal power eventually acceptable to both Federalists and Anti-federalists alike. The critical nature of these was most famously, and most articulately, laid out in Federalist 51, and James Madison’s famous words: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place, oblige it to control itself. A dependence on the people is no doubt the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”[5] Madison, a Federalist, advocated for a strong central government, yet recognized the risk in power being concentrated in the hands of fallible men.

Later, the Bill of Rights was added, providing ten amendments to further clarify the vision of a free and sovereign citizenry. The Anti-federalists insisted that those amendments be included, to document for all time the limited scope of government. This unifying vision survives to this day, enshrined in the due process protections in the 14th Amendment, and reflected in many Supreme Court decisions limiting the government’s reach.

That vision was both positive and unifying, and it brought our young nation together. The then national motto, adopted in 1782, reflected the belief that the individual was the core of the nation. E Pluribus Unum (from many, one) ushered in a dramatic change in the nature of governance. There was no king, no emperor, and no aristocratic class to rule. “We the people” were sovereign and independent, yet also tied together in a common pursuit.

And what was that pursuit? Equal in importance to the vision was a unifying mission: to achieve “a more perfect Union.” This would be accomplished by establishing “Justice,” insuring “domestic Tranquility” providing for the “common defense,” promoting the “general Welfare,” and securing “the Blessings of Liberty to ourselves and our Posterity.”[6] Articulated in the Constitution’s preamble, that is a mission worth serving, and one that hundreds of millions have pledged their lives to.

It is informative to contrast America’s vision and mission to that articulated in another extremely impactful document, the “Communist Manifesto.”[7] First published in London in 1848, it was translated into multiple languages, and, importantly, released in Russian in 1863. Like the United States’ founding documents, the manifesto ushered in a revolution in governance, which took hold first in the Soviet Union in 1917, and then spread throughout the world. While written mostly by Karl Marx, “its economic analysis was strongly influenced by [Friedrich] Engels’s ‘practical experience of capitalism’ in his family’s cotton firm…in 1842-44.”[8] It is therefore important to note that the world was experiencing extreme upheaval during the 1840s. Major social, political, and economic strife fed the development of the text, which explains some of its dark character. The serf societies were ending, farmers were moving to cities in response to the budding industrial revolution, the European aristocracy was losing its power to a rising class of business entrepreneurs, while everywhere workers struggled to find a place in new, rapidly changing, and often soul-deadening, industries. As historian of the manifesto, George Boyer, writes, “despite its enormous influence in the 20th century, the Manifesto is very much a period piece…It is hard to imagine it being written in any other decade of the 19th century.” Regardless, its impact was global and long-lasting. The 1917 Soviet Revolution adopted Marxism as its guiding vision, which eventually led to a rapid expansion of communism in the 20th century.

Yet what was that vision? Was it to inspire great things, like that of the Declaration of Independence and the U.S. Constitution? No, it was not. The Communist Manifesto[9] inspired, in a word, tyranny. A review of some of its text demonstrates why.

First, there was no message of equality of all men. The document focuses on class conflict, and the struggle of one class to destroy the other. “Society as a whole is more and more splitting up into two great hostile camps, into two great classes directly facing each other – bourgeoisie and proletariat.” The mission would only be achieved when “they” (the bourgeoisie) were destroyed.

Second, there was no commitment to individual sovereignty (life, liberty, and especially property) seen in the U.S. documents. “The abolition of bourgeois individuality, bourgeois independence, and bourgeois freedom is undoubtedly aimed at” and “…you reproach us with intending to do away with your property. Precisely so; that is just what we intend.” Gone was the concept of unalienable rights.

Third, the vision did not inspire unity, but instead served as a justification to use raw power to achieve dominance, power that would be wielded by the state. “The proletariat will use its political supremacy to wrest by degrees all capital from the bourgeoise, to centralize all instruments of production in the hands of the state, i.e., of the proletariat organized as the ruling class…”

And finally, the power of the state was to be absolute, and the revolution violent. “Of course, in the beginning this cannot be effected except by means of despotic inroads on the rights of property…”

In contrast to E Pluribus Unum, consent of the governed, equality before the law, protection of individual life, liberty, happiness, and property, and limits on the tyrannical impulses of government, the Communist Manifesto provided vision and mission focused on class conflict, rule by force, destruction of the opposition, the end of property rights and individual rights, all to be instituted by the unlimited “despotic” power of government.

The Victims of Communism Memorial Foundation has done extensive research documenting the damage done by tyrannical communist governments. They cite 100 million deaths at the hands of these regimes over only a 100-year span. Inspired and enabled by the Communist Manifesto, these regimes destroyed societies in a quest of a property-free utopia that was unachievable. In so doing they imprisoned, tortured, banished, and killed over a hundred million of their own citizens, while foisting war and chaos on the world. Thirty years after the fall the Soviet Union, “millions of people worldwide — one-fifth of the world’s population — still live under communist tyranny.”[10]

It has become somewhat fashionable to say that communism, or “socialism,” is a good idea (or theory) that could work if we just implemented it correctly. The Communist Manifesto gives lie to that claim. The vision is destruction, the mission tyranny. The result predictable. How many more need to die before we finally accept this fact?

It is also fashionable to criticize the United States for our failure to live up to our vision and mission. We are beset, and have been since our founding, with a multitude of problems and challenges. Slavery, social upheaval, war and civil war, domestic strife and crime, poverty, natural and manmade environmental disasters, depressions, recessions, and so much more. Have we failed in our mission? I think it is important to remember the 1969 Mets. In that miracle year, they gave up 1,217 hits, including 119 Home Runs, let in 541 runs, batted only .242, struck out 1089 times, and lost 62 Games. Yet they were World Champions.

Our shared mission is to “promote a more perfect union.” The word “more” is important. Our mission is not a utopian dream of perfection, instead it inspires us toward progress. Progress, not perfection. The road may be twisted and rocky, but we are well along it to establish justice, peace at home and abroad, improve the general welfare and pass the blessings of our liberty onto our future generations. Each generation’s task is to make our nation “more perfect.” For all our faults, our unifying vision and mission have set us apart among nations and made us the example for others to emulate.

What we need now is to trust in that vision, not abandon it for one proven toxic and deadly.

We need to rededicate ourselves to creating a more perfect union, not descend into the politics of resentment and strife found in the Communist Manifesto.

As future President, Calvin Coolidge, said in his “Have Faith in Massachusetts” speech in 1914, “We need a broader, firmer, deeper faith in the people – a faith that men desire to do right, …a reconstructed faith that the final approval of the people is not given to demagogues…but to statesmen ministering to their welfare, representing their deep, silent, abiding convictions.”[11]

E Pluribus Unum, Consent of the Governed, All Men Created Equal, and a More Perfect Union.

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

[1] Team of Destiny – The Final 3 Outs of the 1969 World Series, New York Mets, https://www.youtube.com/watch?v=JyDiuRDf918

[2] The Greatest Season: The 1969 Miracle Mets Trailer, MyMar Entertainment and Media, https://www.youtube.com/watch?v=KSh9XcgVrt0

[3] Declaration of Independence: A Transcription, National Archives, retrieved from https://www.archives.gov/founding-docs/declaration-transcript

[4] Bernstein, William (2004). The birth of plenty: How the prosperity of the modern world was created, McGraw Hill

[5] The Federalist No. 51, [6 February 1788], Founders Online, National Archives, https://founders.archives.gov/documents/Hamilton/01-04-02-0199. [Original source: The Papers of Alexander Hamilton, vol. 4, January 1787 – May 1788, ed. Harold C. Syrett. New York: Columbia University Press, 1962, pp. 497–502.]

[6] Constitution of the United States, Constitution Annotated, United States Congress, retrieved from https://constitution.congress.gov/constitution/

[7] Hutchins, Robert Maynard ed. (1989). Great books of the western world: Marx. Encyclopedia Britannica, Inc.

[8] Boyer, George (1998). The historical background of the Communist Manifesto. Journal of Economic Perspectives, Vol. 12, No. 4, Fall 1998, https://www.aeaweb.org/articles?id=10.1257/jep.12.4.151

[9] All quotations from Hutchins (1989), pp. 413-434

[10] Victims of Communism Memorial Foundation, https://victimsofcommunism.org

[11] Coolidge, Calvin (1914). Have faith in Massachusetts. Calvin Coolidge Presidential Foundation,  https://coolidgefoundation.org/resources/have-faith-in-massachusetts/

 

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Avoiding the Dustbin of History: Failures of Communism and America’s Constitutional Foresight on Human Nature, Self-governance, and Civil Society

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Guest Essayist: Tony Williams


Even decades after the fall of the Soviet Union and collapse of other communist states, the old canard that communism is a great idea that has never really been tried refuses to be thrown into the dustbin of history along with its failed regimes. Sympathizers with Marxist views cling to this belief despite all contrary evidence over the past century.

To give the view its due, however, the belief rests upon the presupposition that communism has only been introduced into largely agrarian societies rather than the advanced industrial societies rife with the class conflict and consciousness envisioned by German philosopher and communist Karl Marx. Therefore, orthodox Marxism has never truly been introduced by a violent revolution of the oppressed proletariat overthrowing the bourgeoisie. Nevertheless, this is because Marx’s progressive view of history and scientific socialism was simply wrong on several points and his theory had numerous flaws, particularly in its understanding of human nature.

The communists who followed Marxism believed that human nature is good and perfectible, and that human beings were capable of building utopias once oppressive institutions were destroyed and the internal contradictions of capitalism resulted in revolution. The Greek etymology of the word utopia means “no place.”

The American Founders were influenced by ancient and Christian thought that understood human nature to be imperfect (due to vice or sin) but capable of virtue. They consequently established a republican United States Constitution that controlled the government as well as the governed while protecting liberty. Separation of powers, checks and balances, federalism, bicameralism, and regular elections are proof that the Founders sought to limit the vagaries of human nature.

The other mistake of communism is the belief that humans are only shaped by an economic determinism and class conflict. This is an absurd reductionism. Human beings are much more complex creatures and are driven by politics, culture, religion, community, ties of kith and kin, and providing for their families rather than just economic inequality and alienation.

In Federalist #10, James Madison acknowledged that factions formed as a result of differences over property. The divisions over property were based upon “the diversity in the faculties of men” and their passions. He understood therefore that they would always exist. Madison noted that a zeal for political opinions, religious views, and a host of other things in society also divided people.

Madison stated, “There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests.”

The answer was that neither of these was desirable. So, Madison offered the alternative of controlling or mitigating the effects of factions by expanding the sphere of the republic and allowing differing views to flourish. Communists instead chose to destroy liberty and sought to force the people to have the same opinions through cult of personalities, cultural revolutions, reeducation and indoctrination, and rewritten history.

Communism has always been imposed by a small revolutionary intellectual vanguard upon a mostly unwilling peasantry. The Russian Revolution, for example, occurred when only perhaps two percent of the population was employed in industry, and Russian Marxist Vladimir Lenin himself was frustrated that the peasantry did not demonstrate any class consciousness. They were often strongly attached to the Tsar and the Russian Orthodox Church. Widespread opposition to the Bolshevik regime in the wake of the Russian Revolution resulted in a bloody civil war that left millions dead and the opposition summarily crushed.

Moreover, communism has never been led by the proletariat after the state “withered away” in Marx’s terminology. Instead, the communists formed one-party dictatorships and police states with unlimited power that were much more oppressive than the regimes they overthrew. Indeed, they unleashed unimaginably horrific genocides. Perceived enemies of the state and their families were executed and thrown into the gulag. Communist states starved people to death by the millions.

Contrarily, one of the main principles of the American Revolution was the transformative concept of popular sovereignty where the people rule. Elites certainly comprised the leadership of the American Revolution in the halls of legislatures and conventions and one cannot ignore slavery, but Founders created a republic in which the people elected representatives and could serve in different levels of government themselves. The Declaration of Independence was anchored in the principle of popular rule and right to overthrow a tyrannical government that violated their rights.

Marxism also got several things spectacularly wrong about humans as economic actors. Most fundamentally, people want to enjoy a higher standard of living and consumer goods rather than wanting to overthrow the free enterprise system. The massive food lines experienced by the people living under communism while party apparatchiks ate caviar in their summer dachas bred a lot more resentment than capitalist inequality.

In advanced capitalist societies, workers have generally enjoyed the protections of the social safety net—such as pensions, 401(K)s, Social Security, unemployment, health benefits—provided by employers and tax-supported welfare states. While these government programs expanded the purposes and scope of government beyond that envisioned by the Founders, they are much less intrusive than communist states. Moreover, industrial regulations have provided workers with numerous safety and health protections. Workers have also organized into labor unions to bargain or strike for better wages, hours, and working conditions or control over the shop floor. All these developments have negated scientific socialism.

Marx wrote the Communist Manifesto during some of the worst ravages of early industrialization including oppressed workers, unsafe and unhealthy conditions in factories and mines, great danger of mutilation and death, widespread environmental degradation, and great poverty and squalor in industrializing societies. In the twentieth century, those problems characterized communist regimes instead of modern capitalist societies. Meanwhile, capitalism has plainly lifted billions out of poverty through dynamic growth, innovation, and widespread prosperity.

Communism was responsible for an estimated 100 million deaths. It suppressed human flourishing in the arts and sciences by extinguishing liberty, created widespread suffering with decrepit economic systems, imposed crushing police states, and destroyed the institutions of civil society. Most of the American Founders understood that such utopian schemes were doomed by their flawed understanding of human nature, self-governance, and civil society. The American founding vision built a constitutional order with self-governance and a healthy civil society that allowed individuals to thrive.

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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Folly of a Dictatorship Led by a Single Tyrant: The Undoing of Napoleon Bonaparte vs America’s Constitutionally Constrained Executive

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Guest Essayist: James C. Clinger
Napoleon Bonaparte exiled to island of Saint Helena by Franz Josef Sandmann, c. 1820https://en.wikipedia.org/wiki/Napoleon#/media/File:Napoleon_sainthelene.jpg


The American Constitution was crafted in a deliberate way to prevent the failures of the government under the Articles of Confederation and to stop the harmful events that the Founders could see abroad and throughout history. Of particular concern was the need to empower the president to execute the law in a faithful manner. At the same time, the United States Constitution would limit executive power in order to prevent the rise of a dictator. Such safeguards have not always been found in the constitutions or governmental structures of other nations, and ambitious political figures, such as Napoleon Bonaparte, have taken advantage of every opportunity to amass more and more power, often at great cost to their own countries and also to the detriment of neighboring states.

The Articles of Confederation provided for virtually no executive authority. The American Constitution took another approach, both authorizing executive power but also constraining its exercise with a combination of institutional checks and balances. With the exception of the power to veto bills passed by Congress, which appears in Article I, the bulk of the presidential powers listed in the Constitution are found in Article II. This article is much more brief than the text of Article I, which applies to legislative powers, and approximately half of the text of Article II deals with qualifications for office and the manner of election, rather than powers and duties of the office. Some observers may infer from the small amount of verbiage in Article II compared to Article I that the legislature holds far greater power than the executive. In fact, James Madison wrote in Federalist #51, “In republican government, the legislative authority necessarily predominates.”[1] Other observers believe that while the actual text of Article II is terse, the specifically listed powers are broad, and additional powers may be implied from those that are explicitly stated. Within Article II, the president of the United States is “vested” with executive power. There has been considerable debate on whether that vesting refers to holding the explicit powers that are later listed, or whether this provides authority to carry out general powers that are deemed to be executive. What “executive” action actually entails is not completely clear. The word “executive” is derived from the Latin words ex sequi, which in English means to follow or to carry out.[2] This suggests that an executive, including a president, is primarily a follower acting on behalf of someone or something else. Nevertheless, many Americans think of the modern president as more of a leader than a follower.

The first powers listed in the first clause of Article II authorize the president to be commander-in-chief of the armed forces of the United States. It also indicates that the president “may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.”   Notably, the Constitution does not say that the president can tell principal officers what to do. The president is also given the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. The president is not given clemency powers for state offenses.

The second clause of Article II authorizes the president “to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.” By law, the Congress may “vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

These provisions, commonly known as the advice and consent clause, have been at the center of various controversies during American history. The clause indicates that the president may appoint “officers” of the United States, but it does not define what an officer is. Furthermore, while the clause explicitly provides for presidential appointment, it nowhere authorizes the president to remove the appointees that he has appointed.[3] As a practical matter, the federal courts have concluded that the president has at least some removal power implied by the executive powers vested in Article II,[4] but there have been a number of disputes about this question resolved somewhat inconsistently by the Supreme Court in cases such as Myers v. United States,[5] Humphrey’s Executor v. United States,[6] and Seila Law, LLC v. Consumer Financial Protection Bureau.[7]

The Constitution also gives the president the power to “make” treaties, subject to the approval of two-thirds of the senate, but it is not specific about the enforcement of treaties or their termination. During the War of Independence, the United States entered into a treaty allying itself with France. A few years later, after the French Revolution had become brutal and bloody, President George Washington issued a proclamation of neutrality, effectively voiding the treaty. This was controversial in its time, since the Constitution did not seem to authorize that sort of unilateral action, and also because there were many prominent figures in government, such as Thomas Jefferson, who were at least initially sympathetic to the French Revolution. In support of Washington’s action, Alexander Hamilton penned seven letters for publication making the case for the neutrality proclamation. Using the pen name, Pacificus, Hamilton sparred with James Madison, with whom he had written many of the Federalist Papers. Madison, writing under the name Helvidius, was recruited to oppose Washington’s position by Jefferson, who was then serving as secretary of state.[8]

Article II also imposes obligations upon presidents, as well as confers powers. Presidents are required to inform Congress “from time to time” of the State of the Union. The chief executive is also obliged to recommend, for the consideration of Congress, such measures which the president deems as “necessary and expedient.” When Congress is not in session, the president is authorized to call a special session of one or both houses of Congress. The president is also empowered to receive all foreign ambassadors. This has been construed to mean that the president has exclusive authority to recognize foreign governments.

Finally, Article II also demands that the president “take care that the laws be faithfully executed.” This appears to be a broad, encompassing authority and responsibility to carry out federal law, even those that are not supported by the president. While there is some inherent discretion in all enforcement, the president does not have any general authority to dispense with laws enacted by the legislature, as was the case in some monarchical systems.

The Constitution also constrains the chief executive and all other officers by providing for their impeachment and removal for the offenses of “Treason, Bribery, and other High Crimes and Misdemeanors.” This suggests that no executive can flout the law without consequences. It also provides for a means of removing an officer without resorting to a coup or assassination.

Many countries do not so carefully curb the powers of their executives, or they lack the will or the ability to enforce these constraints. In France in 1799, the newly established government, called the Directory, fell to a coup which was encouraged from within. The plural executive body was joined by a bicameral legislature made up of a Council of Five Hundred and a Council of Elders. One director, Abbe Emmanuel Sieyes, plotted a coup that would force out most of the directors and lead to the creation of a consulate, headed by a military leader as first consulate while he exerted actual control. Although not Sieyes’ first choice, the popular and successful General Napoleon Bonaparte was selected to serve as first consul. The general’s brother, Lucien Bonaparte, served as president of the Council of Five hundred, as expected to assist the coup. The coup succeeded in sweeping away the Directory, but Napoleon was not content to serve Sieyes’ interests. Very quickly, Napoleon rather than Sieyes was firmly in control, with no internal dissent permitted.[9]

Napoleon was not curbed by constitutional constraints upon his executive power. He suppressed the critical press and created his own propaganda machine.[10] The emperor was able to use his military to crush internal dissent, stop brigandage, and thwart foreign invasions.[11] Unconstrained by prior legal limitations on his conduct, the emperor designed his own legal system, the Code Napoleon, and imposed it upon his own nation. Ultimately, Napoleon’s own limitless ambition led to his undoing, but not until thousands had died in his pursuit of conquest. Of course, the United States has also had its own constitutional crises, most notably in the Civil War, which also cost much in blood and treasure. But under the Constitution, the United States has been freed of the folly of a dictatorship led by a single tyrant. The Constitution’s limits on the executive have thus far staved off that calamity.

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

[1] The Federalist Papers, Number 51

[2] Rohr, John A. 1997. “Public Administration, Executive Power, and Constitutional Confusion.” International Journal of Public Administration 20 (4/5): 887

[3] Tillman, Seth Barrett. 2010. “The Puzzle of Hamilton’s Federalist No. 77.” Harvard Journal of Law & Public Policy 33 (1): 149–67.

[4]  Prakash, Saikrishna.  2006.   “New Light on the Decision of 1789,”    Cornell Law Review. 91:1021-1078.

[5] 272 U.S. 52

[6] 295 U.S. 602,

[7] 140 S. Ct. 2183

[8] Young, Christopher J . 2011. “Connecting the President and the People: Washington’s Neutrality, Genet’s Challenge, and Hamilton’s Fight for Public Support.” Journal of the Early Republic 31 (3): 435–66.

[9] Rapport, Michael. 1998. “Napoleon’s Rise to Power. (Cover Story).” History Today 48 (1): 12–19.

[10] Dwyer, Philip G. 2004. “Napoleon Bonaparte as Hero and Saviour: Image, Rhetoric and Behaviour in the Construction of a Legend.” French History 18 (4): 379–403.  See also Forrest, Alan. 2004. “Propaganda and the Legitimation of Power in Napoleonic France.” French History 18 (4): 426–45.

[11] Devlin, Jonathan D.  1990.  “The Directory and the Politics of Military Command: The Army of the Interior in South-East France.”  French History,  4 (2):, 199–223.   See also Brown, Howard G. 1997. “From Organic Society to Security State: The War on Brigandage in France, 1797-1802.” Journal of Modern History 69 (4): 661-695.

 

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Napoleon Bonaparte, the French Revolution, and America’s Protection of the Newly Formed United States Against Tyranny

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Guest Essayist: James C. Clinger
General Bonaparte surrounded by members of the Council of Five Hundred during the Coup of 18 Brumaire, by François Bouchothttps://en.wikipedia.org/wiki/Napoleon#/media/File:Bouchot_-_Le_general_Bonaparte_au_Conseil_des_Cinq-Cents.jpg


The United States and France had complicated and seemingly inconsistent relations in the years preceding and shortly following the American Revolution. In the 1750s, the American colonists and the British military fought the French in the French and Indian War. But in the 1770s, the French provided invaluable assistance to the American cause in the fight against the British in the War of Independence. During that war, the newly formed United States entered into a treaty allying itself with France, but after another revolution broke out in France in the 1790s, America’s first president, George Washington, issued a neutrality proclamation, effectively negating the treaty.

While the revolution raged in France, American politicians staked out positions of support or denunciation of the increasingly bloody regimes that replaced the government that had aided their cause in the fight for independence. A few years later, a new government and a new powerful figure, Napoleon Bonaparte, ruled over France. His rule made a considerable mark in the United States, for he was responsible for ceding enormous territory to the new nation in what has become known as the Louisiana Purchase in 1803. A few years later, the wars Bonaparte stirred up in Europe carried over to the western hemisphere in what is known now as the War of 1812, in which Americans once again fought the British, the primary enemy of France in that era.

The foreign affairs of these two nations are not so much the focus of this essay as they are illustrations of the implications of domestic events in each nation. During these years, the new nation of the United States and the relatively old nation of France each experienced dramatic changes in their constitutional development. These developments left the United States with an energetic yet institutionally constrained executive leading the government of a federal republic. In France, an emperor dominated the political scene of a unitary state in which the executive controlled both the legislature and the judiciary. This essay will explore how and why two nations with such intertwined histories took such divergent paths.

In 1984, the political scientist, Donald S. Lutz, published an article reporting his findings from research that examined which European authors were most frequently cited in the writings of America’s founders both before and after the revolution. The author most commonly cited was Charles-Louis de Secondat, Baron de Montesquieu, the author of a book published in English under the name The Spirit of the Laws.[1] In that work, Montesquieu developed a modern theory of what we now call the separation of powers. Montesquieu also made a case for an independent and secure court system, not subject to the will of the executive, the legislature, or any particular private interest. Montesquieu had significant impact in the design of the federal constitution, as well as the constitutions of many American state constitutions. He also had considerable influence in Britain. Ironically, his influence in his native France was not as deep or long-lasting as his impact abroad.

The first American national charter, The Articles of Confederation, did not display any interest in a separation of powers. The government established a unicameral legislative body which could, by committee, appoint one of their number as a president with little power.[2] There were no courts for the central government. State courts would handle legal disputes within their states’ boundaries, and the confederation congress would hear cases involving boundary disputes between states.[3] All of this changed with the ratification of the new constitution. While there was some overlap and sharing of functions between the legislative, executive, and judicial branches, to a great extent these institutions were kept separate, establishing a check against the mischief that might temporarily prevail in a single branch. The specific details of those checks will be discussed in the next essay. Suffice it to say now, that the institutional design of the constitution took into account the issues about which Montesquieu had written approximately a half century earlier.

In the Federalist Papers, the design of the United States Constitution was defended before a skeptical audience. James Madison, author of Federalist Paper #38, argued that no matter what flaws could be found in the new constitution, it was surely superior to the Articles of Confederation. In Madison’s words,

It is a matter both of wonder and regret, that those who raise so many objections against the new Constitution should never call to mind the defects of that which is to be exchanged for it. It is not necessary that the former should be perfect; it is sufficient that the latter is more imperfect. No man would refuse to give brass for silver or gold, because the latter had some alloy in it. No man would refuse to quit a shattered and tottering habitation for a firm and commodious building, because the latter had not a porch to it, or because some of the rooms might be a little larger or smaller, or the ceilings a little higher or lower than his fancy would have planned them. But waiving illustrations of this sort, is it not manifest that most of the capital objections urged against the new system lie with tenfold weight against the existing Confederation?[4]

One particularly noteworthy aspect of the new framework was provision for a president heading an executive branch of government. According to Alexander Hamilton, the constitution provided for “energy” in the executive through both the powers assigned to the office and the manner in which the officeholder would be selected. In Hamilton’s words, “The ingredients which constitute energy in the Executive are, first, unity; secondly, duration; thirdly, an adequate provision for its support; fourthly, competent powers.”[5] Under the Constitution, there is one chief executive, consistent with the unity principle. The president would serve fixed, four-year terms, consistent with the duration precept. Whether the support for the executive would be adequate would largely depend upon the appropriations of money by Congress. Hamilton believed that the powers vested in the president in Article II of the Constitution were “competent,” although at various times in history this claim has been challenged.

The political transformation of France took a different course. In 1789, while the American constitution was being drafted, France was a somewhat centralized monarchy, but with considerable autonomy exercised in its provinces. A National Assembly served as a constituent assembly, but it was unable to handle some pressing economic and political problems that were growing in the 1780s. The financial costs of war, including the American Revolution, had made the government almost bankrupt, despite the general trend of economic and population growth that the country enjoyed in prior decades. Crops failed in much of France in 1788, and prices for food and many other items spiraled up dramatically. The comptroller general of finances, Charles-Alexandre de Calonne, proposed a substantial tax increase on the upper classes to cover the budget deficit, but the National Assembly refused to approve this proposal, instead calling for the gathering of the Estates-General, which had not met since 1614. The Estates General was a body representing the clergy, the aristocracy, and the commoners. When the Estates General met in Versailles, the Third Estate, representing the commoners, declared itself the National Constituent Assembly and began to write a new constitution. King Louis XVI reluctantly accepted the new body and urged the nobles and the clergy to join it. Behind the scenes, the king sought out armed forces to oppose it.[6]

The new constitution did provide for some separation of powers in which the assembly was preeminent, but the king could appoint and remove his own ministers. The nobles lost their titles and hereditary privileges, and the franchise was extended to most adult men. The provinces lost much of their power to eighty-three newly created departements, which were roughly equal in size and uniform in their organization. Each departement was further divided into districts, cantons, and communes. Originally, each departement elected its own officials, but eventually these units became tools of the central government.[7]

The Assembly declared that all church property was at the “disposition of the nation.” The government then issued bonds, called assignats, that were secured by the value of the land. Later, all property owned by emigrants to France were also declared to be national lands. These securities were tradable, and functioned for a while as a paper currency.   As the volume of assignats increased, so did inflation. By 1790, the Assembly required all sitting priests and bishops to take an oath of submission to the government. The bishops overwhelming refused to do this, but about half of the parish priests took the oath. Many clerics left the country, and about two-thirds of the country’s military officers resigned their commissions. As dissent became more prevalent, the government attempted to control the press. More radical factions began to subvert the role of the elected assembly, arguing that demonstrations, petitions, and public protests were superior methods of expressing the will of the people.[8]

Though his powers were limited, the king was still formally the head of state until August of 1792. The country was facing armed resistance from without and within, and more radical elements were gaining power.  After militants stormed the royal palace in Paris, the Assembly suspended the king. Immediately afterward, more than half of the Assembly’s deputies fled the city. As Prussian troops advanced toward the capital, French troops marched out to face them. With much of the elected government gone and most of the military absent from the city, mobs took over the city’s prisons, held sham trials, and killed over a thousand inmates, almost half the local prison population. A National Convention was held, which had as its first order of business the determination of the fate of the king. The Convention unanimously ruled that the king was guilty of treason, and by a much closer vote ordered his execution. Later his Austrian-born wife, Marie Antoinette, was also sent to the guillotine. With each bloody act, the revolution generated more resistance, and as more officials fled the government, or were imprisoned for their perceived disloyalty, the more radical the remaining officeholders became. Ultimately, some of the more blood-thirsty of the revolutionaries, such as Maximilien Robespierre, fell out of favor and were executed themselves without trial.[9]

After Robespierre’s death, the National Convention designed a new, somewhat more conservative constitution in 1795. This new government had a bicameral legislature and a plural, five-member executive called the Directory. Each director was supposed to serve one-year terms. The short duration of the Directory and the plural nature of its membership were not in keeping with Hamilton’s views regarding an ideal executive branch. The new government was beset with dramatic inflation and serious military threats, as well as challenges from radical dissidents. The legislature ultimately forced out four of the five directors. The new directors looked to form a new kind of constitution to provide stability in 1799. This new constitution provided for three ruling consuls, but only the first held substantial power. The constitution was approved by plebiscite. As first consul, the directors eventually chose a young, military hero who had managed to lead French armies to victory despite a depleted officer corps and a mass of enlisted soldiers who were recruited through a very unpopular conscription process. This person’s name was Napoleon Bonaparte. He was initially named consul, but soon made clear that he wished to exceed his constitutional limits. By 1804, Napoleon was named emperor by several government agencies and subsequently was approved as emperor in a national plebiscite.[10]   Napoleon was to wield more concentrated power than any extant monarch in the world. His rise to power demonstrates both the failure of France’s constitutional design and its commitment to enforce constitutional provisions.

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

[1] Lutz, Donald S. “The Relative Influence of European Writers on Late Eighteenth-Century American Political Thought.” The American Political Science Review 78, no. 1 (1984): 189–97. https://doi.org/10.2307/1961257.

[2] Articles of Confederation, Article IX

[3] Articles of Confederation, Article IX

[4] The Federalist Papers, Number 38

[5] The Federalist Papers, Number 70

[6] Encyclopedia Britannica, French Revolution.  https://www.britannica.com/event/French-Revolution. Accessed July 10, 2022.

[7] Encyclopedia Britannica, Restructuring France.  https://www.britannica.com/place/France/Restructuring-France.  Accessed July 10, 2022.

[8] Ibid.

[9] Ibid.

[10] Ibid.

 

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Rise of Napoleon Bonaparte and America’s Rejection of One-man Rule

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Guest Essayist: Adam Carrington
Napoleon Bonaparte by Jacques-Louis David 1812https://en.wikipedia.org/wiki/Napoleon#/media/File:Jacques-Louis_David_-_The_Emperor_Napoleon_in_His_Study_at_the_Tuileries_-_Google_Art_Project.jpg


World history displays many instances of political rule by one person. We can point to ancient instances such as Julius Caesar or modern ones like Joseph Stalin. Napoleon Bonaparte ranks among the most famous of these men. He rose in the ranks of the French army during the 1790s by showcasing his brilliant military mind on the battlefield. He then expanded beyond a generalship to become France’s First Consul starting in 1799, then its Emperor beginning in 1804. Only his eventual defeat at Waterloo finally stopped his ever-increasing power.

Napoleon’s success in particular may tempt some to support the political rule of one. Unencumbered by others, this man first conquered France, then nearly did so to the rest of Europe. He instituted a legal code in his name that formed the basis for the modern French bureaucracy (and influenced many other governmental systems). One might see his example and think that one man can get much done if given the authority. We may not see Napoleon as acting justly. However, if the right man with the right principles got his power, then he could do much good.

We should resist this temptation. Our American system of government rejected rule by one man or even by one institution filled with men for a reason. Revisiting those reasons reminds us of the wisdom of that choice.

First, we must remember the famous quote of Lord Acton, a Nineteenth century British politician and historian. He declared, “All power tends to corrupt and absolute power corrupts absolutely.” The reason power tends to corrupt is not merely the enticement it holds to do ill. James Madison in Federalist #51 noted that men were not angels. He made sure to include in that appraisal those persons who hold governmental office. Power corrupts because human beings are fallible. They possess in themselves the temptation to abuse authority, to help themselves and their friends while hurting their enemies. The more power they can wield, the harder to resist the allure of using it for nefarious ends. Thus, one might better say that power reveals and nurtures corruption, a point the American Founders understood well and sought to address.

Our system of government does so by taking political power and dividing it in two ways. First, we divide government powers within a government. We call this mechanism separation of powers. We give one institution the power to make laws, another to enforce them, and still a third the authority to interpret and apply laws to legal disputes. The Founders hoped that this system would make for effective government that did good things. They also hoped the system would moderate the excesses of human nature. It would do so less by trying to remake human beings, something the Founders thought impossible and itself a temptation to exercise too much corrupting power. Instead, they hoped that they could channel human ambition, human love for power, in ways that offset one another. The branches would exercise checks and balances on their sister institutions. If one person or group gained too much authority, the others possessed means to keep us from falling into rule by one man or one group of persons.

But the rejection of one-man rule went beyond stopping moral vice from reigning. The Founders understood that brilliant humans come along from time to time. We were blessed during their time with a reservoir of such brilliance beyond a normal generation of human beings. Thomas Jefferson, Alexander Hamilton, and James Madison only scratch the surface of the number of great men who lived, thought, and acted in America’s fight for independence and her subsequent struggle to establish a lasting republic.

However, despite their best intentions, none of the Founders got everything right. They each had blind spots intellectually, as all humans do. Some even had moral ones to accompany the intellectual. However, we suffer little from those blind spots in our form of government. We do not because we do not have one founder. We have many. While some political communities had a first, sole lawgiver, we had the Continental Congresses and the delegates to the Convention of 1787. The Bible says that “iron sharpens iron.” So these men sharpened one another’s ideas, refining them in constructing our principles and our institutions. By that combined wisdom, they built a more just and a more lasting system of government. They did so in a way a Napoleon, ruling alone, could not.

That all said, we did have one man who towered above the rest during our Founding. That man was George Washington. He commanded our armies to victory in the Revolutionary War. He served as the unanimous choice of the country to be our first president. He could have been a Napoleon. He might have established himself as the only ruler of the country, making our system dependent on his person. He did not. Instead, he focused his mighty efforts always to build a system of government. He fought for principles that would outlive him and his generation. And, when he had finished his part of these tasks, he did what many found unthinkable: he gave up power. He returned to his home a citizen while the republic continued to operate without him.

This greatness we never saw in Napoleon. Upon his death, Napoleon is reputed to have said about France, “they wanted me to be their Washington.” In other words, they wanted him to exercise power, then willingly give it up for the country’s sake. This he did not do. It seems his own ambitions made such a choice impossible for him.

Each year, we celebrate our independence on the 4th of July. Let us express our thanks that we did not and do not live under a Napoleon, that we have and continue to reject rule by one person. And let us further celebrate our one indispensable man, the one who ruled and gave up that rule so his country would last. Let us celebrate our anti-Napoleon, our George Washington.

Adam M. Carrington is an Associate Professor of Politics at Hillsdale College. There, he teaches on matters of Constitutional law, American political institutions, and separation of powers. His writing has appeared in such popular forums as The Wall Street Journal, The Hill, National Review, and Washington Examiner. His book on the jurisprudence of Justice Stephen Field was published in 2017 by Lexington. Carrington received his B.A. from Ashland University and his M.A. and Ph.D. from Baylor University. He lives in Hillsdale with his wife and their two daughters.

 

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American Founding Observations of the French Revolution That Influenced the United States Constitution and Governing

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Guest Essayist: Daniel A. Cotter
Storming of the Bastille 1789 by Jean-Pierre Houël, French Revolution


While the drafting of the Constitution of the United States and the French Revolution overlapped, some of the wisdom and differences in the two revolutions help to explain a U.S. Constitution that is designed to prevent regime failure.

One element different between the two revolutions was geographic. Our American Revolution took place on our soil, far away and across the pond from our monarchy rulers, while the French Revolution took place within the country.

More fundamentally, the desired objectives were different in the two revolutions, and that in turn contributed to the ways in which the American Constitution contained provisions to address. The French focused on replacing or changing the existing government. The Americans, on the other hand, wanted to break away and form a government removed from Great Britain. With that in mind, starting with the Declaration of Independence, through the Revolutionary War, and culminating in the Constitution in 1787, the founding fathers inserted wisdom into the form of government and the United States Constitution to help prevent failures they observed in French government.

Learning also from the shortcomings of the Articles of Confederation, which were ratified in 1781 and remained in effect until the Constitution was ratified in 1789, the designers of the Constitution insisted upon branches and a robust system of checks and balances, something lacking in the French structure. The Federalist Papers #51 makes this of vast importance for consideration of the Constitution (emphasis added):

“TO WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. Without presuming to undertake a full development of this important idea, I will hazard a few general observations, which may perhaps place it in a clearer light, and enable us to form a more correct judgment of the principles and structure of the government planned by the convention. In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another. Perhaps such a plan of constructing the several departments would be less difficult in practice than it may in contemplation appear. Some difficulties, however, and some additional expense would attend the execution of it. Some deviations, therefore, from the principle must be admitted. In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them. It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices.”

Conclusion

The United States Constitution’s wisdom is shown in many ways, including with the checks and balances that exist in the Constitution. The careful drafting in 1787 has helped to ensure a continued Constitution that has separations of powers built in and that has ensured that, unlike France and the uncertainty of its revolution and subsequent history, our grand experiment continues 235 years later.

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

 

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Ou La Mort or Deliberation: The French Revolution and the American Revolution

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Guest Essayist: J. Eric Wise
George Washington enters NY City at British evacuation, Nov. 1783 after American Rev. War.https://en.wikipedia.org/wiki/American_Revolutionary_War#/media/File:Evacuation_Day_and_Washington's_Triumphal_Entry.jpg


The motto of the French Republic is Liberté, égalité, fraternité, meaning liberty, equality, brotherhood.

What’s not to like?  Pass the baguettes and butter.

It is derived from the motto of the French Revolution, which has a little something extra: Liberté, égalité, fraternité ou la mort.

Now, wait a minute.  That means liberty, equality, brotherhood or death.

The French Revolution distinguished itself in the final category of its motto. No sooner had the First Republic been created than an eruption of accusations of treason, anticlerical sentiment, massacres and public executions took place. Not satisfied to overturn the ruling caste that had governed from Versailles, and the chateaus and churches of France, the revolutionaries set about to kill them.

In France 1793, no less than 16,000 death sentences were handed down, and 10,000 were sent to prison to die there, in most cases without a trial. Ou la Mort became the Terror. Little explanation is needed as to why “ou la mort” is now gone from the national motto.

The United States took a very different path. That is not to say there were not hard feelings. When the fighting ended and the American Revolutionary War came to a close in 1783, some 70,000 loyalists were expatriated to Britain and the remaining North American British colonies in places like coastal Quebec Prince Edward Island, and Nova Scotia.  But they were not killed.

They were not even really persecuted. Always hungry for people, as soon as the loyalists left, the United States made efforts to recruit them back, supposing their industry and connections, harnessed in a spirit of reconciliation, could aid the new nation in finding its feet.

So, we ask ourselves, what was the difference between the French Revolution and the American Revolution that one should culminate in a river of blood and another in practical reconciliation and a compact, the United States Constitution, which has remained the charter of the new nation for 250 years?

The first place to look is the Declaration of Independence. The principles of the Declaration had percolated in American thought for 100 years or more before their expression in that revolutionary document.  As Calvin Coolidge noted in his famous July 4 speech,

“A very positive echo of what the Dutch had done in 1581, and what the English were preparing to do, appears in the assertion of the Rev. Thomas Hooker, of Connecticut, as early as 1638, when he said in a sermon before the General Court that—‘The foundation of authority is laid in the free consent of the people.’ ‘The choice of public magistrates belongs unto the people by God’s own allowance.’”

The American Revolution was rooted not in deduction from mere abstract principle but by a process of induction from a practice spanning several generations. No understanding of the principles of equality and rights to life, liberty and the pursuit of happiness could be easily twisted into a murderous rage as would happen in France.

We see this in the words of Federalist #1:

“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.”

The meaning of the abstract principles of the Declaration of Independence was universally understood to impose a requirement of deliberation, not execution of enemies, on the new government. It was so understood because that was the habit of the American people to think of it that way. They would no sooner leave the house without their pants than think to solve a political problem other than by organizing, deliberating and deciding by some method of majority rule.

The new Constitution which was to be adopted constituted a second appeal to necessity. The Articles of Confederation had been, truly, an abject failure. The country was unable to control debtor and creditor contests and its economy was moribund, a victim of both the violence of these disputes and the weakness of its central government.

However, the new nation chose not to turn upon itself and its various perceived internal enemies but to debate over a new Constitution, to be ratified by consent through a new ratification process, that was not contemplated by the Articles of Confederation, and in fact violated its express terms. In Federalist #40, Publius emphasizes the need to alter and abolish the dysfunctional government by a process of consent rather than force.

From this spirit, a new government was brought forth based on the notion of deliberation and consent, structured around mechanisms to harness the baser incentives of men to promote the habits of deliberative government.

When Benjamin Franklin identified the new form as “a republic, if you can keep it” he implied that the continual fostering and renewal of the habits of deliberative government was the spirit of the American Revolution and the essential ingredient for the continued success of the United States.

J. Eric Wise is a partner in the law firm of Alston & Bird.

 

 

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American Revolution Principles of Natural Rights Republicanism and Constitutionalism vs the French Revolution and the Reign of Terror

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Guest Essayist: Tony Williams
Edmund Burke, 1700s British statesman, economist, philosopher by Joshua Reynolds c1769https://en.wikipedia.org/wiki/Edmund_Burke#/media/File:EdmundBurke1771.jpg


At first glance, the American and French revolutions seem to be closely connected in an “age of democratic revolutions.” The sister revolutions seemed to challenge and undermine monarchy in favor of popular self-rule and liberty. More fundamentally, however, the revolutions’ contrasting views of human nature shaped differing political philosophies, regimes, and cultures.

The American Founders’ thinking about human nature and government was guided by differing strains of thought from ancient philosophy, the English tradition, the British Enlightenment, and Protestant Christianity. As a result, they developed a realistic understanding of vice and virtue, sin and goodness. As James Madison wrote in Federalist #51, “What is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary.”

The French revolutionaries followed the thinking of the more radical French Enlightenment and particularly that of Jean-Jacques Rousseau. Rousseau believed that humans were naturally good and perfectible but were corrupted by social institutions including absolute government, the churches, and urban society; human beings would only be free and enjoy their natural equality by tearing down those institutions.

As the Declaration of Independence indicated, the American Founders believed the Lockean idea that humans had natural rights such as life, liberty, and the pursuit of happiness and were capable of governing themselves in a republic. However, their corruptible nature meant that checks and restraints were necessary. As Federalist #51 asserted, “experience has taught mankind the necessity of auxiliary precautions.”

Influenced by the thinking of Montesquieu and by their experience under the Articles of Confederation, the Founders built in numerous auxiliary precautions into their United States Constitution to divide and constrain power and protect against human ambitions and passions. They included the principles of separation of powers, checks and balances, federalism, and bicameralism in constructing their novus ordo seclorum, a “new order for the ages.” But it was a new order built upon the history, experience, and wisdom of the past.

The French revolutionaries created a very different kind of government and consequently had a different outcome. They sought to break with the corrupt government and religious institutions of the past that preserved the privileges and wealth of the royal government, the feudal nobility, and the clergy. The monarchy survived for only a few years after 1789. It was limited by the Declaration of the Rights of Man and then by a republican constitution until Louis XVI was executed in early 1793. The national legislature was a government lacking a system of constitutional separation of powers and other principles. Instead, the one-house legislature served effectively the only branch of government that would surmise the “general will” of an enlightened people.

For statesmen like the British Edmund Burke, who wrote Reflections on the Revolution in France, the outcome was all too predictable early in the French Revolution. The violence erupted almost immediately as revolutionaries tore down the corrupt institutions of the past. The revolution began with the storming of the Bastille on July 14, 1789, attacking that symbol of political repression. Paris quickly became an armed camp while in the countryside, peasants went on a rampage against nobles and their feudal privileges murdering them, burning down their estates, and destroying their titles in the Great Fear that fall.

After closing the monasteries and plundering their wealth, the government made the clergy agents of the state with the 1790 Civil Constitution of the Clergy. In 1792, the revolutionaries broke into jails and murdered thousands of priests, nuns, and nobles in an orgy of bloodshed and drownings.

Hundreds of thousands died in a French civil war when government suppressed revolts in the Vendee, and millions died across Europe when the French revolutionaries went to war to spread the fire of revolution to tear down oppression everywhere.

Finally, Maximilien Robespierre and the Committee of Public Safety guillotined some 3,000 “enemies” in Paris and had as many as 50,000 executed throughout France during the Reign of Terror from 1793-1794. It was not an aberration but rather a logical outcome of the violence directed against the old regime from the start of the revolution.

American Founders and citizens were deeply divided about the French Revolution in the early republic. Most Americans initially praised the French Revolution as an outgrowth of the American Revolution. Toasts were made, parades were held, and tri-color hats were doffed.

However, the American reaction to the French Revolution contributed to the growing political and ideological divisions in the early republic that led to the development of political parties in the United States. Federalists and Democratic-Republicans split over the foreign policy issue.

Thomas Jefferson, who was an observer and sometimes participant in early revolutionary events in France as a diplomat, was the most ardent supporter of the French Revolution. Taken by radical French Enlightenment thinking, he enthusiastically praised the execution of Louis XVI as a “criminal” and wrote his shocking “desolation letter” while turning a blind eye to the Terror.

Jefferson shockingly wrote with no small amount of hyperbole: “The liberty of the whole earth was depending on the issue of the contest….[and] rather than it should have failed, I would have seen half the earth desolated. Were there but an Adam and Eve left in every country, and left free, it would be better than as it is now.”

Other Founders were more sober in their assessment. Alexander Hamilton wished, “Would to heaven that we could discern in the Mirror of French affairs, the same humanity, the same decorum, the same gravity, the same order, the same dignity, the same solemnity, which distinguished the course of the American Revolution.”

On the other hand, John Adams had also been a diplomat in France and other European countries during the 1780s and was less swept up in revolutionary currents in France. Adams’ political writings through the 1780s focused on constitutional balance in the separation of powers. As early as 1790, he predicted that the unicameral French legislature “must involve France in great and lasting calamities” since it was rooted in a flawed understanding of human nature and political philosophy.

The American and French Revolutions left a contrasting legacy for the modern world. The American Revolution and the principles of natural rights republicanism and constitutionalism served as an exceptional model for the world. The French Revolution unleashed the forces of secular nationalism that shaped the violent European twentieth century.

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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Upon a Need of Virtue to Self-govern: Penning a United States Constitution for a Free and Independent Nation

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Guest Essayist: Andrea Criswell
Gov. John Francis Mercer, Federal Convention Delegate from Marylandhttps://en.wikipedia.org/wiki/John_Francis_Mercer#/media/File:Gov._John_Francis_Mercer_-_Robert_Field_1803.jpg


When in the course of human life, it becomes necessary for a mother to dissolve the political bands between a child and their selfish ways, and to take full responsibility for civilizing her child and assume her powers within her home, the separate and equal station which the Laws of Nature and Nature’s God entitle them, a deep realization occurs, if she is not willing to bring virtue and civility to the next generation, no one will. This is the beginning of a republic, in each home. Ironically, this scenario leads the reader to believe that the mother is our government and the child is her citizens, and yet it is the other way around. The greatest attribute of the Constitution of the United States of America reflects her citizens as the parents, the givers of life, liberty and the pursuit of happiness.

How do people collectively provide for themselves liberty? An infrastructure, a culture valuing self-government is the only way. A republic at the core. As a human bears the image of their Creator in spirit and their parents in physical appearance, a republic mirrors its founders in the design of practical infrastructure as well as the “DNA” of heart and motive. In America, this “DNA” was the balance between tyranny and anarchy. Resembling homeostasis in the body, the boundaries given to the government by the Founders exemplified the potential for health for its people. Such is a republic, who welcomes this balance, not admonishing correction nor romanticizing chaos, experiences health and well-being.

Welcoming balance, the United States Constitution stands as a reminder that homeostasis can be achieved, not effortlessly, but attainable. It requires maturity to sustain the direction and maintain the right course. It requires self-government of individuals. Abstaining from the vices of power, the people directed by the Founders’ words stay the course. Imperfect men, who could not right all wrongs, understood that a virtuous nation required leadership from virtuous citizens. Three men considered, John Adams, Thomas Jefferson, and John Taylor of Caroline, were willing to protect the ramparts against the tyranny of England, for during their lifetime a government was born, one that would require maturing so that all its members, male and female, light skinned and dark skinned, Christian and non-Christian would find freedom on the same soil.

John Adams understood the unique situation in which they found themselves – to choose their own government. He passionately stated, “While I live, let me have a country, a free country.” It was this vision that defined his life. And yet, he was a Federalist, believing that “the greatest dangers to any polity came from unbridled democracy and an unrestrained aristocracy capable of becoming an oligarchy.” (1) He wanted a strong executive branch to steer the nation like a parent. In his “Discourses on Davila,” he recognizes both the need and the concern for ambitious men. As a republic, the people would parent, and yet Adams wrestled with the need for a strong head. Adams believed that America needed ambitious, determined men held in check by humility, to lead.

Thomas Jefferson understood that real power flows from the consent of the governed, as stated in The Declaration of Independence. A government, whose precedent is fundamental law, would simply reflect the will of the people. Without precedent, no other government in history had modeled natural law. So therefore, a prerequisite of government needed to be established, one in which divine law was part of the culture and understood by all. Believing that America needed a limited government, Jefferson’s greatest contribution was precision rhetoric, clearly communicating that the government would be limited through the state constitutions and the ratifying of the Constitution.

John Taylor of Caroline entered public service to uphold republican values. He did not agree with fixed social order, rather in popular sovereignty, the right each man possessed to govern himself. He was most concerned with a decline of virtue because of power, and held character as the sole anchor for the advancement of America. For Taylor, the laws of nature suggested political equality, and therefore all men were created equal. Defending freedom, Taylor focused on ending tyranny through his Anti-federalist semantics. Historically, there are those born to “hold a post” for others, while in their own right still very flawed. To his own demise Taylor profited from slavery, and while he considered it an evil, he did not consider ending slavery as part of popular sovereignty. Holding the post, Taylor believed America needed to be led by the laws of nature, sustaining personal sovereignty, and yet he did not have the revelation of sovereignty for all.

Disregarding the vision of Adams, the precision of Jefferson and the focus of Taylor would be to disregard the imperfect men who helped pen our most perfect document. The providential boundary lines of the Constitution recognize the need for a strong executive, legislative and judicial branch, all three balancing one another, and the Bill of Rights as the reminder that Congress shall not behave like an immature child. Although these men did not end slavery, they helped form the republic that would empower a people to do so. In the words of John Francis Mercer, a delegate to the Federal Convention from Maryland, said on the floor of the Convention, “It is a great mistake to suppose that the paper we prepare will govern the United States. It is the men whom it will bring into the government and interest in maintaining it that is to govern them. The paper will only mark out the mode and the form. Men are the substance and must do the business.” (2) Remarkable men, upholding a remarkable document, necessary then and now.

Andrea Criswell is a wife and mother of four, who teaches homeschool students in northwest Houston. A graduate of Texas Tech University and Asbury Theological Seminary, she teaches Christian Worldview classes, high school biology and a love for the United States Constitution. 

1. Taylor, James. “John Adams: Life Before the Presidency.” Miller Center, https://millercenter.org/president/adams/life-before-the-presidency. Accessed 20 May 2022.

2. Corwin, Edward S. “Thomas Jefferson and the Constitution.” CORE, https://core.ac.uk/download/pdf/217205672.pdf. Accessed 20 May 2022.

 

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Keeping a Republic: America’s Founders on the Role of Public and Private Virtue

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Guest Essayist: Gary Porter
"A republic, Madam, if you can keep it."


Nations rise and nations fall. Some would call this the cycle of life, writ large; others would simply offer that nothing is certain beyond death and taxes, certainly not the perpetuity of a nation. We are 235 years into this experiment in self-government we call the United States, and we’ve outlasted the average age of a republic, barely.[i] Some would thus suggest we are living on borrowed time. Are we? The Roman Republic lasted nearly 500 years (509 BC to 27 BC). Is it likely or even possible that ours will as well?

Alexander Fraser Tytler, aka Lord Woodhouselee (1747-1813) was a Scottish historian and professor at the University of Edinburgh. He identified stages which all societies will inevitably experience. A society will proceed “from bondage to spiritual faith; from spiritual faith to great courage; from courage to liberty; from liberty to abundance; from abundance to selfishness; from selfishness to complacency; from complacency to apathy; from apathy to dependence; from dependence back into bondage.” Not a very encouraging prediction.

If this is a true prediction of the life of a society (and I don’t suggest it necessarily is) it is tempting to place our American experiment somewhere on this timeline, perhaps we are currently progressing “from abundance to selfishness.” Whether America is “past its prime” has been the subject of debate for quite a while.

Certainly, there are clear signs of decline in America, but is this part of a predictable, inevitable cycle or is this a merely transitory observation?

America’s Founders certainly hoped their work would not be short lived. At the Constitutional Convention, John Dickinson had drafted an address to the delegates – which he appears to have never delivered – reminding them that: “We are not forming plans for a Day Month Year or Age, but for Eternity.” An eternity? Really? Would the proposed new plan of government they had labored over for four months even be given a chance at life? Nine states would have to ratify; would they?

A Republic, if you can keep it,” Benjamin Franklin’s immortal retort, suggests the Founders believed a republic was incapable of “keeping” itself, that human effort was required; but what sort of effort? By whom? How often?  So much uncertainty.

One point they seemed to be in agreement on, one ingredient they believed was necessary for a nation’s longevity was virtue, both public and private. The Founders said this innumerable times in innumerable ways. A sampling:

“…[N]o free government, or the blessing of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles.” George Mason, Virginia Declaration of Rights, Section XV [1776].

“Public virtue cannot exist in a nation without private, and public virtue is the only foundation of republics. There must be a positive passion for the public good, the public interest, honour, power and glory, established in the minds of the people, or there can be no republican government, nor any real liberty: and this public passion must be superiour to all private passions.” John Adams to Mercy Warren, 1776.

“Is there no virtue among us? If there be not, we are in a wretched situation. No theoretical checks, no form of government can render us secure. To suppose liberty or happiness without any virtue in the people, is a chimerical idea. If there be sufficient virtue and intelligence in the community, it will be exercised in the selection of these men. So that we do not depend on their virtue, or put confidence in our rulers, but in the people who are to choose them.” James Madison, Speech in the Virginia Ratifying Convention, June 20, 1788.

“[A] free government, which of all others is far the most preferable, cannot be supported without virtue.” Samuel Williams, A Discourse on the Love of our Country, 1774.

“It is certainly true that a popular government cannot flourish without virtue in the people.” Richard Henry Lee to Colonel Martin Pickett, March 5, 1786.

“It is substantially true that virtue or morality is a necessary spring of popular government. The rule, indeed, extends with more or less force to every species of free government. Who that is a sincere friend to it can look with indifference upon attempts to shake the foundation of the fabric?” George Washington, Farewell Address.

But before we go further, let’s ensure we have a common definition of the word “virtue.”

Webster’s 1828 American Dictionary of the English Language, the go-to guide for founding era definitions, contains ten different definitions of “virtue.” The one I believe the Founders most often had in mind, the third in Webster’s list, read:

“Moral goodness; the practice of moral duties and the abstaining from vice, or a conformity of life and conversation to the moral law. In this sense, virtue may be, and in many instances must be, distinguished from religion. The practice of moral duties merely from motives of convenience, or from compulsion, or from regard to reputation, is virtue as distinct from religion. The practice of moral duties from sincere love to God and his laws, is virtue and religion. In this sense it is true,”

If this “moral goodness” or “virtue” was so important to the success of a popular government, how was it to be instilled or created in the people?

First, by inspiring it in the people: “The only foundation of a free Constitution, is pure virtue, and if this cannot be inspired into our people, in a greater measure than they have it now, they may change their rulers, and the forms of government, but they will not obtain a lasting liberty.” John Adams, to Zabdiel Adams, 1776.

Second, through the education of children:

“Wisdom and knowledge, as well as virtue, diffused generally among the body of the people, being necessary for the preservation of their rights and liberties, and as these depend on spreading the opportunities and advantages of education in the various parts of the country, and among the different orders of people, it shall be the duty of legislators and magistrates … to cherish the interest of literature and the sciences, and all seminaries of them.” John Adams, Thoughts on Government, 1776.

“A Bible and a newspaper in every house, a good school in every district–all studied and appreciated as they merit–are the principal support of virtue, morality, and civil liberty.” Benjamin Franklin.

“It is an object of vast magnitude that systems of education should be adopted and pursued which may not only diffuse a knowledge of the sciences but may implant in the minds of the American youth the principles of virtue and of liberty and inspire them with just and liberal ideas of government and with an inviolable attachment to their own country.” Noah Webster, On Education of Youth in America, 1790.

“Since private and publick Vices, are in Reality, though not always apparently, so nearly connected, of how much Importance, how necessary is it, that the utmost Pains be taken by the Publick, to have the Principles of Virtue early inculcated on the Minds even of children, and the moral Sense kept alive, and that the wise institutions of our Ancestors for these great Purposes be encouraged by the Government. For no people will tamely surrender their Liberties, nor can any be easily subdued, when knowledge is diffusd and Virtue is preservd. On the Contrary, when People are universally ignorant, and debauchd in their Manners, they will sink under their own weight without the Aid of foreign Invaders.” Samuel Adams letter to James Warren, November 4, 1775.

Some parents took their educational responsibility quite seriously: “Our Little ones whom you so often recommend to my care and instruction shall not be deficient in virtue or probity if the precepts of a Mother have their desired Effect, but they would be doubly inforced could they be indulged with the example of a Father constantly before them.” Abigail Adams to John Adams, May 7, 1776.

Third, through their churches:

“It is the duty of the clergy to accommodate their discourses to the times, to preach against such sins as are most prevalent, and recommend such virtues as are most wanted. If publick spirit is much wanted, should they not inculcate this great virtue?” John Adams, Novanglus, no. 4.

Virtue was perishable; it needed to be continually “refreshed”: “When we are planning for posterity, we ought to remember that virtue is not hereditary.” Thomas Paine, Common Sense, 1776.

But even the best-laid plans to inculcate virtue in the people were not expected to have complete success, and the design of government must account for this: “A fondness for power is implanted, in most men, and it is natural to abuse it, when acquired.” Alexander Hamilton. “The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse.” James Madison, Speech in the Virginia Constitutional Convention, 2 December 1829. Even the most virtuous among them was to be watched for signs of moral decay: “The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust.” James Madison, Federalist No. 57, 1788.

Americans today have lost sight of the idea of virtue; it is not taught in public schools, our government would like to count on it, but seems afraid to even mention the word, and our churches are fast joining the ranks of those who insist all truth is relative including moral truth. Violent crime is generally rising, private property disrespected and voices in the public square are becoming increasingly strident. If John Adams was right, that “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other,” there will come a time in this country, perhaps not long off, when the Founders’ Constitution will simply prove ineffective in governing us. There is still time to avoid that outcome, but it will require the conscious efforts of patriots across this great land.

“A people may prefer a free government; but if from indolence, or carelessness, or cowardice, or want of public spirit, they are unequal to the exertions necessary for preserving it; if they will not fight for it when directly attacked; …they are more or less unfit for liberty.” John Stuart Mill

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 periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter @constitutionled.

[i] Alexander Fraser Tytler, aka Lord Woodhouselee, calculated the average term of a republic to be 200 years.

 

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America’s Founders on Virtue as Fundamental to Republican Government

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Guest Essayist: Joerg Knipprath
John Adams, author of “A Defence of the Constitutions of Government of the United States of America” and principal drafter, Massachusetts Constitution of 1780.


“Virtue” and “republic” have long been connected to each other among philosophers of politics. The connection was frequently asserted in the rhetoric of Americans during the founding. Indeed, it was while states were writing constitutions that these ideas were more rigorously investigated and an increasingly sophisticated understanding emerged. The most widely read source on the experiences of republics and the importance of virtue was Plutarch’s Lives, which contained the biographies of Greek and Roman statesmen. Many intellectuals also read primary sources, such as Aristotle, Cicero, and Polybius, and interpreters of those sources, such as Machiavelli, Montesquieu, and various 18th century English political essayists. These investigations led to a political conundrum. Most Americans believed that mankind’s actions were driven by base desires, such as avarice, gluttony, and lust. Yet the success of republics had always been said to rest on public virtue, the requirement that the rulers and the people overcome their passion for personal gratification and act for the benefit of the community, “res publica.” Moreover, the wisdom received from ancient writers postulated that public virtue was derived from private virtue. The task became to reconcile this tension between private passions and republican virtue.

Three ideological theories of republicanism emerged, with attendant differences in their conceptions of private and public virtue and the connection between them. These three conceptualizations had significant geographic roots. One was an American version of classic republicanism, which might be called puritan republicanism. It is “positive” republicanism. The proponents looked to the firm hand of government to promote both aspects of virtue, private and public, and to insure their continued interrelation. It was founded in the religious tradition and political experience of New England communities, although its influence was not confined there. One of the best exponents of that tradition and its republican significance was John Adams.

Another was agrarian republicanism, which coalesced somewhat later, and was rooted in the experience of the South, especially its largest and wealthiest state, Virginia. Agrarian republicans also accepted the need rigorously to inculcate private virtue, but they were less optimistic about the conviction that private virtue assured public virtue. At the very least, they were skeptical that sufficient public virtue might be realized among those who would gain political influence. That skepticism was particularly acute when the matter became who would control the distant general government and thus be most removed from effective supervision by the people.

Best, then, not to rely on virtue among the rulers, but to look for other means to limit their ability to cause harm to the republic. If private virtue of the ruler or the people was inadequate to assure public virtue, the rulers’ self-interest must be channeled to serve the public good. James Madison worked out these ideas in his constitutional ideology, which found its way into basic structures in the United States Constitution. Madison was not alone, and he was not the most rigorous expositor of agrarian republicanism. That title goes to John Taylor of Caroline.

A third approach was national republicanism, represented by Alexander Hamilton as its most prominent ideological proponent and George Washington as its leading public figure. In many ways their views complemented those of the agrarians that private virtue was a necessary but also a regrettably flawed guardian of the success of republics. However, there was a crucial difference. Government would have a much more active role in using incentives to create conditions through which republican virtue of the public sort might be fostered. Moreover, republican virtue was not limited to those connected to the land, but extended to those engaged in commercial and even manufacturing enterprises. Hamilton, after all, was not part of the landed gentry, like Adams, or the Southern planter class, like Taylor. National republicanism was based in the emerging commercial centers, especially those of the mid-Atlantic states.

John Adams’s major work on constitutional government and republicanism was A Defence of the Constitutions of Government of the United States of America, a treatise on the emerging American constitutionalism with its emphasis on checks and balances of governmental powers. But Adams was also a prolific writer of letters to numerous correspondents. Many years before he wrote in his 1798 response to the Massachusetts militia, “Our government was made only for a moral and religious people,” he wrote to the chronicler of the period Mercy Otis Warren that republican government could survive only if the people were conditioned “by pure Religion or Austere Morals. Public Virtue cannot exist in a Nation without private, and public Virtue is the only Foundation of Republics.” Sounding the theme of positive classic republicanism, he continued, “There must be a positive Passion for the public good, the public Interest, Honor, Power, and Glory, established in the Minds of the People, or there can be no Republican Government, nor any real liberty.” [Emphasis in the original.]

In light of man’s fallen nature and his helpless soul’s inclination to sin, a firm hand was needed. Hence, three New England states had an official church, the Congregational Church, heir to the Puritans. Moreover, a Stoic virtue of private simplicity and public duty was cultivated, not the least by intrusive sumptuary laws. Such laws, passed in the name of protecting the people’s morals and sometimes dressed up in broader cloaks of liberty and equality, restricted various luxuries and excessive expenditures on jewelry, clothing, victuals, and entertainment. Adams, in his 1776 book Thoughts on Government, touted the benefits of such laws, “[The] happiness of the people might be greatly promoted by them….Frugality is a great revenue, besides curing us of vanities, levities, and fopperies, which are real antidotes to all great, manly, and warlike virtues.”

The historian Forrest McDonald, in his invaluable book Novus Ordo Seclorum, provides details about the constitutional and statutory sources of such laws. For example, Article XVIII of the Massachusetts Bill of Rights urged a “constant adherence” to “piety, justice, moderation, temperance, industry and frugality [which] are absolutely necessary to preserve the advantages of liberty.” Legislators and magistrates must exercise “an exact and constant observance” of those principles “in the formation and execution of the laws.” None other than John Adams had drafted that document in the Massachusetts convention. Other states had similar provisions. At the Philadelphia Convention, George Mason of Virginia sought to grant Congress the power to enact sumptuary laws, but his proposal was defeated.

Adams also lauded laws that resulted in the division of landed estates, because he perceived such laws as promoting relative equality of property ownership. Adams termed it the “mediocrity of property” on which liberty depended. This sentiment, drawn from an ancient republican pedigree, put him in good company with American republicans of other stripes. Indeed, “agrarian republicans” were, if anything, even more militant than Adams in their adoration of land ownership as the bulwark of republican virtue and personal liberty. Thomas Jefferson spoke for most Americans in his 1785 book Notes on the State of Virginia, when he declared that “those who labor in the earth are the chosen people of God if ever He had a chosen people, in whose breasts He has made His peculiar deposit for substantial and genuine virtue.” He expressed similar views in other writings. During the debate over the subsequent Louisiana Purchase during his administration, Jefferson was able to overcome his constitutional qualms with the satisfaction that the United States had acquired sufficient land to guarantee its existence as a republic of yeoman farmers and artisans for many generations hence.

As a theorist of agrarian republicanism, Jefferson was thin gruel compared to John Taylor, a Virginian planter, lawyer, and politician, who served off-and-on as Senator. To distinguish his branch of the family, Taylor is usually referred to by his birthplace, Caroline County. The aphorism “That government is best which governs least,” has often been attributed to Jefferson, although it appears first in Civil Disobedience by Henry David Thoreau in 1849. If, however, one might at least grant Jefferson the same sentiment, this aphorism even better describes Taylor’s philosophy. In particular, his 1814 book An Inquiry into the Principles and Policy of the Government of the United States sets out a systematic philosophy for land as the basis for personal happiness and republican vitality. Land gives its owners sustenance and trains them to self-reliance, which produces independence, which, in turn, is the source of liberty. A key to maintaining that independence is the right to keep arms.

The (mostly) Southern agrarian republicans shared with their (mostly) New England classic republican compatriots a belief that widely-shared land ownership is most conducive to private virtue. However, they parted ways on the connection between private and public virtue as crucial to the survival of republican government. Taylor wrote, “The more a nation depends for its liberty on the qualities of individuals, the less likely it is to retain it. By expecting publick good from private virtue, we expose ourselves to publick evils from private vices.” While a republican system, as a whole, is strongest when it rests on a broad base of a virtuous and civically militant citizenry, it is risky to rely only on that condition to produce virtuous politicians. Homo politicus is better known for seeking power for personal gain and influence over others than for personal sacrifice and care for the general welfare. As described by the modern school of “public choice” theory, politicians are self-interested actors, whose actions are best explained by their number one goal, to get re-elected. In addition, the puritan approach of an intrusive government which would police private behaviors raised red flags for the agrarians.

Taylor and other agrarians distrusted government generally, but the more removed from direct and frequent popular control officials were, the greater the danger to the republican form. The good news was that sufficient public virtue could be produced even if, for whatever reason, private virtue was lacking in those who would govern. To that end, it became incumbent on those who framed constitutions to recognize the inherently self-interested nature of politicians and to harness that self-interest through constitutional structures which would simultaneously authorize and limit the power of government officials of all types. Politicians would “do the right thing” not because they were sufficiently trained to private virtue, but because it would serve their own self-interest in preserving their positions.

Taylor’s prescription was not novel. The Scottish philosopher David Hume began his 1742 essay, “Of the Independency of Parliament,” by declaring, “Political writers have established it as a maxim that, in contriving any system of government and fixing the several checks and controls of the constitution, every man ought to be supposed a knave and to have no other end, in all his actions, than private interest. By this interest we must govern him and, by means of it, make him, notwithstanding his insatiable avarice and ambition, cooperate to public good.” The works of the charismatic and often controversial Hume were well known to educated Americans.

James Madison expressed these sentiments in a famous passage in Number 51 of The Federalist:

Ambition must be made to counteract ambition. The interest of the man must be

connected to the constitutional rights of the place…. In framing a government

which is to be administered by men over men, the great difficulty lies in this:

you must first enable the government to control the governed; and in the next

place oblige it to control itself. A dependence on the people is, no doubt, the

primary control on the government; but experience has taught mankind the

necessity of auxiliary precautions.

Those “auxiliary precautions” were the structural checks and balances in the Constitution.

Various historians have noted the importance of Taylor’s contributions to American political theory, even lauding him as in some ways the best which America has produced. Although his vision was republican, it may better be characterized as a branch of classical liberalism or liberal republicanism. Note that the term “liberal” does not have the current political connotation. Unlike today’s version, the classic liberalism emerging during that period was directly tied to the individual’s liberty to live free from state-enforced mandates beyond the minimum needed for social stability.

Taylor was not the first skeptic about the classic Aristotelian and Ciceronian connection between private and public virtue reborn in the puritan republicanism of John Adams. The history of 18th-century Anglo-American ideas reveals influential predecessors, such as Bernard de Mandeville and, as mentioned earlier, David Hume. Mandeville wrote his satirical Fable of the Bees in 1705, a famous parody of English politics of the time. In the poem, he describes a thriving colony of bees, where each individual bee seeks to live a life of luxury and ease, a sentiment not disagreeable to Taylor’s Southern planter class. But this prosperous existence comes to an end when some of the bees begin to denounce the personal corruption caused by luxury and to call for a life of simplicity and virtue to be imposed. Many bees die, their hive becomes impoverished, and they live in a hollow tree, “blest with Content and Honesty.” He concludes,

Bare Virtue can’t make Nations live,

In Splendor; they, that would revive

A Golden Age, must be as free,

For Acorns, as for Honesty.

In short, personal vices, such as greed and ambition, generate public virtue of industriousness and prosperity. Similar ideas also infused the writings of an important contemporary of the American founders, the political economist Adam Smith.

Even more than Taylor, it was the adherents of an emerging “national republicanism” who agreed with Mandeville, Hume, and Smith. Although all persons are driven by their passions, not all passions are the same. Some, especially those who already have material riches, might be gripped by a simple desire for fame or honor, or by love of country. Moreover, a properly constructed constitution, produced by those few motivated by such nobler passions, might harness the baser passions of lesser politicians towards the public good. The men who met in Philadelphia for the specific purpose of drafting the Constitution might qualify as men whose primary, if not sole, passions were fame and love of country. For most, no immediate financial gain or personal political success was to be gained. Indeed, contrary to the progressive theory advanced in the early 20th century by the historian Charles Beard that economic self-interest was the driving force behind the Constitution’s adoption, it is well-established that delegates voted in favor of proposals which would, if anything, hurt their financial interests.

Such “good” passions, although they manifested a self-interest, also produced the public virtue necessary for republican government. It produced policies for the general welfare and in the interest of the public. The problem, of course, is that all politicians—and, indeed, bureaucrats of all kinds—routinely claim to be driven by a passion for public service, and that their policy proposals are in the public interest. A multitude of unelected non-governmental organizations and litigious law firms also claim the title “public interest.” Alas, to consider, for instance, who benefits from pay-outs in the typical class-action lawsuit, the reality rarely matches the professed public virtue. One never hears a politician say that a policy, no matter how nefarious and self-rewarding, is done for anything other than the noblest public purpose. Rare even is a politician as honest as the 19th-century New York Tammany Hall leader George Washington Plunkitt. He famously distinguished between “dishonest” and “honest” graft and was frank about his practice of the latter. Dishonest graft meant working solely for one’s own interests. Honest graft was to work for one’s own wealth, while simultaneously furthering the interests of one’s party and state.

The big problem, then, for the national republicans was to constrain those politicians who would in fact hold political offices for a longer time and with less-defined objectives than those who drafted the Constitution. George Washington had long and carefully cultivated the public image of the man driven solely by a passion for honor. Whatever his motives in his private actions, such as, for example, acquiring huge tracts of land, Washington in his public life appears to have been driven by his concern about the public’s perception of him as a man of honor. Forrest McDonald and numerous other historians have painted the picture of a man who might be said to have “staged” his public life. Washington was deeply affected throughout his life by Joseph Addison’s play Cato about the Roman republican statesman Marcus Porcius Cato (“the Younger”). Cato, a committed Stoic, was famous for his unrelenting honesty.

But Washington was a rare specimen of homo politicus. The national republicans’ plan for more run-of-the-mill politicians was similar to that of the agrarians, to rely on one measure of citizen virtue and another measure of constitutional structure to produce public virtue from politicians driven by private passions. Unlike the agrarians, they were convinced that a strong national government must be a part of that structure. On that point Hamilton and at least the 1787 version of Madison could agree. Hamilton and the national republicans parted ways with Madison, and with Jefferson and the more resolute agrarian republicans such as Taylor, by enthusiastically embracing the role of manufacturing and banking in promoting public virtue.

Jefferson’s ideal republic of yeoman farmers and artisans, comprising a large middle class possessed of a rough equality of means, had little room for manufacturers, and none for bankers and other jobbers dealing in phantom “wealth.” Manufacturing, when combined with commerce, the fear went, would necessarily soon lead to two anti-republican results. One was a love for material luxury; the other was a life of drudgery for the impoverished masses. The history of the ancient Roman Republic was a vivid cautionary tale. Taylor and the agrarians accepted the benefit of commerce within their preferred system of political economy, because it facilitated the export of products from the agricultural South and the importation of manufactured goods from abroad. But, in a preview of the South Carolina Nullification Crisis of the 1820s and ‘30s, this required free trade. Like most Southerners, Taylor was a committed free trader and suspicious of any national government regulation of economic matters, especially tariffs.

The agrarians’ fear of manufacturing tied into a general belief among political writers going back to antiquity that political systems evolve and, ultimately, decay. Entropy is inevitable in politics as much as physics. Agriculture may be the most desirable occupation, but, sooner or later, the limited productive land area is fully occupied, as New England was discovering. People would flock to cities where manufacturing would become their occupation. As Adam Smith described the effect on people, “the man whose whole life is spent in performing a few simple operations, of which the effects are, perhaps, always the same … generally becomes as stupid and ignorant as it is possible for a human creature to become ….” This fate stood in sharp contrast to that of the farmer, artisan, and merchant, who must possess broad knowledge and understanding of many activities. If this process was inexorable and made those human brutes unfit to practice private virtues, it also made the demise of the republic inevitable. Even Benjamin Franklin believed in the dangers from this progression, which puts his remark to his interlocutor, “A republic, madam, if you can keep it,” in yet another light. It also explains the urgency which Jefferson and other agrarian republicans felt about the westward expansion of territory and the opening of western land to agricultural settlement needed to forestall this threat to republican governance.

At the conclusion of the passage quoted above, Adam Smith extended a saving hand. After all, he was not opposed to either manufacturing or banking as sources of wealth. The evils of a poor and brutish urban working class would happen, “unless the government takes some pains to prevent it.” Smith had his views of what that might be. In any event, Hamilton, as an enthusiastic believer in Smith’s ideas, agreed that wealth was not fixed, and that even a personal profit motive can contribute to the public welfare. Investing in new processes and useful products and services is a public benefit. Thus, actions of the manufacturer and even the banker exemplify public virtue, whether or not they are driven by self-interest. He, like Adam Smith, believed that private wealth-producing activities qualified as private virtue. While others might not go that far, Hamilton successfully advocated the connection between such activity and the public virtue needed to maintain republican government.

Having established that manufacturing and banking could be “virtuous” in the public sense, there remained the need to foster them in order to ameliorate the conditions of poverty which would threaten republican government. After all, if enough wealth is created for all, “poverty” ceases to be objective and becomes relative. A rising tide floats all ships. At least from a material standpoint, owning a car and various electric and electronic devices today, living in an abode with air conditioning, and having clean water, basic sustenance and medical care, are vastly better than the experiences of past generations.

Hamilton and his supporters believed that their strong national government was the best mechanism to adopt policies which would foster the growth of wealth. Hamilton’s later program in his four reports to Congress between 1790 and 1795 on the public debt, a national bank, and manufactures, laid out in considerable detail his plans to that end. These sophisticated reports were a monument to Hamilton’s intellect and experience applied to the economic problems of the early United States.  They had such potency, and were so hotly contested, that they precipitated the First American Party System of Federalists and Jeffersonian Democratic-Republicans and made Hamilton in effect the dominant figure of American politics in the 1790s.

It should be noted in conclusion that all republicans—classic puritan, agrarian, and national—opposed democracy. Even those delegates and political leaders who at one point had been most favorable towards broad public participation and involvement in politics, were shaken by Shays’ Rebellion in Massachusetts. That event in 1786 had created much tumult and political chaos and was put down by an army raised by the state. It was very much on the minds of the attendees at the Philadelphia convention. Some of the most vociferous detractors of the Constitution as insufficiently “republican” were also the harshest critics of democracy. For them, Shays’ Rebellion exposed the danger of relying on private virtue to provide the public virtue necessary for republican self-government. James Madison spoke for them all when he opined in Number 10 of The Federalist about the inadequacy of democracies to promote public virtue:

[Such] democracies have ever been spectacles of turbulence and contention; have

ever been found incompatible with personal security, or the rights of property;

and have, in general, been as short in their lives, as they have been violent in their

deaths. Theoretic politicians, who have patronised this species of government,

have erroneously supposed, that, by reducing mankind to a perfect equality in

their political rights, they would, at the same time, be perfectly equalized and

assimilated in their possessions, their opinions, and their passions.

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

 

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The United States Constitution as a Bill of Rights

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Guest Essayist: Gary Porter
Bill of Rights of the United States Constitution


“For why declare that things shall not be done which there is no power to do?” writes Alexander Hamilton in Federalist 84. “[B]ills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted.”

“The Constitution can stand alone as a ‘Bill of Rights’” was Hamilton’s clear message here. Many of America’s Founders held to that view and the Founders were no slouches, so we would expect to find some substance to the claim. If the Framers indeed designed a United States Constitution of “limited and enumerated” powers, as Madison claimed in remarks during the Virginia Ratifying Convention, where was the fear of government infringement on individual freedoms to be found?

Indeed, in several places in the Constitution we find particular individual rights given explicit protection. For instance, in Article 1, Section 9 we find Congress specifically denied power to create bills of attainder, ex post facto laws and suspend the “Privilege of the Writ of Habeas Corpus.” Similar restrictions against the states are found in the next section of Article 1. The states are further required to protect your right of contract in the same section. In Article 3, we find the fundamental right of trial by jury preserved for “all Crimes, except in Cases of Impeachment.” “All Privileges and Immunities of Citizens in the several States” are guaranteed/protected in Article IV. But what do these consist of? The Constitution gives us no clue and, while the Supreme Court had an opportunity to provide an answer in the past[i] they demurred, so we are left to ponder the extent of this protection. As regards congressmen and congresswomen, a limited form of freedom of speech, at least while engaged on the floor of Congress, is found in Article 1, Section 6, where a companion protection from arrest is also located.

But that is about it as far as specific individual rights protections are concerned in the seven articles which make up the original Constitution. Where is the explicit protection of speech, or religion, of conscience, of the right to keep and bear arms, etc.? Hamilton’s answer of course would be: “where is the government given power in the Constitution to intrude upon any of those rights? The weight of Hamilton’s and Madison’s argument must rest then on the Constitution actually being, and, more importantly, remaining, a limited powers document. It is quite clear from the journals of early Congresses that congressmen routinely considered the Constitution to limit the powers of government.

The 1st Congress refused to approve a loan to a glass manufacturer in Georgetown after some members charged it was unconstitutional. A member in the 3rd Congress (1794) proposed $15,000 for relief of French refugees who fled from insurrection in San Domingo to Baltimore and Philadelphia. Third-term Congressman James Madison rose to object, saying, “I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents.” The 4th Congress (1796) turned down a request for relief to the citizens of Savannah, GA, after a fire burned down nearly a third of the city. On his last day as President in 1817, James Madison famously vetoed what today we would call an Infrastructure Bill,[ii] stating: “it does not appear that the power proposed to be exercised by the bill is among the enumerated powers [of the Constitution].

Has Madison’s view persisted? The following should be shielded from sensitive eyes.

Beginning principally in the Progressive Era and accelerating in the New Deal Era, the effort to expand the powers of the federal government has enjoyed great success. In 2010, then Congressman Peter Stark of California famously declared that “Yes, the federal government can do most anything in this country.” The picture has not improved much in the last twelve years.

Thanks to decisions in 1936[iii] and 1937,[iv] the Supreme Court gave Congress the power to spend money on anything it could justify in its own “mind” as supporting the general welfare of the United States.  Madison warned in 1792 that this sort of interpretation of the General Welfare Clause would turn the “limited powers” Constitution into “an indefinite one subject [only] to particular exceptions.”[v] The 1937 Supreme Court had a different idea and today, Madison’s observation that “Charity is no part of the legislative duty of the government”[vi] is considered a quaint relic of a bygone era.

In 1942,[vii] the federal government was given the power to regulate nearly all aspects of business in the U.S. since only a miniscule connection to “interstate commerce” was necessary. In 1968,[viii] the Court cleared the way for Congress to delegate its exclusive law-making power[ix] to executive branch agencies. This has resulted in a veritable flood of “regulations with the force of law” which impact our individual lives in myriad ways and the compliance of which are estimated to add $2 Trillion dollars to the cost of doing business in this country, a cost passed on to you and me in the form of increased prices for goods and services.

The Anti-federalists warned of the immense power being given this new central government,[x] yet I doubt they foresaw the magnitude of the federal power-grab we continue to experience today. Even the addition of a discrete Bill of Rights in 1791, while affording important individual rights protections, has not been enough (what does “shall not be infringed” mean?) Hamilton’s hope that the Constitution could stand alone as a Bill of Rights was hopelessly utopic. A Bill of Rights has proved absolutely necessary, but not alone sufficient to curtail the continuing federal power grab.

In conclusion, for the U.S. Constitution to have stood alone as a protector of individual, God-given, unalienable rights, as Hamilton wished, was in hindsight incredibly naive. One important feature of the original document needed to survive: limited powers, and it didn’t. Various groups with a decidedly different view of the purpose of government, assisted by a Supreme Court which from time to time shared their view, have successfully changed the fundamental nature of our wonderful Constitution from one of limited and enumerated powers to one of near plenary power. Taking advantage of the ambiguity of words and the concept of a “Living Constitution,” these forces have succeeded in creating a government which today intrudes into nearly every aspect of our private and corporate lives. The “demise” of the Tenth Amendment has been widely recognized by both Left and Right.[xi]

What is to be done? Must we simply acknowledge this sea change in the Founders intent to “secure the blessings of liberty to ourselves and our posterity” and learn to live with Leviathan? That is certainly one option – one allowing us to live relatively peaceful if increasingly controlled lives. The other response requires action, commitment and purpose. We must rouse ourselves and our neighbors, educate society to the problem we face and the inevitable endstate should we remain on this path, and proceed methodically to repair the damage to this inspired document. The Supreme Court can be an ally in this project, if an originalist majority can be kept in place long enough to reverse key decisions. But that could take decades, perhaps scores of years. The more logical approach is one the document itself gives us: amendment.

Congress will never take action to reduce the immense power they have been given by the aforementioned SCOTUS decisions; that much, I hope, we can agree upon. But a carefully worded amendment defining “commerce” and placing limits on the interpretation of the Interstate Commerce Clause could. No power-reducing amendments will ever emanate from the Congress and be sent to the states for ratification. So, we face precisely the situation Colonel George Mason of Virginia warned of on September 15, 1787, as the delegates considered the, at that time, single method of amending the Constitution. “No amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive (Madison writes in his Notes), as he (Colonel Mason) verily believed would be the case.” Adopted “nem con” (i.e., unanimously) was a second method of proposing amendments: the states could meet in convention to consider and propose amendments.

It seems to this writer that the solution to the problem of Leviathan is at hand, given us expressly for the situation we now face: congressional intransigence. Will we grasp it or allow individual freedoms to inexorably slip away?

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 periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

[i] Notably in what became known as the Slaughterhouse Cases.

[ii] https://millercenter.org/the-presidency/presidential-speeches/march-3-1817-veto-message-internal-improvements-bill.

[iii] United States v. Butler, 297 U.S. 1 (1936).

[iv] Helvering v. Davis, 301 U.S. 619 (1937).

[v] “If Congress can do whatever in their discretion can be done by money, and will promote the general welfare, the Government is no longer a limited one possessing enumerated powers, but an indefinite one subject to particular exceptions. It is to be remarked that the phrase out of which this doctrine is elaborated, is copied from the old articles of Confederation, where it was always understood as nothing more than a general caption to the specified powers, and it is a fact that it was preferred in the new instrument for that very reason as less liable than any other to misconstruction.”

[vi] James Madison, Speech in the House of Representatives, January 10, 1794.

[vii] Wickard v. Filburn, 317 U.S. 111 (1942).

[viii] Mistretta v. United States, 488 U.S. 361 (1989.

[ix] “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”

[x] https://mises.org/library/antifederalists-were-right

[xi] https://mises.org/power-market/who-killed-10th-amendment.

 

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Indispensable Contents of a Bill of Rights for the United States Constitution: Federalist and Anti-federalist Perspectives

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Guest Essayist: Eric Sands
United States Constitution showing the first page with Article I, with the Bill of Rights and American Flag


The Constitutional Convention has been referred to as the “Miracle in Philadelphia” and there is a great deal of justice to that label. The delegates to the convention faced long odds in reaching compromise on a new form of government. But in many respects, writing the United States Constitution was only half the battle; the delegates then had to get it ratified. This proved to be a difficult task and required the assistance of some of the leading minds in the country to convince the American people to accept the new document.

These proponents of ratification were known as Federalists and included men such as Alexander Hamilton, James Madison, John Jay (collectively known as “Publius”), James Wilson, George Washington, Gouverneur Morris, John Marshall, and Benjamin Franklin. These men were nationalist in their orientation and believed that a stronger national government was a necessary corrective for the defects in the Articles of Confederation. Opposing these Federalists were the Anti-federalists who argued against ratification, or at least counseled serious modifications to the Constitution’s design. Among the most prominent Anti-federalist writers were Patrick Henry, Melancton Smith, and authors writing under pseudonyms such as Cato, Brutus, Centinel, and Federal Farmer. These men advocated for a confederal form of government where most of the power would be held in the hands of the states.

The Anti-federalist arguments generally fell into two categories. The first was pursuing structural changes in the Constitution itself to limit the power of the national government. During the public debates, Anti-federalists raised numerous objections to the Constitution and pointed out that the power being ceded to the national government was a danger, not just to the states, but to the people. The Anti-federalists, for example, argued that too much power was being given to the president and that he could become a monarch. This was especially true given his infinite re-eligibility. The Anti-federalists complained that the Constitution blended powers too much and needed to adhere to a much stricter principle of separation of powers. They feared that the Supreme Court would become an all-power government tribunal and proposed presidential commissions that could overturn bad judicial decisions. Congress’ power was seen as too extensive and needed to be scaled back. Limits needed to be put in place governing Congress’ control over the state militias and federal elections, and there was an overarching fear about how much power Congress might subsume under the necessary and proper clause. Finally, the Anti-federalists harbored deep suspicions that a republican form of government could work over a territory and with a population as large as the United States. Conventional wisdom of the day held that republics could only be successful in a small territory with a small and relatively homogenous population. A republic on the scale of the United States had no historical precedent and the Anti-federalists believed it could not work.

As enlightened as some of the Anti-federalist objections to the Constitution were, structural changes were not in the cards. All the Anti-federalist amendments introduced at the ratifying conventions were defeated. A large part of this defeat was owing to the efforts of the Federalists to get their defenses of the Constitution into print and the larger number of newspapers that supported ratification. However, the Anti-federalists had a second category of arguments that proved far more successful. These arguments revolved around the lack of a bill of rights in the Constitution. The lack of a bill of rights seemed to them to be particularly egregious given how much power was being given to the national government. Thus, in numerous essays, the Anti-federalists complained about a need for specific protections like freedom of speech, press, religion, assembly, petition, and possession of arms. Most of these rights were guaranteed to the people at the state level, so it made little sense that the people’s rights should be less secure at the national level.

Federalists initially countered these arguments in a couple of ways. In Federalist 84, for example, Hamilton argued that the Constitution should be allowed a trial period before alterations were made. There may be several things the American people want to change five or ten years down the road, so make the changes then when a judgment can be made about whether they are necessary. Second, the structure and design of the Constitution already protected rights through separation of powers, checks and balances, enumerated powers, and republicanism. Any attempt to infringe on personal rights would never be able to survive this gauntlet of obstructions. Finally, a bill of rights could endanger rights because it would only include certain specified rights, leaving others unprotected. It would also imply that rights come from government and that it alone chooses which rights to recognize.

Despite this defense of not including a bill of rights in the Constitution, the American people remained unpersuaded, and the Constitution stood a real chance of not being ratified because of this defect. Eventually, however, the Federalists gave in, and several of their most prominent members made promises that a bill of rights would be on the agenda of the First Congress. With this promise in place, ratification moved forward, and eleven states initially joined the Union (Rhode Island and North Carolina did not ratify until later).

The first national elections were a disaster for the Anti-federalists with them winning only a few seats in the House and the Senate. The landslide victory for the Federalists had cooled Federalist opinion about the need for amendments. Some speculated that the promise made to the people could be safely ignored, while others argued that some vague, superficial amendments would likely suffice. James Madison, however, stood up for a bill of rights. Having made a personal campaign pledge to produce a bill of rights to his constituents, Madison made repeated efforts to get the bill on the legislative agenda. When that did not work, he presented a formal proposal of amendments he thought should be introduced into the Constitution. Still, Federalists were not enthusiastic about his proposal and likely would have never allowed the bill to move forward had Madison’s not received Washington’s endorsement, which Washington articulated in his inaugural address. Once the federal revenue system was completed, the Federalists finally got around to Madison’s amendments.

Anti-federalists, though few and far between, used the opportunity to start making their own proposed amendments to change the structure of the Constitution. But they were voted down every time, with antagonism between the two sides becoming so heated that congressmen challenged each other to duels. In the end, Madison’s patience and his willingness to compromise helped move the amendments along. Congress did not adopt all the amendments, and the language of others was altered, but that was the price Madison had to pay to see the amendments submitted to the states. On December 15, 1791, enough states ratified the Bill of Rights to formally make the ten amendments part of the Constitution.

Eric C. Sands is Associate Professor of Political Science and International Affairs at Berry College. He has written a book on Abraham Lincoln and edited a second volume on political parties. His teaching and research interests focus on constitutional law, American political thought, the founding, the Civil War and Reconstruction, and political parties. 

 

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Purpose for a Bill of Rights in the United States Constitution

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Guest Essayist: Tom Hand
Fifth, Second and First Constitutional Amendments with gavel


The first ten amendments to the United States Constitution, better known as the Bill of Rights, are what allow us to enjoy many of the day-to-day blessings of our great country. Freedoms easily taken for granted are enshrined in these revisions to the original document. While the Constitution shaped our government, the Bill of Rights shaped our lives.

These amendments include both individual freedoms such as the right to keep and bear arms, free speech, freedom of the press, and freedom to worship as we please, as well as restrictions on the power of the federal government.

You might wonder why these basic freedoms had to be added to the Constitution after it was created rather than being front and center in the debates at the Constitutional Convention. The reason can be found in considering the mission of the convention.

Specifically, when the Constitutional Convention met in Philadelphia in the summer of 1787, the delegates’ primary goal was to fix the weaknesses in the Articles of Confederation and, thereby, form a system of government that would allow the country to flourish.

Consequently, most of the discussion at the convention focused on the form of government and how it would operate, not on the individual rights of the people. Although the representatives met from May 14 to September 17, no motion to adopt a Bill of Rights for the citizens of the country was introduced until September 12 when George Mason of Virginia did so.

Mason’s suggestion was quickly dismissed and, looking back, it seems surprising that something as crucial as a bill of rights was not subject to lengthy debate. However, we must keep in mind each state already had their own constitution, many of which contained a bill of rights.

As James Madison noted in his essay Federalist 46, the new federal constitution did not eliminate those rights granted by the states. Since personal rights already existed at the state level, Madison argued there was no need for the federal government to guarantee them as well.

From a more practical standpoint, the delegates needed to get home. They were not full-time politicians who made their living on the government payroll. They were mostly doctors, lawyers, businessmen, and farmers. Time away from home cost them money and, quite naturally, after being in hot, steamy Philadelphia for four months, they did not want to extend the convention for several more weeks to discuss such a contentious topic.

Soon after the proposed Constitution was circulated to the state legislatures for approval in late 1787, it came under criticism for several perceived faults, but primarily for its lack of a bill of rights. The group opposing the new Constitution became known as “Anti-federalists” and were led by Elbridge Gerry of Massachusetts and George Mason.

Gerry published a widely circulated letter, dubbed “Hon. Mr. Gerry’s Objections,” in which he stated his reasons for not supporting the new Constitution. As he saw it, “the liberties of America were not secured by the system” and it was flawed “without a bill of rights.”

Alexander Hamilton responded in Federalist 84 that “the constitution is itself in every rationale sense, and to every useful purpose, a bill of rights.” He added that by ratifying the Constitution “the people surrender nothing, and as they retain everything, they have no need of particular reservations.”

There was also concern that, by listing only certain rights, it could be implied that those were the only ones guaranteed by the new Constitution and any others not mentioned were not. In other words, explicitly stating any rights might actually reduce our freedom.

Although the proposed document was quickly ratified by five states (Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut), it bogged down in other state legislatures primarily due to the absence of a bill of rights. In Massachusetts, the impasse was broken when Anti-federalists, led by John Hancock and Samuel Adams, agreed to ratify the proposed Constitution on the condition that a bill of rights would soon follow.

The Federalist minorities in the Maryland and Virginia assemblies facing similar opposition, also agreed to establish a bill of rights rather than risk delaying the ratification of the Constitution. This spirit of compromise kept the process moving.

On June 21, 1788, New Hampshire became the ninth state to approve the proposed Constitution. As a result, Congress formally ratified it on September 13, 1788, with an enactment date of March 4, 1789. One hurdle had been cleared.

The challenge now was to craft a bill of rights that would be acceptable to the thirteen states. James Madison of Virginia, an early opponent of a bill of rights and a member of the House of Representatives, eventually changed his position on the matter and led the effort to develop one that would satisfy the Anti-federalists.

Madison’s initial effort recommended nine changes to the body of the new Constitution rather than additional articles. However, the Federalists saw this attempt to modify the original text they had so recently ratified as a mistake. They argued these changes might undermine the credibility of the new document.

Instead, the House of Representatives, swayed by the arguments of Roger Sherman, agreed to place all amendments at the end of the Constitution. On September 25, 1788, after much debate, the House and Senate jointly agreed to twelve proposed Articles as additions to the document and forwarded them to the states for their approval.

On December 15, 1791, Articles Three through Twelve were ratified by Congress and became the first ten Amendments to the Constitution, our Bill of Rights. Interestingly, Article Two dealing with Congressional pay raises was not approved until 1992 as the 27th Amendment and Article One dealing with the number of seats in the House has never been approved.

So why should the Bill of Rights matter to us today?

Quite simply, life as we know it in the United States of America would not be the same without the rights stated in our first ten amendments. Try to imagine a country without religious freedom or the right to say what we want. Or a place where the government could search your home without cause or deny you due process of law.

The Bill of Rights matter to all of us every day we live in this great country of ours. We must know and understand our rights as Americans, or we can never hope to preserve them. It is truly our shared responsibility.

If you want to learn more about your Bill of Rights, I suggest reading Akhil Reed Amar’s book The Bill of Rights. Published in 1998, this book is an excellent account of our Bill of Rights, including the history behind their creation, how the interpretation of them has evolved, and how they are linked to one another.

Tom Hand is creator and publisher of Americana Corner. Tom is a West Point graduate, and serves on the board of trustees for the American Battlefield Trust as well as the National Council for the National Park Foundation. Click Here to Like Tom’s Facebook Page, Americana Corner. Click Here to follow Tom’s Instagram Account.

 

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Toward a More Perfect Union: Correcting the Articles of Confederation Through the United States Constitution

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Guest Essayist: Gary Porter
Signing of the Constitution - Independence Hall in Philadelphia on September 17, 1787, painting by Howard Chandler Christy, on display in the east grand stairway, House wing, United States Capitol.


Shay’s Rebellion was a “wake-up” call for all Americans. The armed closure of a duly constituted court was a drastic step. But these were drastic times. The war with Britain, though favorably concluded for the Americans, had left the economies of the states in shambles. The Confederation Congress found itself powerless to intervene. By the summer of 1786, farmers were unable to find a market for their crops or meet their tax obligations; without hard cash they were unable to make their mortgages or loan payments. The courts, with little recourse but to uphold the law, were foreclosing on farmers who only a few short years before had been fighting for their country’s independence. On August 31, 1786, ex-Revolutionary War Captain Daniel Shays, now himself a bankrupt farmer, lead an armed mob to the Northampton, Massachusetts court and forced it to close. But Massachusetts was not alone: Pennsylvania’s James Wilson observed that “The flames of internal insurrection were ready to burst out in every quarter.”  Mutinies of soldiers in New York, New Jersey and Pennsylvania fed the anxiety. Political cartoons began to appear in American newspapers mocking Congress. Leading men began calling for amendments to, or even replacement of, the Articles of Confederation.

In April 1786, Rufus King wrote to Elbridge Gerry: “We are without money or the prospect of it in the Federal Treasury; and the States, many of them, care so little about the Union, that they take no measures to keep a representation in Congress.”[i]

Three years before, Henry Knox had complained to Gouverneur Morris: “As the present Constitution is so defective, why do not you great men call the people together and tell them so; that is, to have a convention of the States to form a better Constitution.”[ii]

Finally, the pleas for change were heard, there would be a “Grand Convention” to “fix things” once and for all. Alexander Hamilton and James Madison were elated. Their quiet work behind the scenes had paid off.

In Hamilton’s view “The fundamental defect is a want [lack] of power in Congress.”[iii] He had tried numerous times to have the Articles amended, to no avail. George Washington complained of “a half-starv’d, limping Government.”[iv]

Madison was determined not to waste the opportunity the convention afforded. First, he would place the Articles under his scholar’s microscope and identify each of its defects. Madison was in a unique position to undertake this analysis: he had represented Virginia from 1780-1783 in the Confederation Congress and had seen from that vantage its inherent weakness. Following this, he had served the next three years in the Virginia Assembly, seeing the problems caused by the Articles from that perspective. Returning once again to a seat in the Confederation Congress in the Spring of 1787, Madison sat down at his desk before setting out for Philadelphia and wrote “Vices of the Political System of the United States.” These would become the “cautions” that a new government must avoid. Hopefully it would become a government actually empowered to govern.

All but the last of the twelve “bullet points” Madison set down in “Vices” were accompanied by elaborating commentary. For instance: “Failure of the States to comply with the Constitutional requisitions,” the first complaint, was explained as an “evil” which “has been so fully experienced both during the war and since the peace, [which] results so naturally from the number and independent authority of the States and has been so uniformly exemplified in every similar Confederacy, that it may be considered as not less radically and permanently inherent in, than it is fatal to the object of, the present System.”

While Madison was careful to identify the “effects” of the deficiencies of the Articles, he did not focus on its numerous structural defects:

  • The Articles created only a unicameral Congress. In 1774, the Continental Congress had simply “come together” without much thought of being a permanent fixture. Governments of history had often included a Senate, but where would the authority to add a Senate to the Congress come from, even if the advantage was obvious? By 1787, however, all of the states had adopted bi-cameral legislatures in their state constitutions. While this example was adopted by the convention, it is generally regarded as one of many compromises. (See Article 1)
  • There was no Supreme Court. With Congress lacking the authority to create a supreme legal body, conflicts between states were assigned to ad hoc committees to resolve. Without an enforcement arm, committees were limited to recommending solutions, relying on the good will of the states to carry out their recommendations. (See Article 3)
  • There was no true chief executive function. Beyond keeping order in the Congress, the President had little power to do much else. Enforcing the laws passed by Congress? Not in the President’s obligations. (See Article 2)
  • The amendment process effectively guaranteed no amendments. The Articles required state unanimity before an amendment was adopted. In practice, this proved self-defeating since in every case a single state could (and did) object and thus the suggested amendment came to a grinding halt. (See Article 5)

All of these defects were corrected in the new Constitution.

The standard meme today is that the Articles were discarded in their entirety and a “brand-new” document substituted. But while the structure of government adopted at the Grand Convention was indeed new, not every feature of the Articles was abandoned; the following clauses and provisions were retained, some nearly verbatim:

  • The “privileges of trade and commerce” enjoyed by the citizens of each state were preserved, reworded as the privileges and immunities clause of the Constitution. (See Article IV, Section 2)
  • The power to extradite fugitives. (See Article IV, Section 2)
  • The “Full faith and credit clause.” (See Article IV, Section 1)
  • “Freedom of speech and debate in Congress” was retained as was immunity from arrest. (See Article I, Section 6)
  • The prohibition against treaties, confederations, or alliances between the states without the consent of the Congress. (See Article I, Section 10)
  • Congress’ exclusive war-declaring power. (See Article I, Section 8)
  • Congress’ exclusive authority to issue letters of marque and reprisal and punish “piracies and felonies commited (sic) on the high seas.” (See Article I, Section 8)

At the Virginia Ratification Convention on June 5, 1788, Edmund Pendleton would sum up the Articles thusly: “Our general government was totally inadequate to the purpose of its institution; our commerce decayed; our finances deranged; public and private credit destroyed: these and many other national evils rendered necessary the meeting of that Convention.”

The genius of fifty-five “demigods” would find solutions to the various defects of the Articles of Confederation, would create the “more perfect union” the men sought and that America deserved, yet all this genius depended on one final institution: a virtuous people. As John Adams reminds us: “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”[v] If this constitutional republic is to survive, if the republic is to be “kept,” the result is in the hands of “We the People.”

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 periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

[i] Rufus King to Elbridge Gerry, April 30, 1786

[ii] Henry Knox to Gouverneur Morris, Feb 21, 1783.

[iii]  Alexander Hamilton to James Duane, 3 Sept. 1780.

[iv] George Washington to Benjamin Harrison, 18 Jan. 1784.

[v] To the Officers of the First Brigade of the Third Division of the Militia of Massachusetts, October 11, 1798.

 

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Articles of Confederation, Designing a United States Constitution, and Empowering a National Government While Preventing a Tyranny

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Guest Essayist: Tony Williams
Articles of Confederation, George Washington, 1787


At the end of the Revolutionary War, many Americans had great hopes for a politically and economically prosperous future for their independent nation. In June 1783, General George Washington took a moment to reflect on the state of America and offer some advice to his fellow citizens to preserve its future.

In his Circular Letter to the States, Washington wrote that the “lot which Providence has assigned us” was blessed with “the Establishment of our forms of Government; the free cultivation of Letters, the unbounded extension of Commerce, the progressive refinement of Manners, the growing liberality of sentiment, and above all, the purse and benign light of Revelation.” For Washington and others, the American founding occurred during an “auspicious period.”

The reality of the 1780s, however, rarely matched such optimism. The economy suffered a recession at a time of heavy public and private debt. The states passed tariffs on each other’s trade and nearly went to war over these trade disputes. Several states violated the 1783 peace treaty. They violated the property rights of Tories and the rights of conscience of religious dissenters with unjust laws.

The Articles of Confederation offered few solutions to the problems that plagued the new nation. The national government lacked the power to tax or regulate interstate trade. The principle of separation of powers was largely absent as the government did not have an independent executive or judiciary nor a bicameral legislature. The national government failed to respond militarily to crises such as Shays’ Rebellion.

While most acknowledged that the new republic suffered problems of governance, they differed as to the proper remedies to those difficulties and the exact character of the national Union. These contrasting views were seen in the Confederation period, at the Constitutional Convention, and during the ratification debates between Federalists and Anti-federalists.

The Anti-federalists, admitted throughout the period, the Confederation government had a few problems. Nevertheless, they thought that a few reforms were sufficient to solve the problems. The proposed New Jersey Plan at the Constitutional Convention added greater powers of taxation and trade regulation to national powers but did little to alter the basic framework of government.

The Anti-federalists defended this basic line of thinking and opposed the significant increase of powers in the national government in the new Constitution. For example, the first letter of Brutus warned that the proposed government was dangerously consolidated and threatened the liberties of the people. They believed that they were the real “federalists” because they supported the principle of federalism with a better balance between state governments and the national government.

Brutus was concerned that the Constitution would destroy the Confederation and thereby change the very nature of the Union. The Necessary and Proper Clause and the National Supremacy Clause, Brutus explained, granted virtually unlimited powers to the national government and effectively annihilated the state governments as they were “barely necessary to the organization of the general government.” Brutus also appealed to Montesquieu’s view in Spirit of the Laws that republican governments can only survive in small territories.

The Federalists, on the other hand, sought to expand the powers of the central government and argued that a stronger government would actually do a better job than the Confederation government at protecting liberty. They defended the new government and believed that the powers of government had to be redistributed in favor of the national government.

James Madison was one of the leading voices of the Federalists who propagated this new view. Before the Convention, Madison penned the Vices of the Political System, which detailed the evils that beset the Confederation. He thought, “The great desideratum in Government is such a modification of the sovereignty as will render it sufficiently neutral between the different interests and factions to control one part of the Society from invading the rights of another, and, at the same time, sufficiently controlled itself from setting up an interest adverse to that of the whole society.” In other words, the main goal was to empower the national government without creating a tyranny.

With this in mind, Madison developed the Virginia Plan that laid the basis for debates early in the Convention. While he did not get everything he had wanted in the Constitution, Madison was one of the main proponents of the Constitution as one of the three authors of the Federalist essays under the pseudonym Publius and at the Virginia ratifying convention.

In Federalist #39, Madison explained, “The proposed Constitution, therefore, even when tested by the rules laid down by its antagonists, is, in strictness, neither a national nor a federal Constitution, but a composition of both.” He thought this delicate balance would help make possible a government in a large republic. In his innovate political science in Federalist #10 and Federalist #51, Madison argued that liberty would be better protected in a large republic because contending interests would prevent unjust factions from introducing majority tyranny.

The vigorous deliberation during the American founding demonstrated that while the founders on both sides of the argument concurred on the ends of government, they differed on the best framework of government to achieve those ends. Americans have continued to debate the relationship of the national government and the states according to the federal principle throughout the history of the country to the present day.

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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From the Articles of Confederation and Perpetual Union to a United States Constitution

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Guest Essayist: Tom Hand
Articles of Confederation and Perpetual Union, Page 1https://en.wikipedia.org/wiki/Articles_of_Confederation#/media/File:Articles_page1.jpg


The Articles of Confederation and Perpetual Union was our nation’s first constitution and essentially served as the basis for our government from 1777 to 1789. It was created by the thirteen original states to help them unify their war efforts against England and was the precursor to our present Constitution.

In June 1776, soon after the Second Continental Congress appointed the Committee of Five to draft the Declaration of Independence, Congress also established a committee to craft a document by which this new country would be governed. Comprised of one delegate from each colony and chaired by John Dickinson of Pennsylvania, these thirteen men presented their initial draft to Congress on July 12, 1776.

They named it the Articles of Confederation, suggesting a fairly loose coalition rather than one united entity. Although the states agreed to form a national government, they were not willing to cede any of their individual rights or powers to it.

After much debate and five different versions, the Articles were finally approved by Congress on November 15, 1777, and immediately sent to the various states for their ratification. Although official approval of the document required all thirteen states to ratify it and the thirteenth state (Maryland) did not do so until February 2, 1781, the Articles effectively guided Congress’ action from 1777 onward.

The Articles stressed the rights of the individual states more than the power of the central government. As Article II states, “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated.”

Additionally, the states viewed this association as a group of co-equals and there was no consideration given for the size, wealth, or population of the various colonies. As articulated in Article V, “In determining questions in the United States in Congress Assembled, each state shall have one vote.”

Article IX entrusted several responsibilities to the Confederation Congress such as dealing with Indian nations and foreign affairs to include making treaties, declaring war, and making peace. However, the Article also required “nine states assent” to virtually anything Congress wanted to do. Given the sessions were lightly attended by the delegates, quorums were often difficult to attain which made passing any new legislation even more challenging.

Interestingly, Article XI expressly allowed for the addition of Canada to our confederation if that colony so chose. That fact indicates how precarious was England’s hold on our northern neighbor in the minds of Americans in the 1770s. Finally, as Article XIII states “the Union shall be perpetual” which meant that joining the compact was permanent and there was no recourse for leaving the Union.

The Articles of Confederation as approved created an amazingly weak central government. One might ask why the states would take the time to form a national government at all if the one they designed was powerless and ineffective. It is important to remember state sovereignty was paramount to virtually all political leaders in early America.

As the move towards independence gained traction in 1776, states codified freedoms in their own state constitutions that had been denied to them under King George and Parliament. With each state already guaranteeing liberties to all citizens, there was no need or desire to create a powerful entity at the federal level to ensure them.

This extreme focus on state’s rights is understandable when one considers how the original colonies had been established. Rather than the eastern seaboard being populated by the English all at once, the various colonies had been settled separately and independent of the others. Naturally, each colony jealously guarded its autonomy.

The inherent weakness of the federal government, and the danger that posed, became clear as the American Revolution got underway. Although its provisions authorized the central government to regulate and establish an Army, it lacked the power to enforce its decrees. While Congress could request funding and troops from the states, all money and men would only be forthcoming if the states agreed to the requests. Not surprisingly, most requests were ignored.

This lack of funding and men almost proved the undoing of the Continental Army which, of course, would have meant the end of our effort to win independence. As General George Washington wrote to George Clinton from Valley Forge in February 1778, “For some days past, there has been little less than a famine in camp.” He went on to write, “When the fore mentioned supplies are exhausted, what a terrible crisis must ensue.”

Unfortunately, funding for the army only got worse after we secured our independence. With the threat from England largely ended, the national army shrank to a skeletal force that attempted without much success to protect the western borders from Indian attack. Additionally, because of this military impotence, the United States could not compel England to abandon its forts in the Northwest Territory as called for in the Treaty of Paris.

The Articles also expressly denied Congress taxation authority. Consequently, the central government was constantly short of cash and unable to pay its bills. Congress printed more money, but this only served to devalue the currency. To make matters worse and national finances more confusing, the individual states had the right to print their own currency as well.

Another flaw was the lack of an executive branch. Although the men who presided over the Continental Congress were called “President,” they had no power, and many served in that position for less than a year. Most delegates had seen too much of King George and monarchy to be willing to entrust significant authority in one central figure.

These issues aside, the Articles of Confederation deserves some credit. For one thing, it was our first constitution, and with it we survived the American Revolution and six years beyond.

The Articles also granted the Confederation Congress the authority to establish an efficient system for expanding the new nation. Its provisions for new territories and how to settle them as seen with the Northwest Ordinance of 1787 proved to be a boon in the decades that followed.

So why should the Articles of Confederation matter to us today? Perhaps the greatest blessing of the Articles was its flaws. Our nation’s leaders were able to see and learn early on what we needed in a central government for our country to succeed.

While we feared a powerful Federal government, we realized one that was powerless would ensure our demise. The recognition that we needed to balance these two concerns led to the changes our Founding Fathers incorporated into our Constitution.

If you want to learn more about the Articles of Confederation, I suggest reading “We Have Not a Government: The Articles of Confederation and the Road to the Constitution” written by George Van Cleve. Published in 2017, it is an excellent account of the troubles resulting from the weakness of the Articles and how those troubles led to the creation of our Constitution.

Until next time, may your motto be “Ducit Amor Patriae,” Love of country leads me.

Tom Hand is creator and publisher of Americana Corner. Tom is a West Point graduate, and serves on the board of trustees for the American Battlefield Trust as well as the National Council for the National Park Foundation. Click Here to Like Tom’s Facebook Page, Americana Corner. Click Here to follow Tom’s Instagram Account.

 

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Laboring Over Ingredients for Good Government: America’s Founding Generation on Drafting Early State Constitutions

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Guest Essayist: Gary Porter
U.S. Bill of Rights


Before I begin this discussion, I should like to highlight two books which cover this topic quite well, in far more detail than I can include here: The First American Constitutions, by Willi Paul Adams, first published in 1973 in Germany, later, in 2001 in the U.S., and The Origins of American Constitutionalism, published in 1988 by Donald S. Lutz. Both are well-written, well-documented and well-worth your time.

We tend to view the American War for Independence in simplistic terms: parliament overreached; the colonies balked, declared their independence, fought a war to secure that independence, and went on to establish a unique written Constitution “of the people, by the people and for the people.” But as any historian knows, the story is more complicated. While the later part of the 1700s, at least in America, was indeed dominated by the War for Independence, “[t]he last three decades of the eighteenth century were a time of extraordinary political experimentation and innovation,” [i] writes Donald Lutz, and the American Revolutionary War “just happened” to occur during that extraordinary time.

The U.S. Constitution has at various times and by various writers been called the product of the Enlightenment, Classical Greek philosophy, Protest theology, the Hebrew Republic, English common law and English Whig political theory, and some of its roots can easily be traced to these predecessors; but many overlook its connections to the first state constitutions. “The early state constitutions contributed significantly to the development of [the] constitutional principles [found in the U.S. Constitution].”[ii] “Anyone who will lay the Federal Constitution side by side with the State Constitution of Massachusetts (adopted in 1780) and with the State Constitution of New York (adopted in 1777) will be startled by the extent to which the members of the Federal Convention not only followed the principles, but used the exact phraseology of those State documents.”[iii]

By 1787, when fifty-five men met in Philadelphia to “render the federal Constitution adequate to the exigencies of the Government and the preservation of the Union,”[iv] all but two of the thirteen states had already set in place a new state constitution.[v] Of those fifty-five men, almost half (26) had served in their state legislatures, including participating in the drafting of their state’s new plan of government.

References to numerous state constitutional provisions were made during the “Grand Convention.” One of the last being on September 12th, just five days before the Constitution was completed and signed.  Virginia delegate, George Mason, rose to point out that the absence of a Bill of Rights in the draft they were then considering was a matter of great concern. “It would give great quiet to the people (to have a Bill of Rights); and with the aid of the State declarations, a bill might be prepared in a few hours.” Colonel Mason, you may recall, had been the chief architect of the Virginia Declaration of Rights of 1776; thus, he was eminently qualified and experienced to draft yet another declaration.  But Mr. Roger Sherman of Connecticut then rose to point out that “The State Declarations of Rights are not repealed by this Constitution; and being in force are sufficient.” A motion was made to establish a committee to draft a bill of rights, but the motion failed 0-9, and the delegates went on to put the final touches on the document they had labored over for four long months.

But let’s step back a bit in time and review what prompted this “extraordinary political experimentation and innovation.”

Rising tensions between Great Britain and the American colonies had led to the suspension of state assemblies in Massachusetts, New York, Virginia. Other Royal Governors simply fled their posts. Leaving a society without government and/or leadership invites anarchy. Thomas Jefferson complained of this in the Declaration of Independence:

He (i.e., the King) has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

Without their state assemblies in operation and to mitigate “the dangers of invasion from without, and convulsions within,” Committees of Correspondence, Committees of Inspection and Committees of Safety became shadow state governments. Eventually, provisional assemblies were formed and these sought advice from the Continental Congress, which began meeting in September 1774.

The State of New Hampshire figures prominently in America’s constitutional history: their ratification of our U.S. Constitution on June 21, 1788, was the ninth and final ratification necessary to put the document into effect. The subsequent ratifications, by Virginia, New York, North Carolina and Rhode Island, only ensured those states would be participants in the new union rather than bystanders. But few Americans today know that New Hampshire was also the very first colony to enact a new constitution, on January 5th, 1776, a full seven months before the united colonies declared their independence in Philadelphia. New Hampshire had asked the Congress for permission to do so in the Fall of 1775, even suggesting that Congress draft a standard state constitution that each state would then adopt. Congress debated this but decided that there were so many differences in the state governments that had evolved over a hundred or more years that a “one size fits all” approach would simply not work. Congress finally gave New Hampshire and South Carolina the “go-ahead” on November 3rd, 1775.

South Carolina followed New Hampshire’s lead with a new provisional constitution of their own on March 26, 1776. On May 4th., Rhode Island unilaterally declared its independence from Great Britain without finding it necessary to establish a new plan of government; their original charter, stripped of its monarchical references, would serve adequately.

Two days later, Virginia began the fifth in a series of conventions.  Meeting in Williamsburg, the delegates approved a Declaration of Rights on June 12th and their new constitution on June 29th.

Noting the actions of New Hampshire, South Carolina, and Rhode Island, and perhaps trying to “get ahead of the curve,” the Continental Congress on May 10th approved a circular to the thirteen colonies encouraging any of the colonies who had not yet done so to form new provisional governments. After adding a preamble on 15 May, the circular was sent. [vi] On July 2, 1776, the same day Richard Henry Lee’s resolution for independence was approved in the Congress, New Jersey ratified its new constitution.

All but one of the remaining states approved new constitutions within a year: Delaware (September 11, 1776), Pennsylvania (September 28, 1776), Maryland (November 8, 1776), North Carolina (December 14, 1776), Georgia (February 4, 1777), and New York (April 20, 1777). Connecticut, like Rhode Island, decided its existing charter provided an adequate government. Other than Rhode Island and Connecticut, Massachusetts became the last state to adopt a new constitution, in 1780.[vii]  In the years that followed, several states updated or replaced their provisional constitutions.

As each colony-turned-state began drafting their new constitution they drew upon, in Virginia’s case for instance, the experience of more than 100 years of self-governance. Each colony had an elected assembly, either unicameral or bicameral, a court system, and a Royal Governor appointed by the King but usually also advised by a Governor’s Council. By 1773, however, the aforementioned committees were governing towns and counties, and soon nearly all the colonies had established provincial congresses acting outside royal authority.[viii]

Despite their practical experience in governing, the states found constitution-making from scratch a relatively new, untested process. What features of their colonial government should they retain, which should be modified or abandoned altogether? Hanging over all this constitution-making were the Articles of Confederation. For nearly four years (November 1777 – March 1791) the Articles lacked the unanimous consent they needed to be in official operation, yet there was a war afoot; no time to wait for Maryland to come on board; Congress had no choice but to act as though the Articles were ratified. How well would these new state governments work with the Confederation Congress?  Not well at all as it turned out. But the blame should be placed on the Articles, not the states.

The Continental Congress continued to function as a rudimentary, unicameral central government under the Articles of Confederation, yet in 1776-77, as the states drafted their new plans of government, the confederation’s more glaring deficiencies were yet to be revealed. What did the states come up with?

  • First, what should we call this thing? Although the nomenclature shift from “charter” to “constitution” was slow and inconsistent, eventually all states settled on some variation of that term; Virginia, Maryland, and North Carolina termed their initial document “The Constitution or Form of Government”; Pennsylvania: a “Plan or Frame of Government”; Delaware: “The Constitution or System of Government”; Georgia: “Rules and Regulations for the Future Government of the State.”
  • Division of the government into three distinct branches (most of the thirteen State constitutions had this feature). Virginia’s constitution reads: “That the legislative and executive powers of the State should be separate and distinct from the judiciary.”[ix]
  • Checks and balances. “They had encountered evil or unfortunate conditions in the past, in their royal and State governments; and they planned now to avoid a renewal of those conditions by adopting theories to fit the circumstances. So far from intending each of the three branches to be wholly coordinate, they decided to curb any excess of power in any one branch by balancing it with an effective power in another. Where they had experienced an evil in an omnipotent Legislature, they checked it; where they had actually felt the oppression of a too strong Executive, they checked him; where they believed a Court had been too independent, they checked it.”[x]
  • The Franchise. Generally, men (and in some states, women) who owned a certain minimum amount of property could vote. Pennsylvania enfranchised any male who paid taxes.
  • Elective Government. All states established direct popular elections for at least the Lower House of the legislature, with annual elections being the rule. Ten states also chose annual elections for the Senate, whether by the people or the lower house. Eleven states instituted annual elections of the governor, in three states directly or indirectly by the people, in the others by the legislature. Interestingly, South Carolina set a net worth requirement for their governor, the only state to do so.
  • The Legislature. While most colonies had operated with a unicameral legislature up until independence, often augmented by a Governor’s council, all but one state chose a bicameral legislature for their new constitutions, with Pennsylvania being the lone exception (Pennsylvania joined the bicameral states fifteen years later).
  • The Executive. In a rejection of powerful royal governors appointed by the King, the states, at least Initially, made their governors almost powerless. Although problems created by a weak executive soon became apparent and were slowly corrected, “[b]y 1787, only four states had executives worthy of the name.”[xi]
  • The Judiciary. Most states instituted an appointed judiciary, often appointed by the Governor (four states) or the Legislature (seven states).
  • Consent of the governed. In all but one state, the new constitution was simply put in effect as though it were a simple law. There were some murmurings, but the citizens generally accepted this “constitution by fiat.” But to be fair to the legislatures involved, they felt themselves to be representatives of the people.

Many states kept the other major features of the governmental structure that served them for so many years. One example from Delaware: “The sheriffs and coroners of the respective counties shall be chosen annually, as heretofore.”

So, what can rightfully be called innovations in the state constitutions? I’ve encountered few that could be called truly radical, but Delaware’s Constitution provides some examples:

  • A Declaration of Rights preceded the Constitution (Virginia led the way in this).
  • In Delaware alone were elected officials impeachable up to 18 months after leaving office.
  • Delaware’s Article 26 prohibited slavery, one of the first states to do so constitutionally.
  • No firearms were allowed to be carried at any election.
  • There was to be no establishment of any one religious sect in preference to another.
  • “No clergyman or preacher of the gospel…shall be capable of holding any civil office in this State.” (other states incorporated this feature as well).
  • The oath before assuming office in Delaware read: “I, ___, do profess faith in God the Father, and in Jesus Christ His only Son, and in the Holy Ghost, one God, blessed for evermore; and I do acknowledge the holy scriptures of the Old and New Testament to be given by divine inspiration.”

What of the various state bills or declarations of rights?  How did they compare with what eventually became the U.S. Constitution’s Bill of Rights?

Beginning with Massachusetts, the Anti-federalists began insisting that their vote for ratification would only materialize if there were a “gentleman’s agreement” that both amendments and articles for a future bill of rights would be accepted and submitted with the ratification instrument. When he arrived at the first Congress under the new U.S. Constitution, James Madison set to work reviewing these submissions from the states and incorporating those with the greatest appeal. It should come as no surprise to find parallels between the state Declarations and what became the U.S. Bill of Rights. But there were exceptions – suggestions that were either rejected by Madison or rejected by the Congress after Madison included them in his draft to the Congress. Notably, several verbatim quotes from Virginia’s Declaration of Rights were rejected by the Congress after appearing in the draft.

In summary, as Willi Paul Adams concludes: “The most significant accomplishment of the American Revolution, apart from the military achievement of independence, was the successful establishment of republican, federal, and constitutional government in a territory so extensive by European standards that conventional wisdom considered only monarchical government suitable for such an empire.”[xii]

Donald Lutz takes a different view: “[t]he (U.S.) Constitution … successfully created a new constitutional system appropriate to new political circumstances, it conserved what was best and central in the earlier American constitutional tradition, and it bult upon and in many important respects derived from state constitutions.”[xiii](emphasis added)

While the American states were intended to be experiments in government, and they have in many respects played that role over our 230+ years, there was still remarkable similarity in the thinking of the drafters of the early state constitutions as they considered what were the ingredients to “good government.” The fact that Massachusetts operates today from their 1780 Constitution, albeit with 120 amendments, remains a testament to the wisdom of America’s founding generation.

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 periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

[i] Donald S. Lutz, The Origins of American Constitutionalism, Louisiana State University Press, 1988. p. 97.

[ii] Donald S. Lutz, Ibid. p`. 99.

[iii] Charles Warren, Congress, the Constitution, and the Supreme Court. 1925

[iv] Resolution of the Confederation Congress, February 21, 1787.

[v] Rhode Island decided to retain the structure of government described in their Royal Charter although the linkage to the British government had of course been severed. Rhode Island operated from this modified charter until 1842.

[vi] “Resolved, That it be recommended to the respective assemblies and conventions of the United Colonies, where no government sufficient to the exigencies of their affairs have been hitherto established, to adopt such government as shall, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents in particular, and America in general.”

[vii] Giving Massachusetts the distinction of having the longest continuously-operating constitution in the world today.

[viii] https://en.wikipedia.org/wiki/Colonial_government_in_the_Thirteen_Colonies

[ix] Virginia Constitution, 1776, Article 1, Declaration of Rights, Sec. 5.

[x] Charles Warren, Congress, the Constitution, and the Supreme Court. 1925, p. 24

[xi] Donald S. Lutz, Ibid. p. 106

[xii] Willi Paul Adams, The first American Constitutions, 2001, p. 5-6.

[xiii] Donald S. Lutz, Ibid. p. 109

 

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Successful Government and Forming State Constitutions on All Political Power Being Vested in and Derived From the People Only

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Guest Essayist: Adam Carrington
Independence Hall, Philadelphia, Pennsylvania


We don’t always get it right the first time. Sometimes, experimentation then leads to true success. Those statements prove true for many situations, professional and private. The Founders experienced both with their first forays into constitution-making in the 1770s and the 1780s. Those efforts included the Articles of Confederation, our first national constitution. Our current Constitution replaced it after a short, tumultuous time.

Here, though, we will focus on the efforts made at the state level. The former colonies needed their own governing documents to set the conditions for rule. These first efforts saw some success and some need for serious improvement.

First, these constitutions got the source of rule correct. The constitution for North Carolina (1776), opened by declaring, “That all political power is vested in and derived from the people only.” New Hampshire (1776) based its constitution’s power on the “free suffrages of the people of said colony.” This reasoning aligned with another document from 1776, the Declaration of Independence. That work of the Second Continental Congress declared that governments derive “their just powers from the consent of the governed.” This point itself derived from the Founders’ commitment to human equality, expressed by the fact that no person should rule another without pre-conditioned agreement.

Second, these constitutions in general got the purpose of government right. Massachusetts’ constitution (1780), penned by John Adams, said the purpose of government resided in the power “to furnish the individuals who compose it with the power of enjoying, in safety and tranquillity, their natural rights and the blessings of life.” This reasoning, too, aligned with the Declaration of Independence. It declared that all human beings possessed “unalienable rights,” meaning claims on others that no one else could infringe. It then said that “to secure these rights, governments are instituted among men.” Government exists because we have these rights but cannot adequately enjoy them due to threats from others. Political society forms to offer protection of these rights for their better use by each person.

Third, however, these state constitutions tended to struggle to rightly structure their institutions. In particular, they correctly sought a government organized around the concept of separation of powers. WE must understand this point before saying how they struggled with it. This theory said that government power is based on the rule of laws. However, law requires three functions to rule properly.

First, one must make law—the legislative power. Some may say we could stop there. However, that would leave government inadequate to its task. We know that merely saying what someone should do does not always get obedience. Sometimes people will disobey the law even when they know it. Think of many of us on highways with speed limits. That brings in the second task of government under the rule of law. A government must enforce those made laws—the executive power. Executive power brings coercive force to bear in service of the laws, to make sure people obey them and thus do not infringe on rights. Third and finally, a tribunal must exist to interpret and apply the law when disputes arise regarding it—the judicial power. People may know the law but not agree on whether someone broke or followed it. That factual question is what juries often decide in trials. People may agree on what happened but disagree about the wording of the law in relation to what happened. Judges make these calls, trying to apply the law’s words faithfully to the actions in a case before him or her. Together, these three powers ensure the law rules, both our constitutions and the statutes made under them.

Most state constitutions affirmed separation of powers. Article VI of the Maryland constitution’s declaration of rights (1776) said, “That the legislative, executive and judicial powers of government, ought to be forever separate and distinct from each other.” However, many states structured their separation of powers to make the legislative power too strong and the other branches too weak. Doing so did not deny separation of powers on paper. But it did so in practice.

States such as Pennsylvania and Virginia in particular created very weak executives. They quickly came under the control of the state legislatures. James Madison saw this problem in the 1780s. Having seen what happened with state constitutions, Madison wrote in Federalist 48 that, “The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.” In some sense, legislative dominance was natural. Legislative power made the laws that other branches must then carry out. That gave it an advantage. Also, in a popular government, people would see themselves more in the numerous, lawmaking legislature than the much different executive or judicial branches.

We must not underestimate the problem with separation of powers failing in practice in these states. The Founders knew and said that any combination of legislative, executive, and judicial power together led to tyranny. It did so because it allowed one entity to take over the laws and start using them as it wished. The law then became a tool for human beings to oppress one another, not a guide and restraint to rule over them.

Thankfully, not all constitutions fell prey to this problem. New York’s 1778 constitution, for example, gave a strong executive that maintained independence from that state’s legislature. It became an example members of the Constitutional Convention looked to for constructing our American President. In other ways, our Founders learned from the other states’ mistakes in how they constructed the national Constitution. They put in a system of checks and balances to work alongside separation of powers. These checks gave each branch ways to limit the power of the other branch. Ambition would check ambition, as Madison would write in Federalist 51. Sometimes, these checks even meant giving a little of one branch’s power to another. Thus, the president’s veto power is a legislative power to make laws. But it helps protect that office against legislative encroachments. Even the powerful Congress possesses the impeachment power, lest a president or judges usurp their power or the Constitution’s.

Thus, we can be thankful we no longer have the state constitutions of the 1770s and 1780s. They needed improved upon. But we also should thank them for the good they did. They set out the proper origin and purpose of government, a commitment we only reinforced through our subsequent history. And they taught us how to structure our government better. They gave us the experience that showed how to separate governmental powers to support the rule of law and by it human equality and liberty.

Adam M. Carrington is an Associate Professor of Politics at Hillsdale College. There, he teaches on matters of Constitutional law, American political institutions, and separation of powers. His writing has appeared in such popular forums as The Wall Street Journal, The Hill, National Review, and Washington Examiner. His book on the jurisprudence of Justice Stephen Field was published in 2017 by Lexington. Carrington received his B.A. from Ashland University and his M.A. and Ph.D. from Baylor University. He lives in Hillsdale with his wife and their two daughters.

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Framing Early State Constitutions and Developing a Republican Form of Government, Under Threat of Battle

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Guest Essayist: James C. Clinger
British troops leave Boston, prior to the Battle of Lexington and Concord, April 19, 1775; start of the American Revolutionary War. Engraving by Amos Doolittle. The British Army in Concord, April 19, 1775. "Plate II. A view of the town of Concord." In: "The Doolittle engravings of the battles of Lexington and Concord in 1775." New York Public Library Collection Guide: Picturing America, 1497-1899: Prints, Maps, and Drawings bearing on the New World Discoveries and on the Development of the Territory that is now the United States. Humanities and Social Sciences Library / Print Collection, Miriam and Ira D. Wallach Division of Art, Prints and Photographs.https://en.wikipedia.org/wiki/American_Revolutionary_War#/media/File:British_Army_in_Concord_Detail.jpg


The federal, or United States Constitution, drafted during a hot summer in Philadelphia in 1787 was not the only constitution written in that time period, nor was it the first. Earlier, as the former American colonies became newly formed states, they adopted new constitutions that would later influence other states and even the form of the federal Constitution. These documents became the first statements of how republican government would be framed and put into practice.[1] According to Akhil Reed Amar, within these constitutions were “certain overarching elements that are now so commonplace that we forget how truly revolutionary they were in 1776: writtenness, concision, replicability, rights declaration, democratic pedigree, republican structure, and amendability.”[2]

Most of the new constitutions roughly resembled the colonial charters that they replaced. Connecticut and Rhode Island even retained their colonial charters with only minor modification. But some states began a serious effort to craft their own, unique constitutions which would both empower and constrain state government as well as protect the rights and liberties of their people. New Hampshire drafted its constitution even before independence was declared, and several others followed suit while the revolution was being fought.[3]

Many of those early state constitutions were hastily drafted under adverse conditions. The threat of approaching British troops forced some constitutional conventions to adjourn and reconvene multiple times.   Some states’ constitutional framers were not completely convinced that the revolution would be successful.[4] According to Article 26 of New Jersey’s constitution of 1776, “if Reconciliation between Great Britain and these Colonies should take place, and the latter be again taken under the Protection and Government of the Crown of Great Britain, this Charter shall be null and void, otherwise to remain firm and inviolable.”

There were certain commonalities in the various constitutions, but a number of unique features in particular states. All states provided for some separation of powers which would become a distinctive feature of both state and federal governments. Most states provided for a fairly weak executive, although in many respects the chief executive, almost always referred to as a governor, was more powerful than any executive in the national government under the Articles of Confederation. Many states did not provide for a veto for their governor, and some gave veto authority to a plural body, sometimes called a council of censors.[5]

Most state legislatures were bicameral, although both Pennsylvania and Georgia established a single chamber in their initial constitutions.   There were usually property requirements to hold office in the legislature, with stricter requirements for members of the upper chamber. The lower chambers’ members were directly elected by the voters. This was usually the case for the members of the upper chamber, which today in every state is called a senate, but in Maryland the senators were chosen indirectly with voters selecting electors who would then select the members of the senate. A few states later adopted this method, and a few for a short time used electors to select their governor.   Direct election of the governor was established in only five of the original thirteen states’ initial constitutions. In the remaining states, the legislature would select the chief executive.[6] Under the initial state constitutions, judges were either appointed by the legislatures or by the governor with approval of the legislature or at least the senate. The legislature was generally permitted to change the compensation of judges at will, thus diminishing the courts’ reputations for independence.[7]

The terms for almost all offices in the early constitutions were very short. With one exception, all states limited the length of lower legislative house members’ terms to one year. South Carolina had two-year terms. Most states’ senators served terms of one or two years, as did most governors and many judges. These brief terms were a primary check on the behavior of public officials.[8]

The early state constitutions established suffrage requirements for state voters. Most states required property holding requirements, but those varied dramatically from state to state. Property requirements might also vary for the electors of different offices. To vote in elections for the lower legislative chamber, Pennsylvania and North Carolina offered the franchise to all freemen who paid taxes. To vote for members of the state senate, North Carolina required ownership of fifty acres of land. New Hampshire imposed a poll tax. New Jersey had a minimum property requirement of fifty pounds value that applied to suffrage for all state office.[9] These voter qualification requirements had implications for voting in elections for the federal House of Representatives, once the U.S. Constitution took effect, since Article I, Section 2 stipulates that the voters for the U.S. House of Representatives “shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.”

Some, but not all, of the new constitutions included a bill of rights or a declaration of rights. Some of the language in these declarations was largely precatory, with admonitions that state government “ought” not to do certain things, such as impose excessive bail. Other language seems to impose more of a binding commitment on the government. Some of the rhetoric is fairly sweeping, such as the declaration in the Virginia Declaration of Rights that all men are “born free.” The absence of a bill of rights in the federal Constitution was a contentious issue during its ratification. But that issue was resolved with the passage of the first ten amendments. These state declarations became a model for the Bill of Rights, although there were notable differences between the first state declarations and the federal Bill of Rights. The state declarations usually referred to rights to jury trials, the free exercise of religion, and the right to bear arms. The very first state constitutions did not refer to a general freedom of speech, although later constitutions did. Notably, most state constitutions did not include a state equivalent of the federal Establishment Clause.[10] Some constitutions, in fact, authorized state government to support religious institutions[11] and several authorized religious tests for holding certain public offices.[12] The initial constitutions of the original thirteen states did not mention slavery as an institution, although a few rhetorically declared that the British monarch had enslaved the American colonies. Provisions defending, limiting, and abolishing slavery within different states would appear in subsequent constitutional revisions in the coming years.[13]

Some of the early state constitutions were hastily written and did not even provide a provision for amendment. Thus, constitutional changes took place through wholesale re-writes of the documents. Many states drafted entirely new constitutions in the first few years of the republic, and more constitutions were written and ratified as new states were added to the union. Many of those constitutions borrowed from the existing constitutions of other states. For example, about 70% of the 1792 constitution of the new state of Kentucky was taken almost word for word from the Pennsylvania constitution of 1790.[14] Of course, many features of the federal Constitution borrowed somewhat from the state constitutions. Most early state constitutions or amendments were adopted through a legislative process. The constitution of the Commonwealth of Massachusetts was one of the first to require approval by voters. In that instance, the document was voted upon by local towns and townships. Today, most states require a public referendum to approve new constitutions or constitutional amendments.[15]

Acknowledgements: The author would like to thank Dr. James Humphreys for his comments on an earlier draft of this essay. Any errors are the responsibility of the author.

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

[1] Adams, Willi Paul.. The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era / Willi Paul Adams; Translated by Rita and Robert Kimber; with a Foreword by Richard B. Morris. Expanded ed. Rowman & Littlefield Publishers; 2001.

[2] Amar, Akhil Reed.   The Words That Made Us: America’s Constitutional Conversation, 1760-1840.  Basic Books,

2021.

[3] Adams, loc cit.

[4] Squire, Peverill.  The Evolution of American Legislatures: Colonies, Territories, and States, 1619-2009.  Ann Arbor: University of Michigan Press.   p.83

[5] Squire, loc cit., p. 87

[6] Lutz, Donald S. “The Theory of Consent in the Early State Constitutions.” Publius 9, no. 2 (1979): 11–42.

[7] Tarr, G. Alan.  “Contesting the Judicial Power in the States.”   Harvard Journal of Law & Public Policy 35, no. 2 (2012): 643-661.

[8] Lutz, loc cit.

[9] Lutz, loc cit.

[10] Lutz, Donald S. “The State Constitutional Pedigree of the U.S. Bill of Rights.” Publius 22, no. 2 (1992): 19–45.

[11] Vincent Phillip Muñoz, “Church and State in the Founding-Era State Constitutions.”   American Political Thought  4, (Winter 2015):1-38.

[12] Wilson, John K. “Religion Under the State Constitutions, 1776-1800.”  Journal of Church and State.  32, no. 4 (1990): 753-773.

[13] Herron, Paul E. “Slavery and Freedom in American State Constitutional Development.” Journal of Policy History 27, no. 2 (2015): 301-336.

[14] 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.

[15] Tarr, 2000

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Ken Nahigian

Ken has spent more than two decades working at the highest levels of national policy and communications. He serves as the policy translator for the firm’s communications strategies to ensure that complex issues in areas such as healthcare, transportation, technology, homeland security, and many others, are understandable and actionable for clients’ intended audience(s).

Prior to joining the firm, Ken served as Chief Counsel and Deputy Staff Director of the U.S. Senate Commerce Committee where he served under then-Chairman Ted Stevens of Alaska. Ken also served under Committee Chairman John McCain. Ken joined the Committee after serving as an attorney in the Issues and Appeals Division of the law firm Jones Day, and also as Senior Law Clerk to the Honorable Donald Ivers on the U.S. Court of Appeals for Veterans’ Claims.

Ken is a graduate of Miami University in Oxford, Ohio, and Capital Law School in Columbus, Ohio. He is a proud-native of Cleveland, Ohio, and he is married with two teenage children.

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Keith Nahigian

In 2000, Keith realized his vision for a multidimensional communications strategy firm that not only focused on the public relations needs for clients but also designed growth strategies for companies and organizations ranging from small start-up businesses and nonprofits to multinational corporations.

Keith believes that every organization has a story to tell. When the story is told well and strategically, that organization will be better equipped to reach its goals.

A 27-year veteran with top-level experience advising, designing, and managing some of the largest campaigns in US history, Keith has worked for governors, members of Congress, and served in the White House under the first Bush Administration. His work has taken him around the world to dozens of countries and almost every state in the nation. Among other roles, Keith has served as Special Assistant to the Vice President of the United States, Special Assistant to the Governor of New Jersey, consultant to the Secretary of Health and Human Services (HHS), consultant with top-secret security clearance to national security agencies, and campaign manager to Congresswoman Michele Bachmann in the 2012 presidential campaign.

Among his many career achievements, Keith has worked for six presidential campaigns, managed the messaging priorities for HHS at the request of the Secretary, and orchestrated both the Medicare Part D prescription drug enrollment campaign and the HHS Prevention and Value Driven campaign.

Keith has significant experience working with the media and has been a frequent source of commentary for national news outlets, including the Washington Post, New York Times, Boston Globe, Wall Street Journal, ABC, CNN, NBC, CBS, Fox News, NPR, and others.

Keith is married to his wife Courtney and holds a B.A. in History from the College of Wooster.

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Wil Gravatt

From a very early age, music was an integral part of Wil Gravatt’s life. Wil’s mother worked for the legendary Capitol Records; and he was exposed to the sounds of the Beatles, Janis Joplin, Buck Owens, and Waylon Jennings to name a few. His first love was the drums; teaching himself to play and forming his first band when he was only 14. More of a rocker in the early years, Wil switched to country music in his late teens while in college. He bought an acoustic guitar and taught himself to play by listening to BB King, Bruce Springsteen, and others.

Wil released a solo record “Ready to Cross That Line” in the late 90’s to critical acclaim. In the early 2000’s Wil put together a band of high-caliber musicians and started performing many energetic shows to a packed house at the now-defunct Whitey’s in Arlington, VA. Eventually they released “Live at Whitey’s.” It’s a staple of the collection of many country music fans.

In 2005 and 2009 the band was invited by Presidents Bush and Obama to perform at their respective Inaugural Balls – quite an honor for any band. The Wil Gravatt Band has shared the stage with Robert Earl Keen, Lynyrd Skynyrd, Pat Green, Little Big Town, ZZ Top and myriad other renowned artists. Based in Washington, DC they continue to perform 75+ shows a year to long-time fans and new recruits to their unique brand of high-energy Honky Tonk music.

The band features former Danny Gatton sideman Steve Wolf on bass, Gary Crockett on drums and vocals, Jimbo Byram on steel guitar, Bobby Spates on fiddle, and Wil on vocals and guitar. A new album of original music recorded in Nashville is slated for release in late 2016.

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Peter Roff

Peter Roff is a longtime Washington, D.C. writer and commentator whose work has appeared in U.S. News & World Report, Newsweek, and other publications. He appears frequently on radio and television and holds fellowships with several public policy organizations. He can be reached by email at RoffColumns@GMAIL.com. Follow him on Twitter @PeterRoff.

At one time the political director of Newt Gingrich’s GOPAC, Mr. Roff planned and directed political education programs that trained tens of thousands of candidates for public office and political activists. Prior to his years at GOPAC, he spent nearly five years as executive director of Americans for Tax Reform, the organization that created the “Taxpayer Protection Pledge.”

Leaving politics in the late 1990s, he began a new career as a journalist, spending five years as the senior political writer for United Press International.

While at UPI he regularly filled the wire with breaking news and analysis, working on some of the biggest political stories of the 20th century including the September 11, 2001 terrorist attack and the election of George W. Bush in one of the narrowest political contests in U.S. history.

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

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

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

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Steve Dean

Nashville songwriter Steve Dean has co-written six number one hits, including the most played song on country radio in 2007, “Watching You” for Rodney Atkins, the Grammy nominated “It Takes A little Rain” for The Oak Ridge Boys, “Southern Star” for Alabama, “Round About Way” for George Strait, “Walk On” for Reba McEntire and “Heart’s Aren’t Made To Break” for Lee Greenwood.

Among Steve’s musical influences are The Beatles, The Byrds, The Eagles, Buck Owens,
Johnny Cash, and Roger Miller.

Steve’s songs have been recorded by LoCash Cowboys, Joe Nichols, Dierks Bentley, Lee Ann Womack, Waylon Jennings, The Roys, Pure Prairie League, John Michael Montgomery, Point of Grace, Conway Twitty and others.

Steve has earned eight BMI Songwriter Awards, two BMI Publisher Awards, two BMI 2 Million Air Awards and three BMI 1 Million Air Awards.

Steve’s song “Walk On” is on the Grammy winning CD, Reba’s Greatest Hits Volume 2.
Steve’s song “Expecting Good Things”, is the title track to Jeff and Sheri Easter’s Grammy nominated CD “Expecting Good Things”.

As a singer/songwriter, Steve lets his audience in on a behind the scenes look at, and a unique opportunity to hear the stories surrounding the inspiration for and why these songs were written.

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Mark Rodgers

Mark Rodgers is the Principal of The Clapham Group, a company that seeks to influence culture upstream of the political arena. Mark served as the third-ranking Republican leadership staffer in the U.S. Senate for six years overseeing strategic planning and strategic communications. He also served as a high profile chief of staff to Senator Rick Santorum, working on Capitol Hill for a total of 16 years. He was known on the Hill for his work on such issues as poverty alleviation and global AIDS, as well as protecting life at its most vulnerable stages. Mark is a published writer and a speaker at large and small gatherings on the topics of faith and public life, culture and caring for the least of these. His work over the years has involved consulting with some of the largest foundations in the world, Fortune 500 companies, internationally known music artists and filmmakers, and even famous comic book creators. He is a published writer and a speaker on the topics of faith and public life, culture and caring for the least of these.  His work over the years includes outreach to “culture creators,” and he has worked closely with artists from diverse fields including computer gaming, graphic novels, film and music.  Mark is also a social entrepreneur, and enjoys finding ways to help people “do good while doing well.”

He earned a bachelor’s degree in petroleum engineering from Penn State, and attended Trinity Episcopal School for Ministry. Mark is married to Leanne, and together they have four children and four grandchildren. Mark resides in Burke, Virginia.

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Gail MacKinnon

Gail MacKinnon joined the Motion Picture Association (MPA) in November 2017 and is the current Senior Executive Vice President for Global Policy & Government Affairs. A skilled senior executive with experience in public policy advocacy, issues management, and strategy development, Gail oversees the MPA’s government relations portfolio and policy agenda, as well as its international advocacy and policy, including in the APAC and EMEA regions.

Previously, Gail served as Executive Vice President, Government Relations for Time Warner Cable, where she led all aspects of federal, state, and local government relations for the telecommunications company. She positioned the company as a trusted advisor to government leaders on a range of public policy issues; including video reform, cybersecurity, tax, and privacy.

Prior to her role at Time Warner Cable, Gail was Senior Vice President of Government Relations at the National Cable & Telecommunications Association. She has held senior positions at Viacom, CBS Inc., Telecommunications Inc., and Turner Broadcasting. She began her career on Capitol Hill, serving as Legislative Director for Congressman Jack Fields (R-TX).

In 2016, Gail helped co-found WE Capital, a consortium of women in the Washington, D.C. business community investing in female-led startups focused on social impact work. She was named one of Washingtonian’s Most Powerful Women in 2019. Gail received a Bachelor’s degree from Georgetown University.

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Moses Uvere

Born and raised in Dallas Texas, Moses Uvere was the first born to Patience and Gabriel Uvere, immigrants who came to America to seek “the American Dream.” Being brought up by parents from a different country, Moses witnessed firsthand what “the American Dream” was all about and the struggle to achieve a better life. Living in poverty-stricken areas Moses had an up-close view of growing up poor, sharing clothes with his brothers, wearing hand-me-downs, and not getting much during the holidays. Moses was an active kid who always played sports and was a fine football prospect in high school where his career was cut short. Due to the fact that his mom left the family, he the eldest of the four had to grow up quickly to help his dad raise his two little brothers and his little sister. “The things in my life didn’t break me, but made me the man I am today.” Music had always been a part of his life and after being in the group minority authority for a few years, Moses struck out on his own. He met up with Dustin Cavazos who produced his first release, From Worse to Better. (2008) The album is a reflection of past experiences that he has seen and lived. A few years later, (2011) Uvere signed a record deal with Universal / Motown producer Geoff Rockwell under the imprint of chaos creative and released an album entitled Mind the Gap which received critical acclaim. Following that album, Uvere had his highest-profile release yet with Never Been Better which led him to be in front of 13.9 million people (according to anchor marketing), with his latest release Kingdom of the Fallen. The album reached the top 100 of the iTunes charts and was followed up with a performance at the historic Klyde Warren Park as the first Christian hip hop artist in its history to be invited as a headliner. Each project of his musical offerings was influenced by artists such as Kanye West, Common, Pigeon John, Issac Hayes, and Musiq Soulchild. He is a husband, a father of three, and currently the Lead Pastor at the Vine of Life in Garland, TX.

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Shane Tews

Shane Tews is a nonresident senior fellow at the American Enterprise Institute, where she focuses on cybersecurity issues, including privacy and data protection, next-generation networking (5G), the Internet of Things, international internet governance, digital economic policy, information and communications technology, artificial intelligence (AI) and the metaverse, cryptocurrency and non-fungible tokens, and emerging technologies. She is also president of Logan Circle Strategies, a strategic advisory firm.

She is vice chair of the board of directors of the Internet Education Foundation; chair of the Internet Society’s Washington, DC, chapter; member of the board of SeedAI; chair of the board of directors at TechFreedom; and chair of the Dynamic Coalition on the Internet of Things of the Internet Governance Forum.

Previously, Ms. Tews served as co-chair of the Internet Governance Forum USA. She was a member of the board of the Information Technology and Innovation Foundation, the Information Technology Industry Council, and Global Women’s Innovation Network. She also managed internet security and digital commerce issues as vice president of global policy for Verisign. She began her career in the George H. W. Bush White House as a deputy associate director in the Office of Cabinet Affairs and later moved to Capitol Hill as a legislative director for Rep. Gary Franks (R-CT).

Ms. Tews studied communications at Arizona State University and American University, where she graduated with a bachelor’s degree in general studies with an emphasis on communications and political science.

Experience

  • Logan Circle Strategies: President, 2014–present
  • Vrge (formerly 463 Communications): Outside Policy Consultant, 2015–19
  • 463 Communications: Principal and Chief Policy Officer, 2012–15
  • Internet Education Foundation: Vice Chair, Board of Directors, 2011–present; Member, Board of Directors, 2004–11
  • Verisign: Vice President of Global Public Policy and Government Relations, 2001–12
  • Distilled Spirits Council of the United States: Vice President for Federal Affairs, 1997–2001
  • Citizens for a Sound Economy and Citizens for a Sound Economy Foundation: Director of Government Relations, 1995–97
  • Office of Congressman Gary A. Franks (R-CT), US House of Representatives: Legislative Director, 1992–95
  • The White House: Deputy Associate Director, Office of Cabinet Affairs, 1991–92
  • US Department of Transportation: Special Assistant to the Assistant Secretary for Congressional and Intergovernmental Affairs, 1991; Staff Assistant to the Secretary of Transportation for Scheduling and Advance, 1989–91

Education

BA, public relations and political science, American University
Attended Arizona State University

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Laws of Nature and of Nature’s God: Preserving the Purpose of the Declaration of Independence Through the United States Constitution

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Guest Essayist: Tony Williams
The Declaration of Independence of the United States of America by Armand-Dumaresq (c. 1873) has been hanging in the White House since the late 1980s – Charles Édouard Armand-Dumaresq (1826-1895) – White House Historical Associationhttps://en.wikipedia.org/wiki/Signing_of_the_United_States_Declaration_of_Independence#/media/File:Signing_of_Declaration_of_Independence_by_Armand-Dumaresq,_c1873.png


The Americans of the founding period were a strongly Protestant people of various denominations including dissenting Presbyterians, Baptists, and Congregationalists. Some historians have estimated that Protestants made up over 98% of the American population. Their Protestantism was characterized by a strong dissenting tradition against religious and civil tyranny as well as a strong streak of individualism.

Their Protestantism—especially the Puritan tradition—was also exemplified by appeals to the natural law in its covenant theology that was consistent with Lockean social compact theory. Covenant theology caused Americans to view themselves as a Chosen People of a new Israel who formed a covenant with God. The natural law of covenant theology was consistent with both reason and revelation as they reconciled their reason and faith in the natural law and natural rights philosophy of the American Revolution.

The American founders drew from a variety of traditions in arguing for their natural rights and liberties. Ancient thought from Greece and Rome, the English tradition, and the ideas of John Locke and other Enlightenment thinkers combined with Protestantism for a rich tapestry. While the Enlightenment provided a strong influence on the founders, the contribution of their religious beliefs has often been downplayed or ignored. The average American colonial farmer or artisan may not have read John Locke’s Two Treatises of Government or ancient philosophy, but they heard dissenting religious ideals and Lockean principles from the pulpit at religious services.

Toward the end of his life, Thomas Jefferson had cause to reflect on the meaning of the Declaration of Independence, a document which later influenced the United States Constitution. He wrote to Henry Lee in 1825 about the purpose of the Declaration:

“This was the object of the Declaration of Independence. Not to find out new principles, or new arguments, never before thought of, not merely to say things which had never been said before; but to place before mankind the common sense of the subject, in terms so plain and firm as to command their assent…it was intended to be an expression of the American mind, and to give to that expression the proper tone and spirit called for by the occasion. All its authority rests then on the harmonizing sentiments of the day.”

The “harmonizing sentiments” of the 1760s and 1770s supported a natural law opposition to British tyranny in the American colonies. James Otis was one of the earliest articulators of natural law resistance. In 1764, he wrote, “Should an act of Parliament be against any of his natural laws, which are immutably true, their declaration would be contrary to eternal truth, equity, and justice, and consequently void.”

In 1774, Thomas Jefferson expressed the same sentiments in his Summary View of the Rights of British America. In the pamphlet, he wrote that God was the author of natural rights inherent in each human being. The Americans were “a free people claiming their rights, as derived from the laws of nature, and not as the gift of their chief magistrate… the God who gave us life gave us liberty at the same time: the hand of force may destroy, but cannot disjoin them.”

A year later, a young Alexander Hamilton wrote a pamphlet, Farmer Refuted, in which he eloquently described the divine source of universal rights. “The sacred rights of mankind are not to be rummaged for, among old parchments, or musty records. They are written, as with a sun beam, in the whole volume of human nature, by the hand of the divinity itself; and can never be erased or obscured by mortal power.”

These “expressions of the American mind” were common formulations of natural rights that influenced the Declaration of Independence. The four mentions of God in the document demonstrate their understanding of the divine, but it also showed that God was the author of good government according to natural law.

First, the Declaration appeals to the “separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.” This first mention of God is that of Protestant and Enlightenment natural law. They saw God as the author of truth in the moral order of the universe. This moral order defined their thinking about republican self-government.

Second, the Declaration asserts that, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” God is the Creator and author of natural rights in this formulation. Since rights are from a higher authority, no earthly power can violate an individual’s inherent rights. Interestingly, God here acts as a supreme legislator who makes the natural law and grants natural rights.

Third, the Declaration appealed to “the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States.” God is a judge who authored the idea of justice and who judges human actions. God here represents the judicial branch of government.

Fourth, the Declaration stated that, “With a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.” Americans believed that God was a providential God who intervened in human affairs and protected his Chosen People. This conception of God represents the executive branch of government.

The Declaration of Independence was a reflection that the American natural rights republic was rooted in the natural law. Reason and divine revelation supported the natural law that shaped a good government built upon the understanding of human nature and the rights given to human beings by God.

In Federalist #1, Alexander Hamilton explained the entire purpose of establishing free government based upon the principles of the Declaration of Independence and Constitution. He stated that Americans had the opportunity and responsibility to form good government by “reflection and choice,” not by “accident and force.” The United States was founded uniquely upon a set of principles and ideals.

In 1861, President Abraham Lincoln had occasion to reflect upon the principles of the American Founding. Using a biblical metaphor, he thought that the Declaration of Independence was an “apple of gold” because it contained the foundational principles of the new country. The Constitution was the “picture of silver” framing the apple with the structures of republican government, thus preserving the purpose of the Declaration. In the mind of Lincoln—and those of the Founders—an inextricable link bound together the two documents in creating a free government.

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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From a Declaration of Independence to a Constitution: The Laws of Nature and Preservation of the United States of America

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Guest Essayist: J. Eric Wise
Writing the Declaration of Independence, 1776. Benjamin Franklin, John Adams, and Thomas Jefferson working on the Declaration, a painting by Jean Leon Gerome Ferris, 1900https://en.wikipedia.org/wiki/United_States_Declaration_of_Independence#/media/File:Writing_the_Declaration_of_Independence_1776_cph.3g09904.jpg


Everything comes back to the Declaration of Independence. In a way, the seeds of the Federalist Anti-federalist dispute in the framing of the Constitution were sown in the Declaration.

The Declaration of Independence established the basis of just government as consent as against the divine right of kings. To quote Thomas Jefferson, “the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them.”

Consent leads to forms of majority rule, although it must be a reasonable and restrained majority which respects the rights of the minority. Consent requires some kind of deliberation for the sake of forming consensus, and public deliberation over a proposed charter leads to disputes for and against.

But that is not the sole connection. The Declaration of Independence establishes a right of revolution. Whenever a government becomes abusive of the ends of just government it is the right of the people to alter or abolish it. Revolution is an extra-legal right. The oppressions of King George – “[a] Prince whose character is thus marked by every act which may define a Tyrant” – entitled the colonists to rebel, illegally.

The Declaration of Independence – a “unanimous Declaration of thirteen united States of America” – also stated that “That these United Colonies are, and of Right ought to be Free and Independent States.”  A new nation was born that was having a hard time saying clearly whether it was one nation or many. Babes lisp, and so it was with the young United States.

The first charter of the United States was entitled the Articles of Confederation and Perpetual Union. Confederation comes from the Latin con meaning “with or together” and foederare meaning treaty or league. Again, the early babble of United States suffered some polysemy. It was a union that was perpetual but also a treaty of several states.

The Articles of Confederation, as a practical matter, were inadequate. Among other things, the new government was unable to enforce its laws directly and the scope of its powers was narrow, particularly in commercial and financial matters. The result was a chaos of creditor-debtor disputes and a moribund economy that began to threaten the viability of the United States. Both France and Britain anticipated the collapse of the new United States, and were eager to pick up the pieces.

A convention was called in 1787 to repair the defects of the Articles.  The convention produced a proposal for an entirely new charter, the Constitution, to replace the Articles. The Constitution would have many new features, including drawing its authority directly from the people rather than a compact of states, exclusive coinage and bankruptcy power, and a radically new executive power embodied in a president of the United States. It also proposed that it would be deemed adopted when ratified by only nine states.

This last proposal flatly contradicted the Articles. The Articles required a unanimous vote of its member states for amendment. Like the revolution the proposal for a new Constitution, though an appeal to ballots and not bullets, was illegal.

The ground for the adoption of the Constitution was similar to that of the Revolution, an appeal to the “necessity” and (echoing the Declaration) the “law of nature and nature’s God.” The Articles were incompetent and had to be “thrown off” to for the “preservation” the country. Federalist 43.

In politics it is important to pick the name of your movement.  If you do not, your political adversaries will pick it for you. The proponents of the new Constitution, led by Alexander Hamilton, James Madison and John Jay, took the name Federalist. Opposition to the new Constitution was labeled Anti-federalist, locking in rhetorical disadvantage.

Anti-federalists argued with some alarm that the new Constitution permitted the national government to resort to force. Federalists argued that the states were protected from invasion by the Federal power by their militias and from domestic insurrection or invasion by the new federal government. Federalist 28.

The Anti-federalists argued that the confederal form should have been preserved. The Federalists argued that the proposed government was “partly federal and partly national.” Federalist 39.

Anti-federalists argued that the convention did not have the authority to adopt the Constitution. The Federalists argued that the new Constitution was “necessary.” Federalist 40.

Anti-federalists argued that the proposed Constitution was too difficult to amend, and that it should be amended whenever a department of the government exceeds its authority. Federalists rebutted that frequent appeals to the people would undermine the authority and reasonableness of the new government. Federalist 49.

Anti-federalist argued that the judiciary was too independent.  Federalists argued that the new Constitution’s judiciary was its least dangerous branch, and that unconstitutional judicial decisions could be ignored. Federalist 78.

The Federalists prevailed, but experience has at times exposed weaknesses in the Federalist’s arguments. The federal government has overtime supplanted the states in their power. Appeals to the people to amend their Constitution have not just become infrequent, but have ceased almost altogether: The Constitution has not been amended “soup to nuts” in more than 50 years. And this has happened as the judicial power has expanded under the doctrine of a “living constitution” to displace the amendment function; this raises the question whether the Constitution can continue to be the people’s document if the courts, and not they, are its author in key respects.

J. Eric Wise is a partner in the law firm of Alston & Bird.

 

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Where No Government Had Gone Before: The Enduring Success of America’s Declaration of Independence

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Guest Essayist: Tom Hand
Declaration of Independence painting by John Trumbull depicting the five-man drafting committee, left to right: John Adams, Roger Sherman, Robert Livingston, Thomas Jefferson, Benjamin Franklin of the Declaration of Independence presenting their work to the Congress. The original hangs in the U.S. Capitol rotunda.


The Declaration of Independence was America’s first and, arguably, greatest document. It not only laid out the reasons why we should leave the British Empire but also eloquently explained a different set of rules by which a nation should be governed. The background leading to the creation of this document is critical to understanding its content.

At the end of the French and Indian War (or Seven Year’s War) in 1763, the British Empire’s treasury was depleted due to the terrible expense of the war. Although it had been fought in several parts of the world, King George and Parliament decided to recover much of the cost on the backs of their American subjects.

Parliament enacted the Stamp Act (taxes on most printed materials) in 1765 and then the Townshend Act (taxes to fund royal officials, as well as language reinforcing Parliament’s right to tax the colonies) in 1767. While Parliament felt it reasonable that the colonies share of the cost of the recent war, the colonists felt quite different.

To understand where the Americans were coming from, it is important to understand that for much of our early history the British Empire had neglected their American colonies. As a result, Americans had developed a strong independent streak. Out of necessity, our early leaders created their own assemblies and learned how to govern themselves.

Colonial officials reasoned that since the colonies were not directly represented in Parliament, that legislative body did not have the right to levy taxes on them. Not surprisingly, tensions rose over the course of the next few years as the Americans resisted and found ways to avoid paying these new taxes.

Following the Gaspee Affair in 1772 in which colonists burned a British ship, and the Boston Tea Party in 1773 when the Sons of Liberty threw a shipload of tea into Boston Harbor, Parliament attempted to assert its authority with a series of bills known in America as the Intolerable Acts (in England they were called the Coercion Acts).

They essentially stripped Massachusetts of most of the freedoms it had enjoyed since its founding. The harshness of these acts first surprised and then outraged people in all thirteen colonies. People reasoned if England could do that to one, they could do it to all.

To address this crisis and craft a response, colonial leaders convened the First Continental Congress in September 1774. They met in Carpenters’ Hall in Philadelphia, and delegates attended from 12 of the 13 colonies; Georgia chose not to attend. They decided to impose a boycott on British goods and send King George a list of their grievances, but their petition fell on deaf ears.

As one month led into the next in 1775, matter grew worse. On April 19, American militiamen first fought British regulars at the Battle of Lexington and Concord, and on May 10 colonial leaders convened the Second Continental Congress in Philadelphia.

Most of the representatives still hoped for a reconciliation with England. After all, most still thought of themselves as English. Their ancestors had come over from England, their laws were based on English laws, and we spoke the same language.

Not surprisingly, the first point of business for Congress was to try to forge a reconciliation with England, and John Dickinson led this effort. Because most colonists viewed Parliament and not the King as the real problem, they sent a second petition, the so-called Olive Branch petition, directly to King George in July 1775. They soon found out they did not have a sympathetic ear with the King.

On August 23, in reaction to the Battle of Bunker Hill on June 17, Parliament passed the Proclamation of Rebellion which formally declared the colonies to be in a state of rebellion. By the time Congress’ petition arrived at court in late August, King George refused to even receive it, and the chance for reconciliation was essentially at an end.

Notified in late 1775 of these developments, John Adams and others who saw independence as the only choice for the colonies began to agitate for it. Then, in January 1776, Thomas Paine, an Englishman newly arrived in America, published a pamphlet called “Common Sense” which advocated for complete independence from England. His timing was perfect.

Much like Harriett Beecher Stowe’s “Uncle Tom’s Cabin” crystallized the abolitionist movement in the 1850s, Paine’s pamphlet presented to the American people a sound and well-reasoned argument for why separation from England made sense. Ideas that only months before were almost too extreme to discuss were now seen as the best alternative. The table was now set for the great debate to reach its inevitable conclusion.

The discussions were intense, but by late June enough progress had been made toward securing the votes that Congress formed a “Committee of Five” to draft a resolution declaring independence. This committee which included John Adams, Benjamin Franklin, Robert Livingston, Roger Sherman, and Thomas Jefferson wanted Adams to draft the document. However, Adams insisted that Jefferson do the writing with Adams editing it as needed.

On July 2, the Congress approved the Lee Resolution, introduced by Richard Henry Lee of Virginia, calling for independence from Great Britain. The Committee of Five promptly submitted its declaration document to Congress which they approved, after several modifications, on July 4. Thus, in the minds of the delegates, and soon in the eyes of the world, our nation was born.

The words contained in the Declaration of Independence were some of the most revolutionary ideas ever printed. When Congress approved the words, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty, and the pursuit of Happiness,” they were going where no government had gone before.

The preamble further declared that “Governments are instituted among men, deriving their just powers from the consent of the governed.” Given that, in 1776, hereditary monarchies ruled all the nations of the earth, this too was a radical doctrine.

The Declaration of Independence also listed 27 grievances the King had committed against his subjects in America, essentially justifying our decision to separate from England.

These complaints ranged from “He has dissolved Representative Houses repeatedly” to “He has made Judges dependent on his will” to “He has kept among us, in times of peace, Standing Armies without the consent of our legislatures.” Taken together, they made a compelling case for leaving the British Empire.

Ultimately, the American colonists in 1776 were left with two choices. They could either completely submit to the authority of Parliament and the Crown, becoming vassals of England, or declare complete independence and thereby control their own destiny. Time has shown that they chose wisely.

So why should the background to the Declaration of Independence matter to us today? It is important to know that our Forefathers tried to reconcile with the mother country and that rebellion was not our preferred choice.

We also must recognize the intensity of the debate and the widely varying opinions regarding the proper course of action to take and understand that our Forefathers agonized over their decision.

Finally, we must appreciate that these words revolutionized the way that not only Americans but also the rest of the world viewed the role of government and the very concept of where the right to govern originates.

Tom Hand is creator and publisher of Americana Corner. Tom is a West Point graduate, and serves on the board of trustees for the American Battlefield Trust as well as the National Council for the National Park Foundation. Click Here to Like Tom’s Facebook Page, Americana Corner. Click Here to follow Tom’s Instagram Account.

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The U.S. Constitution on Managing British Colonial Governance in North America and Careful Admission of New States to the Union

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Guest Essayist: Andrew Langer
Thirteen colonies in North America: political organization and location of individual colonies. Dark Red = New England Colonies. Bright Red = Middle Atlantic Colonies. Red-brown = Southern Colonies. Color indicated = area of today's states. Richard Zietzhttps://en.wikipedia.org/wiki/Thirteen_Colonies#/media/File:Thirteencolonies_politics_cropped.jpg


Prior to the drafting and ratification of the United States Constitution, our founders had nearly two hundred years of colonial governance from which to draw lessons regarding both the proper, and the improper, management of such territories, and the best way to add new lands to a governmental structure.

Among the threads that run through the Constitution, the assurance of fair and equal treatment of all citizens and the necessity of “due” process as a way to protect those citizens’ rights is repeated in a myriad of ways.

When it came to colonization and settlement, the founders could draw on the history of Great Britain’s management of the colonies (and, in many cases, their mismanagement) to ensure that the deficiencies in British governance could be corrected and their mistakes not repeated.

A central problem was consistency in the development of colonies and the application of British law. Colonial charters, the documentation actually allowing British subjects to establish colonies in North America, could be granted by the King (directly) or by the King’s officers, and they were granted to both corporate entities and groups of individuals.

But these charters could also be revoked, and most colonial charters were, at some point or another, revoked and reinstated by the Crown.

If Americans were going to settle the western portions of the recently-unionized states, they would have to be guaranteed, under the law, that the same kinds of arbitrary actions that plagued British colonial governance would not be continued by an American government.

Not all were even in agreement about such expansion (that became encompassed in the 19th century as the Monroe Doctrine. An Anti-federalist, writing under the name Brutus I in response to the Federalist papers written by James Madison, John Jay, and Alexander Hamilton under the pseudonym Publius, voiced deep concern about American empire building.

Jonathan Marshall, writing for Inquiry Magazine in 1980 (and republished in The Journal of Libertarian Studies) wrote:

“[T]he Antifederalist world view was profoundly shaped by their abhorrence of “empire”-that is to say, the rule of a vast territory by a strong, consolidated government. In rejecting the Federalist dream of a glorious American empire, they challenged the notion that the confederated states had to mimic European empires to safeguard their independence. Ultimately, the Antifederalists insisted, empire could be achieved only at the expense of their most cherished and hard-won prize: liberty.”

That skepticism is certainly shared when viewed in the context of another failure of British rule—the abandonment of the principle of “salutary neglect.” Discussed at length by one of the earliest historians of the American Revolution, Dr. David Ramsay (a revolutionary-era politician and physician), the concept is straightforward: the best way for a colony to prosper is for the parent nation to take a “light touch” in terms of direct governance, to let the colonists themselves make decisions and solve problems.

As the American colonies grew more powerful and determined to make decisions on their own, the British crown became more determined to bring them to heel. This only served to frustrate and anger the colonists, and eventually led them to declaring themselves free and independent states.

The Constitution addresses these concerns squarely—most clearly in Article IV, Section 3, more commonly known as the Admissions Clause.

The clause has two parts—the first, granting power to Congress to admit new states. The second, a restriction on that power, saying that Congress cannot create a new state by dividing the territory of an existing state or by joining two states together, without the consent of the legislatures of those states.

Both are essential to the practice of good governance. The people of the United States and potential states, i.e., territories know that there is one body with the power to admit states into the Union. It cannot be done or denied arbitrarily by a President, or the President’s bureaucratic functionary.

The second clause is almost more important than the first since it essentially prevents a state from being punished or the federal government otherwise abusing its powers by tearing apart states or forcing them to join with other states against their will. There has to be agreement from that state’s duly elected legislative representatives.

It is, essentially, another form of Due Process, protecting the rights of these citizens from arbitrary or capricious behavior on the part of the Federal Government.

Interestingly enough, though not outlined in the Constitution, the process for newly-settled lands to become states has largely been codified over time. Public lands are declared U.S. territory. Through a variety of means, the people in that territory vote to declare their intent to become a state, and then Congress passes an “enabling act” legislating that the territory becomes a state.

One aspect of this, for many of the states that entered after the middle of the 19th century, was to declare that all “unappropriated public lands” within those territories to be the property of the United States itself.  This was a way of “clearing title” to those lands for the purpose of encouraging further settlement (clear title, as the property rights scholars Hernando DeSoto and Richard Pipes have both written, is an essential element of strong protection of private property). It is also the reason why, as a percentage of a state’s territory, so much more land is owned by the federal government west of the Mississippi River (which has had huge implications for the balance of power between federal and state governments for the last half-century).

The British government had both successes and failures when it came to their management of the North American colonies. The authors of the Constitution learned from those mistakes and crafted clear language to safeguard against making them again.

Andrew Langer is President of the Institute for Liberty.

 

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Virginia’s House of Burgesses, Rights of the British Colonies, and Establishing Representative Governing in America

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Guest Essayist: Tom Hand
Patrick Henry's "Treason" speech before the House of Burgesses in an 1851 painting by Peter F. Rothermel. Painting of Patrick Henry's "If this be treason, make the most of it!" speech against the Stamp Act of 1765.https://en.wikipedia.org/wiki/Patrick_Henry#/media/File:Patrick_Henry_Rothermel.jpg


The Colony of Virginia was established at Jamestown by the Virginia Company in 1607 as a for-profit venture by its investors. To bring order to the province, Governor George Yeardley created a one-house or unicameral General Assembly on July 30, 1619.

This body of men was comprised of an appointed Governor and six Councilors, as well as 22 men called burgesses (a burgess was a freeman of a borough in England). Most importantly, the burgesses were elected by the eligible voters (free white males) in the colony, thus making this General Assembly the first elected representative legislature in British America.

In 1642, Governor William Berkeley split the legislature into two houses initiating a bicameral assembly, with the elected representatives in the newly created House of Burgesses and the appointed Councilors of State meeting separately.

It was here, the leading men of Virginia met and debated the great issues of the day. Until the 1760s, this legislative body largely determined how the colony would be governed, including how its citizens would be taxed.

This began to change in 1765 when Parliament passed the Stamp Act which imposed a tax on paper products such as newspapers, pamphlets, and legal documents. Importantly, it represented the first time Parliament placed a direct tax on the colonies in North America.

This revenue grab did not go over well with the colonists who were used to controlling their own internal affairs. The debates and the documents that flowed from the House of Burgesses after that act spearheaded our nation’s drive for independence from England.

On May 29, 1765, Patrick Henry introduced a series of resolutions known as the Virginia Resolves. These declarations essentially denied Parliament’s right to tax the colonies since the citizens in America did not have representation in England.

By late June, many newspapers throughout the colonies had printed these resolutions which inflamed the passions of people. The “no taxation without representation” sentiments led to the Stamp Act Congress of 1765, marking the first time the colonies joined forces against the Mother Country.

The years passed and the relationship with England continued to deteriorate as the Mother Country introduced more burdensome legislation. In 1774, after Parliament passed the Boston Port Act which closed the port of Boston, the House of Burgesses again voiced their opposition in a series of resolves. The result was that Governor Lord Dunmore dissolved the assembly.

However, the Burgesses would not be denied their right to assemble and immediately convened in a public house called the Raleigh Tavern. Here, they called for a series of five Virginia Conventions to meet in defiance of the governor.

It was at the Second Virginia Convention on March 23, 1775, that Patrick Henry gave his most famous speech by concluding, “Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, God Almighty! I know not what course others may take, but as for me, give me liberty or give me death.”

In addition to Patrick Henry (Burgess from 1765-1776), the men who passed through the House of Burgesses was a group that had an outsized influence in the founding of our great nation. Its alumni list is a “Who’s Who” of Founding Fathers:

George Mason (Burgess from 1758-1760) who wrote the Fairfax Resolves in 1774 which denied Parliament’s authority over the colonies, and in 1776 formulated Virginia’s Declaration of Rights, a precursor to our Declaration of Independence and Bill of Rights.

Thomas Jefferson (Burgess from 1769-1774) whose 1774 paper A Summary View of the Rights of British America clearly expressed our grievances against King George and, of course, he authored our landmark Declaration of Independence in 1776.

George Washington (Burgess from 1758 to 1775) who commanded our Continental Army in the American Revolution, was our first President, and became the Father of our Country.

With the advent of the new Virginia Constitution in 1776, the House of Burgesses was finally dissolved. In its place, the new state government formed an elected Senate and an elected House of Delegates, which continues to govern the Old Dominion today. In 1780, Virginia moved its capital to Richmond, ending Williamsburg’s long run as the center of politics in America.

Sadly, the unity of these deeply patriotic men ended within a few years of achieving our independence in 1783. Defeating the British had been a cause on which all the former Burgesses could agree. With that task accomplished, they began to splinter over how to run the United States.

The Articles of Confederation under which the country operated provided a weak central government and allowed the states a great deal of autonomy. This system did not vest any taxation authority in the central government or allow for a federal standing army or navy. Many worried our new nation could not survive without a stronger federal authority.

Consequently, leaders organized a convention for the fall of 1787 to meet in Philadelphia to address issues with the Articles. Known at the time as the Philadelphia Convention but to posterity as the Constitutional Convention, the delegates did more than fix the Articles; they designed our new Constitution.

Former Burgesses like George Washington who saw the need for a strong central government were called Federalists. They argued that without this change the nation would be virtually defenseless in the face of foreign aggression. Additionally, the numerous currencies and laws of the thirteen states would tend to destabilize the nation, possibly leading to its dissolution.

Those former Burgesses that opposed the new Constitution, Anti-federalists like Patrick Henry and Thomas Jefferson, worried that creating a powerful central authority would simply replace the tyranny of the king with a different tyrant. These men preferred local control and felt states should be governed as each one saw fit.

By 1796, a mere thirteen years after the signing of the Treaty of Paris, the nation had divided into two deeply antagonistic political parties. These men, once so unified in thought and action when they were fighting for our freedom, were never able to bridge the divide regarding the proper direction for America after that freedom had been secured.

So why should the history of the House of Burgesses matter to us today?

In its day, many of the men who assembled there later assembled on the national stage to lead our country. Throughout the crisis with England, it was an eloquent and vocal proponent for American liberty and many of the ideas found in our Declaration of Independence and Constitution were first debated and refined in their meetings.

Tom Hand is creator and publisher of Americana Corner. Tom is a West Point graduate, and serves on the board of trustees for the American Battlefield Trust as well as the National Council for the National Park Foundation. Click Here to Like Tom’s Facebook Page, Americana Corner. Click Here to follow Tom’s Instagram Account.

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Royal, Self-governing, and Proprietary Colonies: Advancing From British Rule Toward American Independence

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Guest Essayist: Tom Hand
The Landing of the Pilgrims, an 1877 painting by Henry A. Baconhttps://en.wikipedia.org/wiki/Plymouth_Colony#/media/File:Landing-Bacon.PNG


When the English began to settle North America in the 1600s, the leaders of the various colonies had different motives. While all colonies exercised their authority in the King’s name, they were not created in the same mold, and some had more autonomy than others. In fact, there were three different types of colonies: royal, self-governing, and proprietary.

Royal colonies were owned and completely administered by the Crown. The Governor and his Council were appointed by the King and these lands existed simply to generate wealth for England. Although few land grants began as a royal colony, by the American Revolution, eight of the thirteen colonies were this type: Virginia (converted in 1624), New Hampshire (1679), New York (1685), Massachusetts (1691), New Jersey (1702), South Carolina (1719), North Carolina (1729), and Georgia (1753).

Self-governing colonies were formed when the King granted a charter to a joint-stock company which set up its own independent governing system. These organizations were essentially corporations formed to make money for the investors.

Like the entrepreneurs of today, a few men came up with an idea, presented it to their friends and associates, and asked them to invest in their plan. Their organizations had wide latitude to appoint leaders and run their business as they wished. Virginia, Massachusetts Bay, Connecticut, and Rhode Island were all initially established as self-governing colonies.

However, these colonies soon found out that their independence was on a short leash. If the colony was poorly administered like in Virginia or if the people proved troublesome like in Massachusetts, these dominions were converted into a royal colony with all the restrictions that came with it. By the time of the American Revolution, only Rhode Island and Connecticut, retained their original self-governing charter. The King always had the final say.

Proprietary colonies were land grants given by the King to one or a few favored men called proprietors. They in turn were to administer these areas for the Crown but in a manner to be determined by them. The proprietors appointed the Governor and his Council, determined the laws (but they had to be approved by the Crown), and ran the territory as they saw fit. While the King had the ultimate authority, the rule of the proprietors resembled that of a monarch.

Maryland was an example of a proprietary colony. It was established by Cecil Calvert in 1632 upon receiving a land grant from King Charles I. Lord Calvert, also known as the 2nd Baron Baltimore, wanted to develop a land where Catholics could openly profess their faith without fear of retribution.

After several starts and stops, settlers for this new colony finally arrived in 1634. The colony prospered and in 1649 Maryland passed the Maryland Toleration Act, the first law establishing religious tolerance in British North America. Although Lord Calvert never visited Maryland, the Calvert family managed the province well and never had their charter revoked.

Not surprisingly, these proprietary colonies which operated without a great deal of input from England, were not as anxious to sever ties with the Mother Country as those with more stringent controls. For example, the Pennsylvania Assembly had to replace five of its initial nine delegates to the Second Continental Congress to get a majority of delegates to be in favor of independence.

Delaware, which was another proprietary colony, had to send an extra delegate, Caesar Rodney, on a midnight 80-mile ride to Philadelphia to break the tie in their delegation so the state could vote for independence. By the time of the American Revolution, only Delaware, Maryland and Pennsylvania remained as proprietary colonies, none of which were hot beds of rebellion.

WHY IT MATTERS: So why should the way in which colonies were organized and governed matter to us today?

The three types of colonies with their different systems of government generated varying attitudes towards English rule and our independence. Understanding these conflicting feelings helps us to better appreciate why not all Americans wanted to break from the Mother Country.

What we see is that those colonies left to govern themselves were fairly content living under English rule and not as anxious to break from England. In retrospect, England may have been wiser to allow all the colonies to operate with more autonomy and to manage them in a less oppressive manner.

SUGGESTED READING: If you are interested in a deeper dive into this subject, Colonial America: A History to 1763 is an excellent book on background, founding, and development of the thirteen British North American colonies. It was written by Richard Middleton and Anne Lombard and originally published in 1992, but it was updated in 2011.

PLACES TO VISIT: The statehouse in Annapolis, Maryland, is an incredibly beautiful building and a great example of architecture from our colonial era. It is the oldest state capitol in continuous legislative use and is the only statehouse ever used as the nation’s capitol. Seeing it and the rest of this historically significant seaside city would be well worth your time.

Until next time, may your motto be “Ducit Amor Patriae,” Love of country leads me.

Tom Hand is creator and publisher of Americana Corner. Tom is a West Point graduate, and serves on the board of trustees for the American Battlefield Trust as well as the National Council for the National Park Foundation. Click Here to Like Tom’s Facebook Page, Americana Corner. Click Here to follow Tom’s Instagram Account.

 

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Building America’s Political House on Solid Ground: Foundations of Faith, Plymouth Rock and the Mayflower Compact

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Guest Essayist: Adam Carrington
“Embarkation of the Pilgrims” by Robert W. Weir, 1844, United States Capitol Rotunda. John Carver, William Bradford, Miles Standish kneeling in prayer during their voyage to North America; open Bible, symbols within the painting of God’s promises.https://en.wikipedia.org/wiki/Mayflower#/media/File:Embarkation_of_the_Pilgrims.jpg


In the Gospel of Matthew, Jesus says, “Everyone then who hears these words of mine and does them will be like a wise man who built his house on the rock.” He contrasts these persons with him who “hears these words of mine and does not do them.” This latter man built his house “on the sand.” When rain and storms come, the first house stands firm while the second, not only falls, “but great was the fall of it.”

Americans must ask upon what kind of foundation they built their political house. What first principles created us, define us, and thus should continue to guide us going forward? Some have posited that our rightful foundation rests on a literal rock—Plymouth Rock. By saying so, they mean that the Puritans who came to New England in 1620 defined our Founding and should prescribe our tomorrow.

These persons point to the Mayflower Compact, the charter those settlers signed as the basis for their political community. This document clearly displays the political ends which these Puritans pursued and the means they established in that pursuit. We must declare them and then assess them. We thereby must ask whether this foundation of Plymouth Rock in 1620 is in fact our own as Americans in 2022.

The Compact says that it seeks to “plant” a colony. More importantly, it states what it intends to do in establishing that political community. It first lists “the Glory of God.” It follows with the “advancement of the Christian Faith,” then the “honour of our King and Country,” and, finally, their “better ordering and preservation.” Together, these make up the ends of their political community.

We must see in the first purpose the overarching one, the final end to which all others in the Compact strive. The Puritans were defined by a faith that placed God’s glory the highest in priority and all-comprehensive in its pursuit. Thus, they must advance the Christian faith, increasing who glorified God. Their honoring king and country also assumed a religious element, since they saw King James as a Christian prince and England as a Christian nation. Their honor was a mere reflection of God’s glory. Even good ordering and preservation linked back to God’s glory, since the Compact says they will so do in “furtherance of the ends aforesaid.”

Clearly, the foundation laid on Plymouth Rock required a particular kind of religious subscription by all citizens and officers in the colony. To be a rightful citizen, one must be a rightful believer. Did Americans who wrote the Declaration of Independence and ratified the United States Constitution build on this foundation or on another?

The Founders did not deny the importance of God in general or the Christian faith in particular. The Declaration of Independence mentions God no less than four times. God authors the laws of nature. He is the Creator who “endows” human beings with equal rights. The Declaration also calls God the “Supreme Judge of the world,” to whom they make the ultimate appeal for the justice of their revolution. Finally, the document concludes by a “firm reliance on the protection of divine Providence.”

But the Founder’s God took a different approach to religious practice than did the one whose glory the Puritans pursued. The Puritans demanded as a political act of citizenship on earth uniform practice aligned with citizenship in Heaven. In other words, religious liberty as we understand they rejected as hostile to the proper ends of good government.

Our Constitution, while not contradicting the Declaration, made sure that religious liberty helped define the political implications of God. The Constitution denied all religious tests for holding national office. Its First Amendment rejected the establishment of a national church as well as protecting the free exercise of religion for all. The purpose of human life might be to glorify God. But our politics would leave wide sway for persons to come to that conclusion on their own. Our laws would let persons who so decided additional liberty to consider how exactly to glorify God. Our laws would not enforce the advancement of Christianity. But we would permit its spread and protect the right of its adherents to share, to persuade throughout the land. We must also say, then, that it protected the right of conscience for even those who rejected this view of God or the existence of God altogether.

Thus, we understand that our foundation owes some influence to Plymouth Rock. Yet we cannot call it our perfect and complete foundation. We did not follow its ends in the exact same way. Instead, the Mayflower Compact influenced the Founding even more in the additional means it posited to run its political community. To achieve their ends, they wrote they would “Covenant and Combine ourselves together in a Civil Body Politic.” They founded a political regime on the basis of consent, of the willing agreement of their citizens. No outside tyrant imposed their ends upon them. In the same way, our Constitution opens that “We, the People,” did “ordain and establish” the Constitution for the purposes written therein.

Moreover, they said this new political community would, “constitute and frame…just and equal Laws, Ordinances, Acts, Constitutions and Offices.” They committed themselves to the rule of law, not the fiat of human beings. These Puritans also declared that rightful laws should contain two qualities: justice and equality. They must pursue the good and do so equally for all. Our Founding agreed. The Constitution’s Preamble gives one of its purposes as “to establish justice.” The Declaration’s commitment to equality informs so much of the Constitution, but especially the Fourteenth Amendment’s equal protection clause, which says that no state shall deny any person the equal protection of the laws.

Thus, we see ourselves on a different foundation than that laid on Plymouth Rock. Ours did not deny God but recognized Him as one of political and religious liberty. At the same time, we took much in the means from Plymouth, especially consent of the governed and just as well as equal laws. Was this foundation on a true rock or did we build a sandy foundation doomed to a great fall? We find the answer in the experience of the last 250 years. America endured. More than endured, it thrived. It rose to become a beacon of human equality and liberty, the “last, best hope” as Abraham Lincoln once called it. Its true foundation rested on those commitments—human equality and liberty—as understood through the laws of nature and of nature’s God. Those principles still hold out the promise of provision, provision of a strong foundation against all storms, internal or external. It does; but only if we continue to build wisely and faithfully upon it.

Adam M. Carrington is an Associate Professor of Politics at Hillsdale College. There, he teaches on matters of Constitutional law, American political institutions, and separation of powers. His writing has appeared in such popular forums as The Wall Street Journal, The Hill, National Review, and Washington Examiner. His book on the jurisprudence of Justice Stephen Field was published in 2017 by Lexington. Carrington received his B.A. from Ashland University and his M.A. and Ph.D. from Baylor University. He lives in Hillsdale with his wife and their two daughters.

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“City Upon a Hill” and the Mayflower Compact: Forming a Constitutional Republic Sustained Through Civic Virtue, Natural Rights and Liberty

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Guest Essayist: Tony Williams
Portrait of Massachusetts Bay Colony Governor John Winthrophttps://en.wikipedia.org/wiki/A_Model_of_Christian_Charity#/media/File:John_Winthrop.jpg


Throughout U.S. history, Americans have appealed to the idea that the country is a “city upon a hill” and exceptional in its natural rights republican principles and constitutional government. These ideas were present at the time of the American founding as the founders had a sense of destiny and an understanding of the unique historic moment.

The concept of a “city upon a hill” originated with Massachusetts Bay Colony Governor John Winthrop’s “Model of Christian Charity” sermon aboard the Arbella. He described the purpose of establishing a godly society to work towards the common good, just government, and civic virtue. Winthrop’s thinking about a “city upon a hill” was influenced by covenant theology: “We must consider that we shall be as a city upon a hill, the eyes of all people are upon us; so that if we shall deal falsely with our God in this work we have undertaken and so cause him to withdraw his present help from us, we shall be made a story and a by-word through the world.” The same ideals about a religious and civil covenant with God and each other were present in the Pilgrims’ “Mayflower Compact.”

Pilgrim and Puritan thinking about a “city upon a hill” focused on establishing a pure church that was free of the perceived corruptions of the Anglican Church as well as creating a civil commonwealth on biblical principles. While they were very specific to colonial Massachusetts, they influenced the founders’ purpose to create a republic based upon natural rights and liberties. American exceptionalism thus enlarged to a national vision at the time of the founding.

After the Constitutional Convention, a vibrant political debate centered on the proposed Constitution and addressed larger political principles upon which the American republican regime was to be built. This deliberation took place in newspaper essays, pamphlets, state ratifying conventions, and in public spaces such as taverns. It was one of the greatest debates about human nature, political principles, and government the world has seen.

The debate revealed significant differences of political philosophy among American statesman as noted by numerous historians and political scientists. While the Federalists, who supported the new Constitution, and Anti-federalists, who opposed it, acknowledged that the Articles of Confederation had deficiencies that needed to be remedied, they differed significantly on the character of the changes that were needed.

The Federalists wanted a more energetic government than had existed under the Articles of Confederation because they believed it would promote better governance and thereby protect liberty. Of particular note, they argued for a stronger executive and independent judiciary under the principles of separation of powers and national supremacy.

On the other hand, the Anti-federalists admitted that the national government needed greater powers to regulate trade and to tax, but they were deeply concerned about a powerful executive, a corrupt Senate, and an imperial judiciary or perhaps a cabal of those branches acting tyrannically against the liberties of the people and the powers of the states.

This great deliberative moment during the American founding belies the fact that the opposing sides of the debate shared several fundamental republican tenets in common. They believed in popular sovereignty and representative government, limited government, federalism, separation of powers, the liberties of the people, and other essential constitutional principles even if they differed over the best means to achieve them in the framing of the constitutional order.

The Federalists and Anti-federalists also shared common roots in their thinking about government and human nature. They were influenced by ancient history and philosophy, Enlightenment ideas, the English tradition and colonial experience, and Protestant Christianity. Their Protestantism contributed to their thinking about resistance to tyranny, religious and civil liberty, and American exceptionalism.

The Federalist has several references to American exceptionalism. Most notably, in Federalist #1, Alexander Hamilton famously stated, “it seems to have been reserved to the people of this country to decide, by their conduct and example, 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.” The American opportunity to discuss those principles of government by “reflection and choice” was not merely a coincidence. Many of the founding generation thought it a sign of divine providence in their creation of a virtuous constitutional republic.

James Madison demonstrated this belief more directly in Federalist #37, when he wrote, “It is impossible for the man of pious reflection not to perceive in it a finger of that Almighty hand which has been so frequently & signally extended to our relief in the critical stages of the revolution.” Similar words were written by George Washington and others reflecting on the unlikely victory of the American Revolution and the founding.

The Anti-federalists were also pious Christians whose religious views shaped their understanding of the republican experiment in America. Brutus (widely assumed to be New Yorker Robert Yates) wrote his first essay about the danger of a large republic and struck a chord of Puritan covenant theology. Much like John Winthrop’s “City Upon a Hill,” Brutus wrote that if Americans were faithful and built a virtuous republic, they would be blessed. “[If] you will lay a lasting foundation of happiness for millions yet unborn; generations to come will rise up and call you blessed.” If they established a despotism or tyranny that destroyed liberty, they would be punished and, “posterity will execrate your memory.”

President Washington used the occasion of his First Inaugural Address to advance the republican principles of free government and free society in the new nation. He stated, “The preservation of the sacred fire of liberty, and the destiny of the Republican model of Government, are justly considered as deeply, perhaps as finally staked, on the experiment entrusted to the hands of the American people.” This assertion of American exceptionalism made the American experiment in liberty a sacred obligation not only for the destiny of America but as a model of republican government for the world.

Abraham Lincoln would echo these dutiful sentiments at Gettysburg when he said, “that this nation, under God, shall have a new birth of freedom –and that government of the people, by the people, for the people, shall not perish from the earth.”

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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Consent of the Self-governed: Mayflower Compact and the City of God on Earth

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Guest Essayist: Joerg Knipprath
Signing the Mayflower Compact 1620, a painting by Jean Leon Gerome Ferrishttps://en.wikipedia.org/wiki/Mayflower_Compact


During the Middle Ages, a distinct separation of church and state existed, at least in theory. The pope in Rome and his bishops and priests throughout Western Christendom took care to protect the souls of the people. The emperors, kings, and other secular nobles protected the physical safety of their subjects. The subjects would “repay to Caesar what belongs to Caesar and to God what belongs to God.”

In fact, matters were more ambiguous, because popes frequently called on secular rulers for protection, and the latter looked to the former to confirm the legitimacy of their rule in the eyes of God and their subjects. Moreover, the ecclesiastical rulers, including the pope, also exercised sovereign political control in various territories and sat in the political councils of others. The emperors and other nobles, in turn, frequently sought to control the appointment of ecclesiastical officials within their domains and, in the case of the king of France, to control the selection of the pope himself.

With the split in Western Christendom caused by the Reformation, and the emerging concentration of power in single political rulers in national kingdoms and lesser principalities, two significant changes occurred from the medieval order. Those changes are important for understanding what led to the Mayflower Compact.

First, in the struggle over who had supreme authority in the physical world, emperors or popes, kings or bishops, the balance shifted decisively in favor of the secular rulers. A secular ruler might become the head of a religious establishment, as happened in England beginning with Henry VIII. Less drastically, the ruler might ally with the bishops to control the authority of the pope in matters temporal or secular, as happened to the Church in France. Or, under the doctrine of cuius regio, eius religio (“whose realm, their religion”), the religion practiced by the prince became that of his subjects. The last was the situation in most German states after the Peace of Augsburg in 1555 ended the initial wave of religious wars between Lutherans and Catholics.

The second change was the renunciation among a number of Protestant dissenters of the episcopal structure of the Catholic, Anglican, and Lutheran churches. Whatever might have been the dissatisfaction of Anglican and Lutheran theologians with Catholic doctrine, practices, and administration, the dissenters viewed those established Protestants as merely paler imitations of the Church of Rome. Building on the teachings of the lawyer John Calvin in Geneva, they emphasized salvation through faith alone and living in a community of the faithful governed by themselves or by some elected elders.

In Scotland, these dissenters formed the Presbyterian Church. In England, the Calvinist dissenters became the “Puritans.” They sought to purify the Church of England from various Catholic practices and doctrines while continuing to associate their congregations with the official church. Their goals seemed within reach after the English Civil Wars in the 1640s. They were well represented in the Rump Parliament and among the military leaders, such as Oliver Cromwell and John Lambert. The Anglican majority proved too immovable, however, and, after the Restoration, many Puritan leaders left England. Another group, however, believed that the Anglican Church was hopelessly corrupt, and that the only available path to personal salvation was through separation. This group has become known as the “Pilgrim Fathers,” although they referred to themselves by other names, such as “Saints.”

Both groups of English dissenters established settlements in New England not far apart. Their theological differences, however, kept them separated for decades. Not until 1690 was the Pilgrims’ Plymouth colony absorbed by the much larger Massachusetts Bay Colony.

The two groups shared certain characteristics, which contributed to the development of American constitutional theory. It is part of American mythology that Europeans came to English North America in search of religious freedom, which they joyfully and readily extended to all who joined them. The matter is much more nuanced. While such toleration might well describe the Quaker colony of Pennsylvania and the Catholic colony of Maryland, both of which were formed later, the Pilgrims and Puritans had a different goal. Theirs was to establish their respective visions of a Christian commonwealth, the City of God in the New World. Having left England for a wilderness because of despair over the allegedly corrupt nature of the Anglican Church, never mind the Catholic one, neither group was inclined now to welcome adherents of such beliefs to live among them. Religious freedom, indeed, but for individuals of like beliefs in a community gathered together for mutual assistance in living life according to those beliefs. Conformity in community, not diversity of doctrine, was the goal. God’s revealed law controlled, and governance was put in the hands of those who could be trusted to govern in accordance with that law.

The two groups also shared another characteristic, alluded to above: voluntary community. The individual alone could find salvation through studying and following the Bible. As an inherently social creature, he could, of course, join with others in a community of believers. The basis of that community would be consent, individual will, not an ecclesiastical order based on apostolic succession. Some years after arriving in the New World, the Massachusetts Bay Puritans in the Cambridge Platform of 1648 declared that “a company of professed believers ecclesiastically confederate” is a church, with or without officers. This was the origin of the Congregational Church, founded on a clear separation from all forms of hierarchical church government.

The congregation would govern itself according to the dictates of its members’ consciences and the word of God, while in the secular realm it would be governed under man’s law. What would happen, if man’s law, and the teachings of the established church, conflicted with the word of God, as the believers understood it? What if, to resolve such conflicts, that religious community left the existing secular realm? A political commonwealth of some sort is inevitable, as most political theorists claim. That is where the experience of the Puritans and the Pilgrim separatists differed.

The Puritans formed their Massachusetts Bay Colony on the same basis as the Virginia Company had been formed to settle at Jamestown two decades earlier. It was a joint stock company, somewhat analogous to a modern business corporation, formed by investors in England. The company’s charter provided a plan of government, which included meetings of a General Court composed of the freemen of the Company. The charter failed to specify where these meetings were to occur. English custom was that such shareholder meetings took place where the charter was kept. Some historians have written that the charter was surreptitiously taken from the company’s offices and spirited to the New World, thereby making Boston the site of the General Court. That is a suitably romantic story of intrigue and adventure, indeed. More prosaic is that the change in locale occurred through the Cambridge Agreement of 1629 between the Company’s majority, composed of its members seeking to establish a religious community in Massachusetts, and the minority which was interested in the possibilities of commerce and profit. The majority was permitted to take the charter and thereby secure a de facto independence from English authorities for a half-century. The minority received certain trade monopolies with the colony.

The formation of the Massachusetts Bay Colony, like the Virginia Colony’s, was based on voluntary association and contract. Once the mercantile interest of the English investors was severed, the charter provided a political constitution for the colony’s governance. But the political consequence was the by-product of a commercial enterprise. The best example of an organic constitution created by consent of a community’s members for the express purpose of self-government was the Mayflower Compact concluded almost ten years earlier.

After vigorous attempts at suppression of them by King James I for their separatist beliefs, many Pilgrims fled to the religiously more tolerant United Provinces of the Netherlands. Eventually, however, English pressure on the Dutch induced the Pilgrims to leave their temporary domicile in Leyden. Having procured a ship and picked up additional travelers in England and a license from the Virginia Company to settle on its land, a group of Pilgrims embarked on their journey westward to their future Zion.

Upon reaching the New World in late November, 1620, at what today is Provincetown, Massachusetts, they discovered to their dismay that they had arrived a few hundred miles north of the Virginia Company’s boundary. Many of the 101 passengers aboard their small ship, the Mayflower, were ill, supplies were dwindling, and bad weather loomed. The group eventually decided to land on the inhospitable coast, rather than continue to sail to their allotted land. Before they did so, however, 41 men signed the Mayflower Compact on November 21, 1620, under the new calendar. It must be noted that fewer than half of the men were Pilgrims. Many were “adventurers,” a term of art which referred to individuals sent over by the Company of Merchant Adventurers to assist the colony, tradesmen and men such as the military leader, Myles Standish. The Company had lent money to the settlers. Repayment of those loans depended on the colony’s success.

Not having the luxury of a drawn-out convention meeting under agreeable conditions, the settlers made the Mayflower Compact brief and to the point, but also rudimentary. In significant part, it declared, “Having undertaken for the glory of God, and advancement of the christian [sic] faith, and the honour of our King and country, voyage to plant the first colony in the northern parts of Virginia; [we] …combine ourselves…into a civil body politick, for furtherance of the ends aforesaid ….” Framing “just and equal laws, ordinances, acts, constitutions, and officers, … as shall be thought most meet and convenient for the general good of the colony …,” was left to another day.

The Mayflower Compact is a political application of the voluntary consent basis of religious congregation which the Pilgrims accepted. There was renewed interest in social contract theory as the ethical basis of the state, as an alternative to the medieval theory of a hierarchical political order created by God. Both approaches, it must be noted, were also used by defenders of royal absolutism in the 17th century. Bishop Robert Filmer in his Patriarcha adapted Aristotle’s connection between the family and the state as social institutions and Cicero’s correlation of monarchy and the Roman paterfamilias, to present the monarch as having whatever power he deems needed to promote the public welfare. To give his contention a more appealing, religious basis, Filmer wrote that God gave Adam absolute control over the family in Genesis, thereafter to the three sons of Noah, and finally, as the nations grew, to monarchs.

Thomas Hobbes used contract theory in his work Leviathan to justify royal absolutism. Humans seeks to escape the abysmal state of nature, where life is “solitary, poor, nasty, brutish, and short,” because a state of war exists of all against all. To gain physical and psychological peace, the desperate people enter into a covenant with a powerful ruler. In return for the ruler’s protection and a life of security, they agree to surrender whatever rights they may have had in the state of nature as the ruler deems it necessary. One exception is the right to life.

One might view the Mayflower Compact as an iteration of the Hobbesian covenant. Indeed, the early governance of the colony at times seemed like a military regime, an understandable state of affairs considering the existential danger in which the residents found themselves over the first few years. Alternatively, one might consider the arrangement as simply a settlement within the existing English state, like any town in England. After all, the Pilgrims expressly avowed themselves to be “the loyal subjects of our dread sovereign Lord, King James,” declared that their voyage, in part, was for the “honour of our King and country,” and noted that they were signing during “the reign of our sovereign Lord, King James.”

One might, however, view the Mayflower Compact as a glimpse into the future, to the work of the social contract theorist John Locke a half-century later. The Pilgrims had removed themselves from an existing commonwealth whose laws they found oppressive. Their persecution over their religious faith was a profound breach of the Lockean social contract under which government was created as a useful tool better to protect a person’s personal security and estate. One remedy for such a breach was to leave political society. For Hobbes, this would have been impossible, because it would have placed the individual back in the intolerable state of nature. For Locke, however, the state of nature of human society was not as forbidding. Locke had more of that Whig confidence in man’s goodness. Government was just a way to deal with various inefficiencies of the state of nature in promoting human flourishing, rather than a Hobbesian precondition to such flourishing.

Solitary contemplation and Bible study allowed one to recognize the glory of God and to deepen one’s Christian faith, a journey made more joyful by joining a religious congregation of believers. In similar manner, joining together in a “civil body politick” as set forth in the Mayflower Compact aided in achieving those objectives. Dealing efficiently with quotidian matters of the physical world permitted more contemplation of the spiritual. Happily also, despite all the challenges the New World presented, it had sufficient bounty to give sustenance to the saints in the new Zion, to “lead the New Testament life, yet make a living,” as the historian Samuel Eliot Morison summarized it.

The singular importance of the Mayflower Compact was in the foundation it provided for a theory of organic generation of a government legitimized by the consent of the governed. Self-government became realized through a contract among and for those to be governed. Later American constitutional theories about the people as the source of legitimacy for government had to deal with the practical difficulty of having many thousands of people in each of the already existing political arrangements called “states.” American writers sought to get around that difficulty by having state conventions rather than ordinary legislatures approve the Constitution, a logically rather precarious substitution. Still, the Mayflower Compact set a readily understood paradigm.

A more troubling lesson drawn from the New England colonies, is to recognize the unsettling connection between seeking religious freedom for oneself and prohibiting the same for others. It requires confronting the tension between community and individuality, law and liberty. The right to associate must include the right not to associate. The right to worship in association with other believers must include the right to reject non-believers. To what extent might the rights of the majority to create their “civil body politick” as an embodiment of their City of God on Earth override the rights of others in that community to seek a different religious objective, or no religious objective at all? Massachusetts Bay provided one answer. New settlers were limited to those who belonged to their approved strain of Puritanism. Dissenters were expelled. Those who failed to get the message of conformity were subject to punishment, such as four Quakers who were publicly executed in 1659 after they repeatedly entered the colony and challenged the ruling authorities. The Pilgrims at Plymouth were more accommodating to others, if grudgingly so, because their original settlers had included a substantial number unaffiliated with their iteration of Christianity.

The framers of American constitutions had to face those issues, and tried to balance these interests through concepts such as free exercise of religion, establishment of religion, and secular government. The problem is that such terms are shapeshifters which allow users to project diverse meanings onto them. These difficulties have not disappeared.

Both the organic creative aspect of the Mayflower Compact and its theocratic imperative were found in other constitutional arrangements in New England. The “Fundamental Orders” of the Connecticut River towns in 1639, a basic written constitution, set as their purpose to “enter into…confederation together, to maintain and preserve the liberty and purity of the gospel of our Lord Jesus which we now profess, as also the discipline of the Churches, which according to the truth of the said gospel is now practiced among us ….” As in Massachusetts Bay, justice was to be administered according to the laws established by the new government, “and for want thereof according to the rule of the word of God.” The Governor must “be always a member of some approved congregation.”

The colonies of Providence and Portsmouth in today’s Rhode Island, established in the 1630s, had similar founding charters as the Mayflower Compact, because they, too, were formed in the wilderness. A distinctive aspect of those colonies was that they were founded by Puritan dissenters, Roger Williams and Anne Hutchinson, respectively, who had been expelled from Massachusetts Bay. Shaped by their founders’ experiences, these colonies allowed freedom of conscience and did not establish an official religion in the manner of other New England settlements.

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

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King and Parliament in 17th Century England vs. a Self-governing People and President in the U.S. Constitution

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Guest Essayist: Adam Carrington
Battle of Naseby, victory of the Parliamentarian New Model Army, under Sir Thomas Fairfax and Oliver Cromwell, over the Royalist army, commanded by Prince Rupert, at the Battle of Naseby (June 14, 1645) marked the decisive turning point in the English Civil War.https://en.wikipedia.org/wiki/English_Civil_War#/media/File:Battle_of_Naseby.jpg


In the last essay, we discussed the British political system of the 17th century. That system consisted of King and Parliament, supposed to share rule but really locked in a battle for supremacy. While the division of power between them originally consisted of their number—the one king as well as few Lords and the many Commons in Parliament, the division between legislative and executive power grew up in the midst of the English Civil War.

King and Parliament did not fight this war merely for which institution would wield more power. A religious dispute arose, lighting the fires of war as well. In this religious dispute, we see much with which to compare to the American Constitution and the Republic that operates through it.

Every society holds some things in common. Short of total communism, they do not hold everything communally, but divide everything between personal ownership and the common stock. This division includes more than land or stuff. It includes principles. By what a society holds in common, they thereby define who they are and what they should do as a people.

For 17th century English society, people considered religion an essential glue holding them together. They saw God and His commands as essential to right believing and right living. They saw those commands as stretching to public actions pertaining to law and custom. Therefore, they assumed as necessary some king of religious uniformity. A common God understood by a common theology and common church helped to make England one nation. The English Reformation, with King Henry VIII declaring a national church apart from Roman Catholicism, only bolstered the link between national identity and religious conformity. There was a Church of England with dissenters often punished and forced to attend the official state religious body.

This history also bolstered the position of the king within England’s national religion. The Act of Supremacy (1534) had named Henry VIII “Supreme Head of the Church.” Since then, for theological reasons, English monarchs have taken the slightly different title of “Supreme Governor of the Church of England.” Still, the monarch stands as the head of the church.

This view has a utopianism to it. It hopes for uniformity of practice religiously to create a kingdom that conforms to God’s rules here on earth. It sees a unity in the king that helps to bring about this conformity through his or her governing of the Church of England. We see in here some remnants of the old divine right of kings. As God set him on the throne, so the king must made sure right religion reigns so long as he does reign, too.

The civil war saw armies with competing theologies, even as they fought under the banner of Crown or Parliament. The Cavaliers and the Roundheads, as they were called, fought over issues such as religious rites and how to structure church government. So violent did this conflict go that, in 1649, King Charles I was beheaded after a questionable trial by a small portion of Parliament.

America took a different track, both regarding religion and the king’s role related to it. In the United States Constitution, our First Amendment had two clauses related to religion. The first protected its free exercise, the second forbade the national government from making any law regarding establishing a religion. There would be no “Church of America” like existed across the pond. Moreover, the Constitution forbade any religious test be required to hold federal office.

Taken together, these provisions set up a baseline of religious liberty for all. State establishments and tests did continue in some places, including an established Congregational church in Massachusetts as late as 1833. However, even most states quickly adopted similar provisions in their own laws and constitutions.

This position took an anti-utopian stance. It saw religion as something that cannot hold us together because we must leave the individual conscience free to worship or not worship God as that person sees fit. No coercion should fall on the dissenters from majority belief.

This point mattered for the president. He would never be head of a church. He would never protect doctrinal purity. This point, again, connected with the lack of divine right. The people set him up to rule, not his birth. He would rule for four-year terms, not for life.

But our presidents do take some role in religious expression. George Washington’s Farewell Address warned of the need for religious belief among the people. That belief would shore up national morality among the ultimate human rulers, We the People. It would aid in public and private happiness, in the ruling of self that is a prerequisite to running a popular government.

Moreover, since Washington, most presidents have published proclamations or given speeches that thank or make requests of God. John Adams warned in 1798 that our Constitution was made for a religious people and the need to cultivate those beliefs, consistent with human liberty. Perhaps the greatest speech ever given on American soil, Abraham Lincoln’s Second Inaugural, consisted of an extended meditation on God’s will in the American Civil War and an affirmation of God’s goodness in the midst of so much hardship and bloodshed.

These appeals to religion should be seen, not as coercions to make one believe, but as encouragements, as attempts at persuasion. In that, we have come a long way from the English Civil War. Much divides us that people think we must hold in common these days. But we continue to hold the right to believe as we see fit and to act on those beliefs within reason, within not hurting others. We can thank our Constitution for that and be thankful for a president who is chief executor of the laws, not governor of an American church.

Adam M. Carrington is an Associate Professor of Politics at Hillsdale College. There, he teaches on matters of Constitutional law, American political institutions, and separation of powers. His writing has appeared in such popular forums as The Wall Street Journal, The Hill, National Review, and Washington Examiner. His book on the jurisprudence of Justice Stephen Field was published in 2017 by Lexington. Carrington received his B.A. from Ashland University and his M.A. and Ph.D. from Baylor University. He lives in Hillsdale with his wife and their two daughters.

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Parliament in 17th Century England and Why America Does Not Have a King

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Guest Essayist: Adam Carrington
Æthelstan, considered the first king of England, 895-939 AD. A sixteenth-century painting in Beverley Minster in the East Riding of Yorkshire of Æthelstan with Saint John of Beverleyhttps://en.wikipedia.org/wiki/%C3%86thelstan#/media/File:Painting,_Beverley_Minster_-_geograph.org.uk_-_1317269.jpg


When Americans speak of the Civil War, we of course have our own conflict (1861-1865) in mind. However, the term “civil war” does not name one conflict in world history. It categorizes a certain kind of conflict. Many political communities have suffered from civil wars. Such conflicts pit one portion of a country against another in armed battle.

Human beings often turn civil wars into the worst of conflicts. They do so because of why civil wars occur. People will invade other countries for money, for glory, for responding to a slight, perceived or real. Civil wars nearly always become conflicts about what a country is. Combatants spar over what principles truly define the country and who rightfully belongs as citizens within it. Our civil war centered those questions around the issue of slavery.

England had its own civil war two centuries before America’s. From 1642 to 1651, with little respite, Englishmen formed armies and killed each other in ugly, pitched battles. They did so over competing visions of England. These competing visions divided along two lines. The first was political, a battle over the English constitution regarding who should rule the country and through what kinds of institutions, especially the institutions of the king and the Parliament. The second was religious. Devoutly Christian persons on both sides, and those caught in-between, desired that England adhere in true fashion to the true God.  But, as with the constitution, they did not come to the same answers. In this essay, we will examine the political differences and compare them to America’s constitutional system. In the following, we will take up the religious question of the English Civil War in relation to the American experiment.

To understand the political question of England, we must delve into the history and development of how countries organized themselves politically. In ancient and medieval times, political thinkers divided all good forms of political rule into three camps: the rule of the one (monarchy), the rule of the few (aristocracy), and the rule of the many (polity). Many of the same men extolled the good of a fourth option they referred to as the “mixed regime.” This form of government involved sharing powers among some combination of the one, the few, and the many. They intended this mixture to ensure that a country would receive the good qualities of each pure governmental form and suppress potential vices that could turn monarchy to tyranny, aristocracy to a wealth-obsessed oligarchy, or a polity into a mob-terrorizing democracy (democracy was a negative term at the time).

The English system in the 17th century had developed into one that shared power between the king and the parliament. In so doing, it incorporated the rule of all three groups. The monarch represented the rule of one, Parliament’s House of Lords the rule of the few, and Parliament’s House of Commons the rule of the people.

Such a system is impossible under our form of government. It first is so because of our principles. Kingship and aristocracy, in their pure form, begin with human inequality as the basis for ordering a political society. So, the sharing of rule comes between equals and un-equals within the country. However, our Declaration of Independence states as a “self-evident” truth that “all men are created equal.” This equality means no person can rule another without consent. No person can rule another unless the ruled can set limits on the ruler and even remove and replace him from time to time.

We legalized our commitment to equality in several places in the United States Constitution. Most notably for this issue, Article I, Sections 9 and 10 deny both the state and the national government from bestowing a “title of nobility.” The Constitution thus forbids the creation of a legal caste, a codified aristocracy who then receives special treatment by the law. Therefore, we cannot have a “House of Lords” because no lords, or dukes, or any other such legally titled persons reside among us. We cannot have a king because no hereditary right to such a position can exist for us. Our system of elections reinforced this point. Our Congress and our president both come into office by means of elections. These elections prove that “We, the People” exercise the ultimate or sovereign power through these officers, not act as subjects under their independent fiat. Our rejection of a king was of particular vehemence on this point, not wishing to elevate one man in such a way above his fellow citizens.

But the British system has evolved dramatically from this earlier setup. The English Civil War pitted Parliament against the English King, each with an army fighting for its claims. Instead of sharing power, both sought to rule outright, with the other subservient. They thus sought to make easier the exercise of the worst vices of each system. During this time, for example, we continued to see English monarchs claim their rule based in some form of divine right. God placed them on the throne and that meant something akin to absolute power in relation to parliament and English subjects.

America’s system, again, rejected these kinds of arguments. For one, we rejected the divine right of kings because of our commitment, discussed above, to human equality. Thomas Jefferson famously said that no person was born with spurs or with a saddle, the former then knowing he had a natural right to ride the latter. Human equality meant no legally born kings to subjects. Instead, the people, again, created offices to which they delegated their sovereign power to rule. That difference is why, in American history, persons often called presidents “kings” to disparage them (Andrew Jackson and Abraham Lincoln are two examples).

For another, Americans intentionally divided power among its political institutions in a way different from that which enveloped the English in the 17th century. They did not divide by who ruled, since the people ruled entirely. They divided by governmental function. They divided these functions and thus institutions into three, not England’s two: a Congress to make laws, a president to enforce them, and a judicial system to decide disputes based on the law. This separation of powers has proven far more consistent and effective over its history.

The English system, in fact, partly followed America’s route even before America existed. Parliament more and more took the lead for making laws—the legislative power. The monarch still possessed the power to veto legislation parliament passed, keeping such bills from becoming law. However, the monarch took the lead on matters we now would call executive and judicial. The king enforced the laws. He did so through ministers and other officers who arrested and restrained persons or collected taxes. The king enforced the law through his judges. Thus, England has had one court named The King’s Bench. During the commonwealth period (1649-1660), England acted as a government without a king. But they failed to truly form a government of, by, and for the people, succumbing to a de facto king in Oliver Cromwell. By 1660, England returned to a mixed regime of sharing power between Parliament and monarchy.

Over time, our president fared much better than England’s monarch. Our president only has grown in power over the centuries. He has done so as each officeholder has cultivated his role as representative of the people. As the legitimacy of rule by kings faded, though, so did the real political powers of the monarch. Vetoing legislation, for instance, is now virtually unthinkable. The British courts occupy a firmly independence existence. Parliament eventually gained total supremacy, a fate made nearly certain by the “Glorious Revolution” of 1688. Due to that dominance, the English system lacks a true separation of powers. The Prime Minister in the House of Commons occupies the real role of executive head. Meanwhile, the British king or queen now occupies a figurehead position. TV shows like “The Crown” argue for the virtues of this circumstance. They claim it allows for the monarchy to represent the country as a whole, to reside above partisanship, and to guide softly by manner, gesture, and example. But this mostly covers up a loss of political power near total in scope.

Thus, the modern British government has moved nearly all real political power, not just into Parliament, but into its House of Commons. Legislative and executive power both reside therein, with the Prime Minister doing both. Our system maintained its separation by keeping a strong executive with real powers distinguished firmly from the legislative branch. In doing so, we built a system both popular in basis and workable in execution. We maintained our independent executive power by making him not a creation of divine right but of the sovereign people. And that will continue, so long as the Constitution continues to rule the United States of America.

Adam M. Carrington is an Associate Professor of Politics at Hillsdale College. There, he teaches on matters of Constitutional law, American political institutions, and separation of powers. His writing has appeared in such popular forums as The Wall Street Journal, The Hill, National Review, and Washington Examiner. His book on the jurisprudence of Justice Stephen Field was published in 2017 by Lexington. Carrington received his B.A. from Ashland University and his M.A. and Ph.D. from Baylor University. He lives in Hillsdale with his wife and their two daughters.

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Memorial Day – A Day of Remembrance Written in the Hearts of the American People

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By Jay McConville

America is the great nation that it is because we revere and honor the memory of brave souls who gave their lives to preserve it. Let the memory and sacrifices of those who have come before, for liberty purchased at such an immeasurable price for future generations, be forever written in our hearts.

“Whether we observe the occasion through public ceremony or through private prayer, Memorial Day leaves few hearts unmoved. Each of the patriots whom we remember on this day was first a beloved son or daughter, a brother or sister, or a spouse, friend, and neighbor.” (President George Herbert Walker Bush, Proclamation 6442—Prayer for Peace, Memorial Day, 1992)

Regardless of one’s faith tradition, one must acknowledge that the Bible is one of the greatest books in all human history. Many expressions we use daily come from it, and people often use biblical phrases without ever knowing it. In Jeremiah, from the Old Testament, one such memorable phrase relates to the covenant that God made with Israel. Jeremiah 31:33 (NIV) reads, in part, “I will put my law in their minds and will write them on their hearts.” This is repeated in the New Testament letter to the Hebrews (10:16, NIV), which reads, “I will put my laws in their hearts, and I will write them on their minds.”

While biblical scholars may disagree on the specific meaning of this verse, it is generally believed to indicate that the laws, in this case from God, are followed not merely out of obedience, but because we accept them as part of us at a much deeper level. Those with the laws written in their hearts live those laws as part of their very being.

I am partial to President H.W. Bush, who I quoted above, for personal reasons. He was my Commander-in-Chief during the war, that I was part of as an Army Officer, Desert Shield and Desert Storm. Like hundreds of thousands of others who served then, and millions and millions who have served in other conflicts, I had raised my hand and taken an oath to defend the United States Constitution. While military oaths differ, every military member, regardless of rank, swears “that I will support and defend the Constitution of the United States against all enemies, foreign or domestic, that I will bear true faith and allegiance to the same…” That defense of the Constitution, for some, includes making the ultimate sacrifice.

Memorial Day is unlike any other holiday, in that it remembers those who died to write the laws of the U.S. Constitution in our hearts and on our minds. On this special day, all Americans remember those who have, as was movingly described by President Lincoln in the Gettysburg Address (1863), given the “the last full measure of devotion” so that the ideals reflected in the U.S. Constitution would endure. As Lincoln said, those who gave that last full measure, did so “that government of the people, by the people, for the people, shall not perish from the earth.”

Constituting America’s mission is to educate, empower, and inspire. We do this by teaching the relevancy of the U.S. Constitution and the principles of self-governance inherent in our founding documents. That relevancy is more than just the legal principles of the Constitution, or even the ideals detailed in our founding documents. It comes from the meaning and significance that those principles and ideals promote in how we live our lives, both as individuals and as members of the national community. Those we remember on Memorial Day made the ultimate sacrifice for those principles and ideals, and lived them to the fullest, ensuring our nation would endure. From Bunker Hill to Gettysburg, Antietam to the Ardennes, from Iwo Jima to Seoul, and Ia Drang to Mogadishu, as well as many other places and battles known and unknown, Americans have bravely sacrificed their lives to preserve the freedoms we all enjoy. The memory of each of those who died lives in the hearts of all patriots, and their sacrifice ensures that the Constitution lives there along with them.

So, on this Memorial Day, as we celebrate with friends and family, enjoy the emergence of summer, and bask in the bounty that we have been blessed with, let us rededicate ourselves to remembrance, so that those who died to make us free live forever in our hearts and on our minds. Let us also educate new generations about the sacrifices that have come before, so that what was purchased at such great price will inform how we live today, and how we persevere in days to come. Let us all dedicate ourselves, as those who died did, to the preservation of our great nation, and let us inspire all future generations to do the same.

As President Calvin Coolidge wrote on May 30, 1923, it is “to the spirit that places the devotion to freedom and truth above the devotion to life, that the nation pays its ever enduring mark of reverence and respect.”

The Constitution is more than just a legal document. It is the embodiment of what makes America the great nation that it is. Hundreds of thousands of brave souls have died to preserve it. Let their memory always be in our hearts, and let the Constitution be written there also. We must never take for granted what has been bequeathed to us by generations past. Let the Constitution be part of our being. In that way we will honor those who died to make it so.

“Let every nation know, whether it wishes us well or ill, that we shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe to assure the survival and the success of liberty.” (President John F. Kennedy, Inaugural Address, January 20, 1961)

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

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King vs. Parliament in 17th Century England: From Absolutism to Constitutional Monarchy, Influence on American Governing

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Guest Essayist: Joerg Knipprath
An 18th-century engraving, based on a drawing by Samuel Wale, of the Bill of Rights being presented to William III and Mary IIhttps://en.wikipedia.org/wiki/Bill_of_Rights_1689#/media/File:Samuel_Wale,_The_Bill_of_Rights_Ratified_at_the_Revolution_by_King_William,_and_Queen_Mary,_Previous_to_their_Coronation_(1783).jpg


There have been few times as crucial to the development of English constitutional practice as the 17th century. The period began with absolute monarchs ruling by the grace of God and ended with a new model of a constitutional monarchy under law created by Parliament. That story was well known to the Americans of the founding period.

The destructive civil wars between the houses of York and Lancaster, known as the War of the Roses, ended with the seizure of the throne by Henry VII of the Welsh house of Tudor in 1485. The shifting fortunes in those wars had shattered many prominent noble families. Over the ensuing century, the Tudor monarchs, most prominently Henry VIII and Elizabeth I, consolidated royal power. Potential rivals, such as the nobility and the religious leaders, were neutralized by property seizures, executions, and dependence on the monarch’s patronage and purse for status and livelihood. Economic and social change in the direction of a modern commercial nation-state and away from a feudal society where wealth and status were based on rights in land had already begun before those wars. This change was due to financial necessities and a nascent sense of nationalism arising from the Hundred Years’ War between the English Plantagenet kings and the French house of Valois. Under the Tudors, England’s transition to a distinctly modern polity with a clear national identity was completed.

When Elizabeth died childless, the Tudor line came to an end, and the throne went to James VI Stuart of Scotland, who became James I of England, styling himself for the first time, “King of Great Britain.” On the whole, James was a capable and serious monarch but had strong views about his role as king. His pugnaciousness brought him into conflict with an increasingly assertive Parliament and its allies among the magistrates, especially his Attorney General and Chief Justice, Sir Edward Coke. The need for revenues to pay off massive debts incurred by Elizabeth’s war with Spain was the catalyst for the friction. James was well educated in classic humanities and had a moderate literary talent. He wrote poetry and various treatises. He also oversaw the production of the new English translation of the Bible. As a side note, I have found it amusing that, 400 years ago, James warned about the dangers of tobacco use.

It was James’s political writing, however, which irked Parliament. He was a skillful defender of royal prerogative and seemed to derive satisfaction from lecturing his opponents in that body about the inadequacies in their arguments. James was able to navigate relations with Parliament successfully on the whole, mostly by just refusing to call them into session. But his defense and exercise of his prerogatives, his claim to rule as monarch by the grace of God, and his pedantic and irritating manner, coupled with the restlessness of Parliament after more than a century of strong monarchs, set the stage for confrontation once James departed this mortal coil.

Parliamentary authority had accreted over the centuries through a process best described as punctuated equilibrium, to borrow from evolutionary biology. Anglo-Saxon versions of assemblies of noble advisors to the king existed before the Norman Conquest, in accordance with the customs of other Germanic peoples. William the Conqueror similarly established a council of great secular and ecclesiastical nobles of the realm, whom kings might summon if they needed advice or political support before issuing laws or assessing taxes. This rudimentary consultative role was expanded when the council of English barons gathered at Runnymede in 1215 and forced King John to agree to a Magna Carta. A significant provision of that charter required the king to obtain the consent of his royal council for any new taxes except those connected to his existing feudal prerogatives. This was a major step in developing a legislative power which future parliaments guarded jealously.

In 1295, Edward I summoned his Great Council in what the 19th-century English historian Frederic William Maitland called the Model Parliament because of the precedent it set. This Great Council included not just 49 high nobles, but also 292 representatives from the community at large, later referred to as the “Commons,” composed of knights of the shire and burgesses from the towns. Edward formalized what had been the practice off and on for several decades at that point. Another constitutional innovation was Edward’s formal call for his subjects to submit petitions to this body to redress grievances they might have. This remains a vital constitutional right of the people in England and the United States.

The division of the Great Council into two chambers occurred in 1351, with the high nobility meeting in what later came to be known as the House of Lords and the knights and burgesses meeting in the House of Commons. Within the next few decades, parliaments increasingly insisted that they controlled not just taxation, but also the other side of the power over the purse, expenditures. They faced some hurdles, however. Parliaments had no right to meet, and kings might fail to summon such a gathering for years. Also, these bodies were in no sense democratic. The Lords were a numerically small elite. Due to property restrictions, the Commons, too, represented a thin layer of land-owning gentry and wealthy merchants. The degree to which bold claims of parliamentary power succeeded depended primarily on the political skill of the monarch. Strong monarchs, such as most of the Tudors, could either decline to call parliament into session or push needed authorization through dint of their standing among powerful and respected members of those bodies. A politically adept king could secure those relationships through a judicious use of his patronage to appoint favorites to offices.

During the rule of James I, parliamentary opponents of the king increasingly expressed their displeasure through petitions to redress grievances. English parliaments also manipulated the process as a tool of political power against the king. While those petitions might in fact come directly from disgruntled constituents, they were often contrived by members of Parliament using constituents as straw men to initiate debate in a way which suggested popular opposition to the monarch on a matter. These were political theater, albeit sometimes politically effective. Even if such a petition were granted by Parliament when in session, relief would have to come through the king or his officials, an unlikely result.

After the death of James I, relations between king and Parliament deteriorated further under his son. More affable than his father, Charles I was also less politically astute. As adamant as his father had been about protection of royal prerogative, Charles made too many political missteps, such as arresting members of Parliament who opposed various policies. Much of his political trouble arose from England’s precarious financial situation, partly due to misbegotten and unpopular military campaigns precipitated by Charles’s foreign minister, the Duke of Buckingham. When Parliament proved uncooperative, he attempted to finance these ventures and various household expenses through technically legal, but constitutionally controversial, workarounds.

One constitutional theory held that taxes, especially direct taxes on wealth or persons, were not part of the king’s prerogative. Rather, such taxes were “gifts” from the people. As with other gifts, the king might ask but could not compel. The people could refuse. It was impractical to ask each person. Instead, the Commons collectively could vote to grant such a gift to the king. The king had the prerogative, however, to enforce feudal obligations, collect fees, or sell property to raise funds. When Parliament in 1626 refused to vote taxes to pay for the military expeditions, Charles instead imposed “forced loans” on various individuals. Although such loans were deemed legal by the courts, this constitutional legerdemain was exceedingly unpopular and failed to produce significant income. Worse for the king, Parliament adopted the Petition of Right in 1628, which, in part, reaffirmed Parliament’s sole power of taxation. Charles at first agreed, but soon reneged. He dismissed Parliament and reasserted his power at least to collect customs duties. The Petition would prove to be significant eventually for another reason, because it also asserted certain rights which the king could not invade.

Charles then ruled without Parliament. To pay for his expenses, he resorted to various arcane levies, fees, fines, rent assessments, and sales of monopoly licenses. Still, he ran out of funds by 1640. Needing money for a military campaign against the Scots, he called Parliament into session. The first session proved unproductive, but he summoned another Parliament, which met in various forms for most of the next twenty years and became known collectively as the Long Parliament. Friction between Charles and Parliament led to civil war, a military coup by General Oliver Cromwell and other officers of the New Model Army, the trial of Charles by a “Rump Parliament” purged of his supporters by the Puritan military, and the regicide in 1649.

Following the execution of Charles, the Rump Parliament abolished the monarchy and proclaimed England to be a “Commonwealth.” Deep political divisions remained. If anything, executing who historians consider one of the most popular English kings undermined the legitimacy of the Commonwealth with the people. Cromwell finally dismissed the Rump Parliament forcibly in 1653, after scorning them with the splendidly pungent “In the name of God, go!” speech the likes of which would not be heard today.

The Protectorate established later that year did not smooth relations between Parliament and Cromwell. In essence, this was a military dictatorship, and even the absence of royalists in the Commons and the interim abolition of the House of Lords did not prevent opposition to him. The two Protectorate Parliaments also were dissolved by Cromwell when they proved insufficiently cooperative, especially in matters of taxation, and too radically republican for Cromwell’s taste, having dared to challenge the Lord Protector’s control over the military.

Although the Protectorate’s military government was an aberration in English history, it produced some notable constitutional developments. The Instrument of Government of 1653 and the Humble Petition and Advice of 1657 collectively are the closest England has come to a formal written constitution. They created a structure of checks and balances which captured the trend of the English system from an absolutist royal rule to a limited “constitutional” monarchy. Although these two documents eventually were jettisoned by the “Cavalier Parliament” after the Restoration, they became a model for resolution of a subsequent constitutional crisis.

The Instrument provided the basic structure of government for the Protectorate. It was drafted by the radical republican Puritan General John Lambert and adopted by the Army Council of Officers in 1653. It was based on proposals which had been offered in 1647 to settle the constitutional crisis with Charles I, but which the king had rejected. The Instrument set up a division of power among the Lord Protector, a Council of State, and a Parliament that was to meet at least every three years. The last had the sole power to tax and to pass laws. The Protector had a qualified veto over the Parliament’s bills. However, he had an absolute veto over laws which he deemed contrary to the instrument itself. Moreover, Parliament could not amend the Instrument. Although these provisions put Cromwell in the position of final authority over this “constitution,” the proposition that Parliament was limited by a higher law contradicted principles of Parliamentary supremacy. It anticipated the later American conception of the relationship between a constitution and ordinary legislative bodies. The Humble Petition and Advice was adopted by Parliament in 1657. It proposed some amendments to the Instrument, among them making Cromwell “king” and creating the “Other House,” a second chamber of Parliament, composed of life-term peers. Cromwell rejected the first and accepted the second.

After Cromwell’s death in 1658, and the resignation of his son Richard as Lord Protector the following year, the Protectorate ended. This created a political vacuum and a danger of anarchy. In the end, one of Cromwell’s trusted leaders, General George Monck, led elements of the New Model Army to London to oversee the election of a new “Convention Parliament.” Though Monck had been personally loyal to both Cromwells, he was also a moderate Royalist. The new Parliament technically was not committed either to the Commonwealth or the monarchy. However, it was controlled by a Royalist majority, and popular sentiment was greatly in favor of abolishing the military government and restoring the monarchy. Monck sent a secret message to Charles II for the prince to issue a declaration of lenity and religious toleration. After Charles complied, Parliament invited him to return as king.

Although the new king also fervently believed in his divine right to rule and proceeded to undo the Protectorate’s laws and decrees through his friends in Parliament—which again included the restored House of Lords—he was savvy enough not to stir up the hornet’s nest of Stuart absolutism too vigorously. A period of relative constitutional calm ensued, although Whig exponents of radical theories of popular sovereignty and revolution could still find their works used against them as evidence of treason and plotting.

Upon Charles’s death in 1685, the crown went to his brother, James II, an enthusiastic convert to Catholicism. When he and his wife, Mary of Modena, had a son in 1688, it presented the clear possibility of a Catholic dynasty, a scenario which repelled the Anglican hierarchy. Even more objectionable were James’s exertions at blunting the Test Acts and other laws which discriminated against Catholics and Protestant dissenters from the established Anglican Church. The main tool was his dispensing power, a prerogative power to excuse conformance to a law. But, at the likely instigation of the Quaker, William Penn, he also issued his Declaration for Liberty of Conscience in 1687, a major step towards freedom of worship. The Declaration suspended penal laws which required conformity to the Anglican Church.

James’s Anglican political supporters began to distance themselves from him, and seven Protestant nobles invited the Stadholder of the United Netherlands, William of Orange, to bring an army to England. The Glorious Revolution had begun. James initially planned to fight the Dutch invasion, but lost his nerve and tried to flee to France. He was captured and placed under the guard of the Dutch. William saw no upside to having to oversee the fate of James, who was his uncle and father-in-law. To rid himself of this annoyance, he let James escape to France.

With James gone, William refused the English crown unless it was offered to him by Parliament. At the behest of a hastily gathered assembly of peers and selected commoners, William summoned a “Convention Parliament.” The throne was declared vacant due to James’s abdication. The Convention Parliament drafted and adopted the Declaration of Right. The following day, February 13, 1689, they offered the crown to William and Mary together as King and Queen, with William alone to have the regal power during his life. After accepting the crown, William dismissed the Convention Parliament and summoned it to reconvene as a traditional parliament.

The Convention Parliament was another milestone in the development of Anglo-American constitutional theory and built on the earlier Protectorate’s Instrument of Government. The process instantiated the radical idea that forming a government is different than passing legislation, in that the former is, in the later phrasing of George Washington, “an explicit and authentic act of the people.” The opponents of the Stuarts had long claimed that all power was derived originally from the people. However, parliaments had challenged the king’s supremacy with the claim that they represented the estates of nobles and commons, and that the people had vested all constitutive power in them. But, if the people were truly the ultimate source of governmental legitimacy, how could they permanently surrender that to another body? This debate was carried on among the Whig republican thinkers of the era, such as the radical Algernon Sidney and the moderate John Locke. It raised knotty and uncomfortable issues about revolution. Those very problems would occupy Americans for several decades from the 1760s on in the drive toward independence and the subsequent process of creating a government.

There was no concrete condition that William and Mary accept the Declaration, but the crown was offered on the assumption that the monarch would rule according to law. That law included the provisions of the Declaration, once the reconvened parliament passed it as the Bill of Rights in December, 1689. Until then, the Declaration had no force of law, not having been adopted by Parliament as a legislative body and not having received the Royal Assent. This has been the process of the unwritten English constitution. As with the various versions of the Magna Carta and other famous charters and proclamations, an act of Parliament is required to make even such fundamental arrangements of governance legally binding. The English Bill of Rights is, mostly, still a part of that unwritten constitution, although some provisions have been changed by subsequent enactments.

The English Bill of Rights built on the Petition of Right to Charles I in 1628 and the Habeas Corpus Act of 1679 in expressly guaranteeing certain rights. Among them were protections to petition for redress of grievances, to have arms for self-defense for Protestants, against cruel and unusual punishments or excessive bail or fines, and for trial by jury. Moreover, it protected members of Parliament from prosecution for any speech or debate made in that body. Many of these same protections appeared in American colonial charters, early American state constitutions, the petitions of state conventions ratifying the Constitution, and the American Bill of Rights. At first glance, the failure to protect religious liberty seems to be a glaring omission. However, anti-Catholic feelings ran high, and, contrary to James II, the Anglican majority was not in the mood for religious tolerance. As to Protestant Nonconformists, their religious liberty was recognized in the Toleration Act of 1689.

The Bill of Rights also made it clear that the monarch holds the crown under the laws of the realm, thereby rejecting the Tudor and Stuart claims of ruling by divine grace. This postulate was a crucial step in the evolution towards a “constitutional” monarchy. Following the approach of the Protectorate’s Instrument of Government, the Bill of Rights provided that laws must be passed by Parliament, although the monarch had an unqualified power to withhold consent. One must note, however, that this veto power has not been exercised since 1708 by Queen Anne. An attempt to do so by a British monarch today might trigger a constitutional crisis.

As a reaction against the perceived Catholic sympathies of the Stuarts and, in James II’s case, his actual Catholicism, the Bill of Rights very carefully designated the line of succession if, as happened, William and Mary died childless. That line of succession was limited to what were traditional Protestant families. To make the point clearer, the Bill of Rights defiantly debarred anyone who “is … reconciled to, or shall hold communion with, the see or church of Rome, or shall profess the popish religion, or shall marry a papist …” from the throne. The last prohibition likely was due to the habit of the Stuart kings to marry devout Catholic princesses, and an understandable concern over the influence that such a spouse might have in spiritual matters. On that point, too, the English experience affected later American developments, with the protection of religious freedom in the Bill of Rights and the prohibition of religious test oaths in the Constitution.

In addition to the importance of these historical antecedents to American constitutional development, the English Civil War and the Glorious Revolution demonstrate an uncomfortable truth. When the ordinary means of resolving fundamental matters of governance prove unavailing, those matters will be resolved by violence. Constitutional means work during times of relative normalcy, but on occasion the contentions are infused with contradictions too profound for compromise. It is an axiom of politics that politicians will seek first to protect their privileges and second to expand them. The increased demands by parliamentarians for political power inevitably clashed with the monarchs’ hereditary claims. Both sides appealed to traditional English constitutional custom for legitimacy. With their assumptions about the source of political authority utterly at odds, compromise became increasingly complex and fleeting. It was treating a gangrenous infection with a band-aid. Radical surgery became the way out. The American Revolution in the following century, and even the American Civil War of the century thereafter, showed evidence of a similar progression, with the two sides operating from fundamentally contradictory views of the nature of representative government and proper division of power between the general government and its constituent parts.

The Glorious Revolution resolved the contest over these conflicting views of legitimate authority and the proper constitutional order between king and Parliament. The earlier Commonwealth with its Protectorate was an abortive step in the same direction. It failed due to the political shortcomings of the military leaders in control. Although further adjustments would be made to the relationship between monarch and parliaments, the basic constitutional order of a limited monarchy reigning within a political structure of Parliamentary supremacy was set. The new constitutional arrangement became a model for political writers of the 18th century, such as the Baron de Montesquieu. American propagandists of the revolutionary period readily found fault with the British system. Once they turned to forming governments, however, Americans more dispassionately studied and learned from the mother country’s rocky path to a more balanced and “republican” government in the 17th century. Both sides in the debate over the Constitution regularly used the British system as a source of support for their position or to attack their opponents.

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

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U.S. Constitution’s Presidential Limits: The Framers’ Opposition To King Louis XIV “I Am the State” Monarchy Into Despotism

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Guest Essayist: Andrew Langer
Storming of the Bastille, 1789, French Revolutionhttps://en.wikipedia.org/wiki/French_Revolution#/media/File:Anonymous_-_Prise_de_la_Bastille.jpg


Though the words attributed to King Louis XIV are apocryphal (they don’t appear in print attributed to him until decades after his death), they present a chilling picture of the danger of absolute monarchy to individual freedom, and it should come as no surprise that the French had a revolution, and then a series of power struggles, starting at the end of the 18th century and for almost a century after.

In the wake of our own revolution, our founders, and then those who became the architects of our constitutional republic, were rightly worried about the descent from a free people into monarchy, and the further descent from monarch, to absolute monarch, to despotism.

As historian Arthur Schlesinger, Jr., wrote, “The power to do good meant also the power to do harm, the power to serve the republic also meant the power to demean and defile it,” and in the proximate sense of the founding, they had history from which they could draw. In 1974, Professor Raoul Berger wrote, “the Framers were steeped in English history; the shades of despotic kings and conniving ministers marched before them.”

But they could also look to the reign of King Louis XIV—his consolidation of power, his undermining of the potential for opposition, and his creation of a civil service corps personally loyal to him—to see the dangers of centralized executive power.

Law professor Jonathan Turley has written extensively about this, especially with regards to our present executive branch and its largely unaccountable administrative state, saying:

“The growing dominance of the federal government over the states has obscured more fundamental changes within the federal government itself: It is not just bigger, it is dangerously off kilter. Our carefully constructed system of checks and balances is being negated by the rise of a fourth branch, an administrative state of sprawling departments and agencies that govern with increasing autonomy and decreasing transparency.”

What Professor Turley is saying is that without adherence to the system of checks, balances, and a diffusion of sovereign power, this lack of transparency and increased autonomy is dangerous to individual rights.

In Federalist 68, 69 and 70, Alexander Hamilton further discusses the concerns (both real and imagined) with a strong governmental executive in making the case for the Constitution’s constraints against a President’s powers.  In Federalist 70, he invokes the ghosts of Imperial Rome:

“Every man the least conversant in Roman story, knows how often that republic was obliged to take refuge in the absolute power of a single man, under the formidable title of Dictator, as well against the intrigues of ambitious individuals who aspired to the tyranny, and the seditions of whole classes of the community whose conduct threatened the existence of all government, as against the invasions of external enemies who menaced the conquest and destruction of Rome.”

While Hamilton was referencing Rome, he could also have been talking about the excesses of the court of Louis XIV in France—and also warning against the converse, the dangers of a weak president.

The key was to weigh the powers of a reasonably strong executive, and executive branch, against the checking powers of the other two branches. This was the focus of both Federalist 68 and 69, in which Hamilton details how the President, as envisioned by the proposed Constitution, differs markedly from monarchs, and monarchies, of all kinds.

It starts with the simple—in Section 1 of Article II, the President’s term is limited to four years, and with the ratification of the Twenty-second Amendment in 1951, the President was limited to two terms in office.  So, unlike a king, a president’s time in power is limited.

Then, the engineering of a presidency balanced between strength and limitation gets more complicated. The President can appoint senior officials including cabinet members and Supreme Court justices, but these positions have to be confirmed by a vote of the Senate. So again, unlike a king, the President cannot merely pick individuals who are personally loyal to him—they have to be picks that will satisfy a majority of the members of the Senate as well.

The President is commander-in-chief of the United States Military. But the President cannot declare war; only Congress can. Yes, the President can engage in limited military action, if such a response is immediately necessary, but if this action is going to go more than several months, Congress must have its say. Congress also controls the budget. This is an enormous check both on the power of a President to wage war, and also on the President’s ability to engage in other policymaking.

Most importantly, unlike most monarchies absolute or otherwise, Congress has the power to remove a President from office via an impeachment for “high crimes and misdemeanors.” King Louis XIV expended a great deal of energy in working to ensure that his aristocracy could not undermine his regal powers and to make sure that France did not descend into civil war.

In America, the power of impeachment works to ensure that a President doesn’t abuse his office—either by abusing the rights of American citizens or by using his office for his personal enrichment.

The founders were deeply troubled by centralized power, especially the idea that an absolute monarch could become a tyrannical despot. While ensuring that a President could do his job, they created a constitutional system that checked the strong powers of the executive branch.

Andrew Langer is President of the Institute for Liberty.

 

 

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The Federalists on Diffusion of Power in American Government to Thwart Absolute Monarchy as Held by King Louis XIV

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Guest Essayist: Andrew Langer
1598 Edict of Nantes which granted extensive religious freedom.


In 1992, U.S. Supreme Court Justice, Sandra Day O’Connor, succinctly and eloquently summed up the essence of our federalist form of government:

“federalism secures to citizens the liberties that derive from the diffusion of sovereign power.” New York v. United States, 505 U. S. 144, 181 (1992)

Power is diffused among branches and levels of government, so that no one branch can become any more powerful than any other—and the architects of our government were purposeful in this construction.

They did so because they were inherently distrustful of overly centralized power, because they knew that power could be abused, especially the power of an executive, probably the greatest threat to individual liberty. Both Federalist 69 and Federalist 70 focus on the dangers of concentrated or overly powerful chief executives, and how that power ought to be reined in, and while Federalist 69 spends a tremendous amount of time focusing on the English monarchy (and Federalist 70 looks at Ancient Rome), the Federalist’s authors (Madison, Hamilton, and Jay) were well-aware of the recent history of France’s Bourbon monarchs, especially King Louis XIV, the self-proclaimed “Sun King.”

Louis XIV had been coronated when he was only 4, and while contemporaneous observations noted only a casual interest in ruling while he was a boy, when he assumed true personal rule of France in 1661 (following the death of Cardinal Mazarin, the king’s Chief Minister), he worked to ensure that his regal power was both consolidated and secure—building on the tutelage of his mother, Queen Anne, and having witnessed the chaos of a series of French civil wars (The Fronde) as a boy.

These civil wars were of deep concern to him—from both a standpoint of his personal safety and from the standpoint of ensuring his power.  Louis, in turn, began to enact a series of reforms to strengthen his role as an “absolute monarch.” While there was a legislature, and there were ministers, Louis served to create a royal civil service corps that were loyal to the crown itself, while at the same time making requirements of both the titled and military aristocracy that served to weaken their power over time.

By making the privileges of aristocracy dependent upon presence and participation at court, the king took both the political and military aristocrats away from their estates—placing them under direct scrutiny of the king and those closest to him, while frustrating any efforts that could undermine Louis’ hold on power (or present a military threat to him).

While it is apocryphal, given the concentration of power by the monarch, the king is reported to have said, “I am the state!”

It is interesting to note that all three of the Federalist’s authors viewed this concentration of power with deep skepticism, but for widely different reasons.

James Madison, one of Thomas Jefferson’s closest friends, shared Jefferson’s affinity for the French generally, but of the three authors of the Federalist essays was probably the most-skeptical of concentrated power from a political perspective, and would have seen the concentration of power as not just a threat to individual rights but also as politically unsound in the long term, something that was proven right decades after Louis XIV’s rule, when the French people revolted.

In contrast, Alexander Hamilton, the author of Federalists 69 and 70, believed in greater concentration of power in the federal government, as well as greater concentration of power in the executive branch. That being said, Hamilton was no fan of the French, and ultimately tried to start a war with the French, despite their assistance to America during the Revolution.

But it was John Jay whose antipathy toward the French monarchy was deeply personal—and who certainly had no love for King Louis XIV.

Jay was raised as a Huguenot, a French protestant sect. The Huguenots were persecuted for a very long time by the French government, until the 1598 Edict of Nantes granted them extensive religious freedom.

But in October 1685, King Louis XIV issued the Edict of Fontainebleu, which revoked the freedoms granted nearly a century earlier (Louis may have done this to placate the Catholic Church, whose political power he had also been trying to diffuse). Persecution of the Huguenots began anew, and John Jay’s great-grandfather sent his wife and children to England to avoid being targeted. As a result, Jay’s great-grandfather had his property confiscated, and he eventually joined his family in England.

When Jay was born in America, he was raised in Rye, New York, and educated in a French Huguenot church school in the next town, New Rochelle named for La Rochelle, a Huguenot center in France.

There is no doubt that his family’s experience colored his own views of the relationship between a central government and the rights of citizens, especially when it came to the freedom to worship and the right to enjoy private property. Interestingly enough, Hamilton, too, had at least one Huguenot ancestor, a grandfather, and this may have contributed toward his antipathy toward the French as well.

To be certain, whether based upon familial experience or an overall approach to political philosophy (and most likely a combination of the two), the authors of the Federalist saw that the political machinations and concentration of absolute monarchic power during the reign of King Louis XIV as something to not just avoid, but to actively work against.

Andrew Langer is President of the Institute for Liberty.

 

 

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“Sun King,” Louis XIV, and an American Constitution That Originated From the People as Sovereign

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Guest Essayist: Joerg Knipprath


Two noted maxims of Roman constitutional law contained in the code of Justinian’s 6th century Corpus Juris were, “What pleases the prince is law,” and, “The prince is not bound by the law.” These are classic expressions of sovereignty. They locate the ultimate power and authority to make and enforce law in one identifiable person. They reflect the full imperium of the Roman emperor and create a contrast with the earlier Roman republic, when a similarly complete dominance was exercised only outside the city, by proconsuls in the provinces.

Yet there was another maxim in the Corpus, “What touches all must be consented to by all.” This suggests that the ultimate authority rests not in the governor, but in the governed. In the Roman republic, actions were taken in the name of the Senate and People of Rome. That idea was symbolized by the SPQR (Senatus Populusque Romanus) which was prominently displayed even on the standards of the imperial Roman legions. There is an obvious tension between these maxims. One might locate in that tension the beginning in Western political thought of the lengthy and ongoing debate over the nature of sovereignty.

One of the most influential expositors of the concept was the 16th century French jurist Jean Bodin. In his Six Livres de la République (Six Books of the Commonwealth), published in 1576, Bodin defines sovereignty as the power to make law. Political society, like other human organizations, is hierarchical. Someone must make the rules. Thus, sovereignty must exist as a precondition for a state. Sovereignty, Bodin insists, must be indivisible. And it must be ultimate and absolute. While his preferred sovereign is a monarch, that is not requisite. As a student of the classics, he asserts that all political constitutions are monarchic, aristocratic, or democratic. As a man of the Renaissance, he believes in scientific epistemology. But, before one can effectively study a country’s laws, one must know the source of those laws, which is in one identifiable man or body of men.

The appeal of such a theory to a strong ruler is clear, and there were few rulers of the early modern period as absolute in power and self-assured of his sovereignty as Louis XIV of France. The “Sun King” ruled from 1643 to 1715, said to be the longest recorded of any monarch in history, although during his minority France was governed under the regency of his mother, Queen Anne. He took over sole rule in 1661, after the death of his chief minister, the political and diplomatic virtuoso Cardinal Mazarin who had been the de facto ruler of France for a couple of decades. Louis’s famous dictum, “L’état, c’est moi” (“I am the State”), may well be apocryphal, but it summarizes his view of government.

Louis certainly was not alone in that regard. The Early Modern Period saw the rise of the nation-state and, as an essential component, the absolute monarch ruling by divine right. By the reasoning of various defenders of the new order, an absolute monarch as sovereign was as natural as the rule by the paterfamilias over the family and the rule of the pope over the community of believers. While Martin Luther and other early Protestant leaders might challenge the second analogy, they had no problem with the bigger point. On its way out was the old divided feudal structure, based on personal covenants of fealty, with power divided between popes and emperors, emperors and nobles, and nobles and freeholders. The conflict between King John and the nobles at Runnymede, which culminated in the Magna Carta of 1215, was an anachronism. More representative of the new order of things was King Henry VIII’s campaign of arrest and execution of English noblemen and seizure of noble estates. In similar manner, the walk by Emperor Henry IV over the wintry Alps in 1077 to Canossa to beg forgiveness from Pope Gregory VII and have his excommunication lifted, would be seen as rather odd. Instead, there was that same King Henry VIII first making himself head of the Catholic Church in England and, soon thereafter, head of the new Church of England.

Historians have speculated about the many possible causes of the rise of the modern nation-state. It is difficult to pinpoint any one cause, or even to distinguish between causes and symptoms. Was it the increased sophistication of weaponry and the changed structure of military operations, which eroded the relative equality of power among various nobles because of the greater expense of the new technologies and the larger armies drawn from commoners? Was it the growing influence of commerce due initially to the greater affluence and stability of society in the 12th and 13th centuries and then, ironically, to the economic recovery in the 15th century after the prior century’s population collapse from pestilence and famine due to the colder climate of the Little Ice Age? Was it the result of the decimation of the nobility due to the many wars among nobles, such as that between the House of York and the House of Lancaster in the English War of the Roses in the 15th century? Was it the European expansion and exploration in the Age of Discovery, enabled by European technological superiority, the expense of which could only be undertaken by comparatively large states and which, in turn, brought great wealth to their rulers? Was it simply, as Niccolo Machiavelli might declare, due to Fortuna and the virtu of dynamic statesmen with which a particular political entity was favored?

Whatever the reason, every ruler, it seemed, wanted to be what Louis XIV became. Timing was not uniform. England under the Tudors became the domain of an absolute monarch a few generations before France did, but also lost that status well before France did. The German princes operated on a smaller scale and were well behind France in their pretensions to absolute rule; indeed, the Holy Roman Empire never coalesced into a nation-state. But the common thread for these rulers, other than in various city states and in a few oddities such as the Holy Roman Empire, the Swiss Confederacy, and the United Provinces of the Netherlands, was that they claimed to exercise full sovereignty in fact.

The existence of the aforementioned oddities presented a problem for theorists such as Bodin. The confederated natures of such realms and their distributions of power among various political organs vexed him. His solution was simple. He either just assigned such divided governments to a pure system or declared them not to be true states. Thus, he characterized the intricate constitution of the Roman Republic as a democracy. The Holy Roman Empire, with its imperium in imperio, that is, a purported dual sovereignty, was not really a state, but a chimera of one.

Along with Bodin, another influential author of the doctrine of sovereignty was the 17th-century English philosopher Thomas Hobbes, whose major work on the topic was Leviathan. As Bodin had done, Hobbes declares sovereignty to be indivisible and absolute. But Hobbes goes further. His approach is more pragmatic and more rigorous than Bodin’s. Hobbes analyzes sovereignty less in terms of authority to make law, but rather in the ruler’s power to coerce others. That is the essence of the old Roman imperium, to command. For Hobbes, the sovereign’s legitimacy arises from the consent of the governed rooted in the social contract. That contract results from the human psychological need for peace. Mankind’s desire for survival impels humans to escape the brutal Hobbesian state of nature with its war of all against all. Human nature is both rational and self-interested. Hence, humans seek the safety of the political commonwealth and the strength of its organized coercive power.

Hobbes’s view of the relationship between subject and ruler is best described as covenantal, and his reference to an Old Testament creature is not coincidental. There is no equality of bargaining and equality of relationship as in a typical contract. The subject agrees to obey unconditionally, and the ruler provides protection and peace. To do that, the ruler must have unquestioned power to bend all persons and all institutions to his rule. The sovereign can act in accordance with established law or contrary to it. Church-state divisions are no longer an issue. The secular sovereign controls the ecclesiastical bodies, as Henry VIII controlled the church. It need hardly be added that a divided state or a system of distributed powers would be an abomination for Hobbes, as it would undermine the commonwealth’s stability and raise the likelihood of a return to the state of nature.

The Bodinian and Hobbesian approbation of undivided sovereignty in an absolute ruler sits rather ill at ease with certain assumptions about the American system. The drafters of the United States Constitution deliberately sought to create a system of balanced powers divided between the general government and the states and among several branches of the general government. The supporters of the Constitution frequently discussed the division between the general government and the states in terms of sovereignty, particularly the residual sovereignty of the states, in their efforts to assuage the concerns and blunt the criticisms of their opponents during the ratification debates. James Madison and others even argued that the Constitution was in many ways just a novel and workable modification of the confederal structure of the Articles of Confederation.

The Anti-federalists were not persuaded and, like Bodin and Hobbes, insisted that sovereignty was indivisible and that, within a union, imperium in imperio was impossible. Either the states were the sovereigns, as under the Articles of Confederation, or the general government was. While the framers may have attempted to “split the atom of sovereignty,” in the vivid words of Justice Anthony Kennedy, the effort was bound to fail. Either the states would control the general government or the latter would control the former. For the Anti-federalists, the teleological direction of the Constitution was clear: The general government would inevitably diminish the states to mere administrative appendages and become a tyranny.

This controversy over the nature of sovereignty in the Constitution has continued. Is there, indeed, an identifiable sovereign at all under the Constitution, with the split in authority among the legislative, executive, and judicial branches, as well as between the House of Representatives and the Senate? This does not even consider the role of what is, in the evaluation of some, the true sovereign: the wholly extraconstitutional vast bureaucracy with its essentially unreviewable combined rule-making and rule-enforcing power.

That question also leads to another controversy. To counteract the criticism that the Constitution was a path to oligarchic rule at best, and outright dictatorship at worst, the Constitution’s supporters made frequent references to the power of the people to participate in various political processes. In similar manner, there arose the claim that, in the United States, unlike even in Britain, “the people are sovereign.” In 1776, George Mason asserted in the Virginia Declaration of Rights, “That all power is vested in, and consequently derived from, the People; …” Although he also expressed caution about this principle, James Madison in Number 49 of The Federalist accepted Thomas Jefferson’s dictum that, “the people are the only legitimate fountain of power,” and acknowledged that, at least, in certain unexplained extraordinary matters, the people should decide directly.

But how do “the people” exercise indivisible and ultimate authority and power? Leave aside various inconvenient facts, such as the usual exclusion of large groups of “the people” from the political system, the often low fraction of eligible voters who actually participate, the ability of unelected bureaucracies or courts to frustrate the political decisions reached, and the dubious premise that “the people” have acted when the vote is, say, 51% in favor and 49% opposed. As the experience of ancient Athens and Rome shows, it is not possible for “the people” to gather in one place. As an interesting side note, modern technology makes such an event less implausible, but even with the capacities of a premium Zoom version, it might be difficult to get a couple of hundred million of “the people” to participate in policy-making. It is a far cry from an 18th-century New England town meeting, and even there, a majority assumes a power over a minority.

Moreover, aside from the Constitution’s optimistic reference to “We, the people of the United States,” every part of that document is about entities other than the people making laws and coercing individuals to obey those laws. Indeed, “the people” did not adopt the Constitution. Nor can they amend it. Technically, there is not even a guaranteed right in the document for “the people” to vote, as the states control the qualifications for voting in the first instance. True, here or there across the American constitutional landscape, one might spot an exemplar of popular sovereignty. Some states provide for direct participation by voting on ballot initiatives and referenda to make law, and there remain in some localities the afore-mentioned town meetings. One might even point to jury nullification as another example. But all of these are well outside the norm.

This dissonance between declarations of popular sovereignty and the reality of governments nevertheless has led some writers to try to reconcile them. Jean-Jacques Rousseau asserted that the people cannot act individually to legislate. Instead, their particular interests are collectivized and transformed rather mystically into the community’s “general will.” For Rousseau, the community is an actual, albeit incorporeal, entity with a will. That general will is expressed in laws through some legislative body. This seems to be a well-perfumed version of the Roman empire’s old constitutional sleight of hand that the people are the ultimate source of political authority but have ceded their sovereignty to the emperor.

Rather than resolve these tensions, one might distinguish between “theoretical sovereignty” and “practical sovereignty.” In a system whose claimed legitimacy is based on consent of the governed and which purports to base the legitimacy of its actions on some degree of popular participation, one might indeed posit a theoretical grounding on “the people” as the unlimited sovereign. The then-future Supreme Court justice James Wilson, a prominent lawyer and intellectual who signed the Declaration of Independence and the Constitution, wrote in his law lectures that a constitution originates from the authority of the people. “In their hands, it is as clay in the hands of the potter: they have the right to mould, to preserve, to improve, to refine, and to finish it as they please.” But that is not how government operates in practice. It is certainly not how the Constitution was adopted and how it has actually been amended.

Just as the high-minded assertion in the Declaration of Independence that “All men are created equal” states a Christian view of us all as God’s children or perhaps a still-aspirational secular equality before the law, “popular sovereignty” or “consent of the people” is a useful philosophic device to communicate the difference between a government and a bandit. It establishes a conceptual basis, perhaps a noble lie, for political obligation, that is, why one is obligated to obey the commands and coercions of the former, but not the latter.

The more difficult and practically relevant investigation is where in our constitutional system does the practical sovereignty lie. Who really governs, makes the rules, and coerces obedience? There indeed is no clear Bodinian sovereign in the Constitution’s formal dispersal of power. Despite Alexander Hamilton’s expansive views of executive power in The Federalist and his subsequent Pacificus letters, the President’s constitutional powers fall well short of a monarch’s, as Hamilton wrote, as well. Even Louis XIV, despite his pretensions, found out that his word was not everyone’s command. He did ultimately acknowledge on his deathbed, “I depart, but the State shall always remain.”

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

 

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Founding Fathers on Designing a Constitution for Serving the American People, Not a Government of Machiavellian Authority

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Guest Essayist: Ron Meier
The Prince 1550 Edition Cover Page – Niccolo Machiavelli's Il Principe and La Vita di Castruccio Castracani da Lucca. Omslagsbild.https://en.wikipedia.org/wiki/The_Prince#/media/File:Machiavelli_Principe_Cover_Page.jpg


In Federalist 31, using references to math and science, Hamilton says that, “IN DISQUISITIONS of every kind, there are certain primary truths, or first principles, upon which all subsequent reasonings must depend. But in the sciences of morals and politics, men are found far less tractable; yielding to some untoward bias, they entangle themselves in words and confound themselves in subtleties. Strong interests, passions, and prejudices may degenerate into obstinacy, perverseness, or disingenuity.”

In Federalist 37, Madison says, “In some, it has been too evident from their own publications, that they have scanned the proposed Constitution, not only with a predisposition to censure, but with a predetermination to condemn.” On the other hand, (The Federalist Papers) “solicit the attention of those only, who add to a sincere zeal for the happiness of their country, a temper favorable to a just estimate of the means of promoting it. A faultless plan was not to be expected.  The most that the convention could do in such a situation, was to avoid the errors suggested by the past experience of other countries, as well as of our own; and to provide a convenient mode of rectifying their own errors, as future experiences may unfold them.”

Madison notes that the delegates to the Constitutional Convention sought to find the best combination of features in the construction of government that would provide “stability and energy in government with inviolable attention due to liberty and to the republican form. They sought to avoid those features that they believed would risk the destruction of their proposed government as quickly as was that of the Republican government of Florence in the early 16th century.

In the turmoil of Florentine politics, Machiavelli believed that Republican government was necessary for good government, but that many who sought to be autocratic rulers had different ideas of what good government looked like. Machiavelli observed that those opposed to good government under a Republican form believed (1) that moral and spiritual virtues are not essential for the administration of government and must be avoided by ensuring that government is secular; (2) that Christianity, in particular, is destructive to governing; (3) that fear and the threat of coercive force are more important than legal force; (4) that a forceful, and even violent, response is the only appropriate means to prevent enemies of the state from upsetting the political order of the state; (5) that what’s good for the state should guide government rather than what’s good for its individual citizens; (6) that the head of state must use whatever means is at his disposal to do whatever is necessary to maintain control and power; (7) that, to ensure peace and tranquility in the country, a consequence is that citizens will be disarmed.

It’s not difficult to understand Machiavelli’s observations when one considers the period in which he was an official in Florence’s government. Although a Republic existed after the Medici government was overthrown, it lasted less than 20 years; in addition, a co-conspirator in the overthrow of the Republic was the Papal forces. Thus, he seems to have concluded that Christian leaders may have been no more moral than secular leaders and that Christian leaders were as willing as secular leaders to exercise force to gain control of government and the populace.

America’s Founding Fathers, all of whom had studied the Bible as an essential part of the classical education, believed that moral and spiritual virtues were necessary for good men to establish good government.  They believed that the government should be entrusted with limited powers, with those powers determined by the people through their elected representatives, rather than with unelected governors who used force to obtain security for the people, but at the expense of the people’s liberty. And they believed that government existed to secure the rights of the people rather than to ensure the long-term viability of the state.

As they debated the construction of a new Republican form of government in Philadelphia in the summer of 1787, they sought to use their knowledge of republican and authoritarian governments over thousands of years to construct one that might prevent their proposed republic from ultimately being overcome by authoritarian-minded opponents. The features of acquiring authoritarian power in government noted by Machiavelli were features that the Convention delegates sought to minimize in their new Constitution.

Their Christian education and study of Aristotle’s Ethics informed them that leaders of good character were necessary for good government.  John Adams, in a speech to the Massachusetts militia in 1798, said that “Our constitution was made only for a moral and religious people,” and George Washington reflected a similar sentiment when he said, in his Farewell Address, “Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. . . And let us with caution indulge the supposition that morality can be maintained without religion.”

Yet they also recognized that no particular religion should require support by the citizens of the nation and that no religious affiliation should be required to hold federal public office. At the time, many of the 13 states had state-sponsored religions and, at a minimum, required that those citizens eligible for public office must be Protestants. In Article VI, Clause 3, of the United States Constitution, the Constitution clearly stated that, “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”  So, good character, moral, and ethical principles, generally acquired from education in religious and philosophical principles, were recognized as important for helping citizens acquire responsible civic virtue that the Founders considered necessary for good government of the people.

In crafting the Second Amendment, the Founders recognized that citizens who were disarmed would be unable to retain their liberty should authoritarian politicians attempt to seize power in the federal government.

Rather than adopting Machiavelli’s concept that government existed for the “good of the state,” the Founders decided that government existed to secure liberty for the people. The Constitution was designed to provide the government’s structure in support of the principles of the Declaration of Independence, most specifically the Declaration’s statement that, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” To more forcefully communicate that government existed to secure the rights of the people, Article I, Section 8 of the Constitution specifies limited powers of the federal government and the Ninth Amendment states that, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Additional measures in the Constitution provided for two houses in Congress, one to represent the people and the other to represent the individual states. The President was given power to veto laws passed by both houses of Congress to prevent the legislature from accruing excessive power, and the Congress was given the power to override a Presidential veto to prevent a President from accruing excessive power.  The Supreme Court was given the power to ensure that laws passed by Congress and signed by the President were in accord with the Constitution to prevent a situation in which both houses of Congress as well as the office of President were occupied by politicians of one faction and attempted to enact legislation to benefit their faction, in conflict with the Constitution.

If all else fails, then Article I of the Constitution provides for impeachment of the President, Vice President and all civil Officers for treason, bribery, or other high crimes and misdemeanors, with the additional check and balance providing that the House has the sole power to impeach and the Senate has the sole power to try all impeachments.

As noted above in Federalist 37, “A faultless plan was not to be expected.” The Founders attempted, to the best of their abilities, to construct a Constitution that reflected the strengths and minimized the weaknesses of republican governments over thousands of years of history, a history they knew well because of their classical education.  Yet, they recognized that their conception of a federal government structure was an experiment, as reflected in what Benjamin Franklin said in his final speech at the Convention, “when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views.” Later, when he was asked by a group of citizens what sort of government the delegates had created, his answer was, “A republic, if you can keep it.”

We’ve kept it for more than 230 years, overcoming many challenges to its existence. In his Gettysburg Address, President Lincoln reminded us that, “It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced.”  And President Reagan said in his 1964 speech, “Freedom is never more than one generation away from extinction. We didn’t pass it to our children in the bloodstream. It must be fought for, protected and handed on for them to do the same.” It’s up to us, we the people, not the government, to keep it going for another 230 years.

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

 

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Machiavelli, Science of Politics, and the Founders’ Solution to Prevent Government Fortifying Against the American People

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Guest Essayist: Joerg Knipprath
Niccolò Machiavelli Portrait by Santi di Tito, 1550-1600https://en.wikipedia.org/wiki/Niccol%C3%B2_Machiavelli#/media/File:Portrait_of_Niccol%C3%B2_Machiavelli_by_Santi_di_Tito.jpg


Among the common definitions one finds for “Machiavellian” are “unscrupulous,” “cunning,” “deceitful,” and “duplicitous,” words associated with disreputable character. The namesake for these malignant traits is Niccolo Machiavelli, a Florentine diplomat who lived from 1469 to 1527. He was a scion of an ancient Florentine family. His father, a lawyer, provided him with a classic education. That learning shows in Machiavelli’s various books about political science, warcraft, and history. In addition, Machiavelli wrote numerous letters and shorter essays and a satirical play, Mandragola, which was immensely popular at the time. Whether or not he intended it as such, this play has been described as an allegory about political events in 16th century Italy, a bawdy dramatization of the advice Machiavelli gave to the Medici family in his notorious work, The Prince (De Principatibus or Il Principe).

Machiavelli and his family were firmly associated with the republican factions in Florence. Through that connection, he held diplomatic offices in service to his city, traveling extensively to political centers and royal courts in Italy and the rest of Europe. In this capacity, he met a number of rulers, including the charismatic Cesare Borgia, after which the protagonist in The Prince is supposedly styled. With the return to power of the anti-republican faction of the Medicis in 1512, Machiavelli’s political fortune cratered. The following year, he was accused of plotting against the regime, arrested, imprisoned, and tortured.

It has long been claimed that he wrote The Prince while in prison as a testimony that he was loyal to the regime and, indeed, should be permitted to serve in the new government. The fawning dedication to Lorenzo de Medici, Duke of Urbino, that Machiavelli wrote in the preface of the book lends credence to that claim. Whether or not Lorenzo or any other member of the family ever read the book, Machiavelli’s hope for a further diplomatic career remained unfulfilled. He retired to a life of contemplation and writing.

Around 1517, he wrote his other famous work on politics, The Discourses on the First Ten Books of Titus Livy, wherein he examined the politics of the early Roman Republic. From Rome he sought to learn the necessary conditions for a successful republic, an aspiration for his own city’s future. Although there are common threads, such as the judicious use of violence when needed to maintain the government, The Prince is different in tone and goal than The Discourses. This has led to much speculation about Machiavelli. Was he the amoral cynic who scorned Christian ethics, which the former book displays? Or was he the admirer of republican Rome, who emphasized the need for constant “rebirth” to maintain that best of all systems? In the latter work, he is alarmed that corruption of republican character will destroy the republic, unless something spurs its rebirth, preferably from reforms within the republic itself. John Adams, writing a quarter-millennium later in A Defence of the Constitutions of Government of the United States of America, agreed. But that is not The Prince.

In short, one must look at The Prince on its own terms. Readers then and since have been shocked—or piously professed to be shocked—by its content and tone. But why? The book makes no claim to promote virtue, either in the classic or Christian sense. He does not disparage Christianity or challenge Christian virtue in this or any other of his works. As one commentator has noted, “What should not be assumed is that whatever Machiavelli thinks about things in general is necessarily ‘Machiavellian.’ His view of politics is, but it simply does not follow that his view of everything is ‘Machiavellian.’” The Prince purports to deal with the world as it is, not as philosophy or religion would like it to be. It followed a long literary tradition called “the mirror of princes,” books whose lessons instructed future rulers about “proper” governance. It should come as no surprise that such instructions during the Middle Ages came with a heavy dose of Christian ethics to civilize the prince and habituate him to just and temperate rule. After all, as Thomas Aquinas noted, God gave the ruler care of the community for the general welfare, not a license to exploit the people for the ruler’s own benefit.

Machiavelli builds on that literary tradition but uproots it from its philosophical grounding. He tosses aside the Aristotelian conjoining of ethics and politics, the classic assumption that what defines a good person also defines a good ruler, where the private virtue is elevated to the public. It is an abandonment of the scholasticism of the High Middle Ages and its synthesis of philosophy and religion, of which Thomas was a prominent expounder. The Prince warns the ruler that, to be successful in politics, assume the worst of everyone, whereas the classical version of politics as ethics writ large held that a few people are virtuous, more are evil, and the great majority are in-between. It was for the last group that habituation to ethical behavior might move the needle.

Machiavelli is not interested in saving the prince’s soul, but in having him survive, a matter of particularly acute relevance in the chaotic and often murderous factional politics of the Italian states. He does not hold up his examples as paragons of morality, and his praise of virtu means a prince’s skill at the craft of statesmanship, not the ideal character of a Christian nobleman or the pursuit of personal excellence by a Roman Stoic sage. His advice is specific and based on assumptions about how human beings consistently respond to certain events and actions. These assumptions are drawn from hard-nosed examination of human behavior and contemporary events. Machiavelli engages in empirical psychology, no less valid because his analysis often also draws from historical sources made familiar through his classical education. Like the image of Janus, the Roman two-faced god of transitions, Machiavelli and his contemporaries looked ahead to a more secular world revealed through humanistic tools of discovery but still could not avert their gaze from the medieval world receding behind them.

The Prince is divided into several sections and chapters, dealing with the particular conditions of various principalities. There are secular and ecclesiastical princes.. Among the secular are those who became rulers by conquest, by criminal acts, or by acclaim of the people. Just as all cars might have certain similar requirements for maintenance, yet need different manuals to address their particular components, so does the governance of people in different polities.

Starting with commonalities, there are certain common sense postulates derived from experience. It is better to be feared than loved by the people. He acknowledges that it is best to be both respected and loved by the people. A ruler who is loved is likely to return that love and act magnanimously and govern moderately. But love is unsteady. In human relations, lovers betray each other constantly, through deceit or worse. That behavior is the theme of much literature, dramatic as well as comedic, including Machiavelli’s own Mandragola. At the impersonal level of a state, love becomes even less stable, which Machiavelli’s own fate in a city riven with factionalism demonstrated all too well. No politician is loved by everyone and should not even try. Sic transit gloria mundi should be a warning for every politician, as the glory of today becomes the exile, or worse, of tomorrow. Fear, on the other hand, provides a more stable rule, because it always produces the same reaction from people, of obedience and, indeed, respect for the ruler’s decisive leadership.

True, some might feel so much hatred for a strict ruler that it overcomes their fear. Therefore, the ruler must apply the precautionary principle: treat everyone as a potential assassin, more practical advice to survive in 16th century Italian politics. From this, another general rule emerges. Feign affability, but never let down your guard by mistaking your disguise for reality.

Of particular relevance to the Medicis would be the advice for rulers of conquered lands. Upon victory, the new ruler might react in an understandable human way and be indiscriminately magnanimous to the conquered people. Big mistake. The ruler must put himself in the position of various groups among those people. First, there is the former ruler and his family, around whom those with loyalty to the prior regime might coalesce. To the extent possible, the prior ruler’s family must be exterminated to eliminate this mortal danger to the new prince.

Another group might be those who have invited the prince to invade as a result of factional strife within that domain. This group expects to be rewarded. It is safe to ignore them, as they have no one to support them against the new prince. Their own people consider them traitors, and their very existence depends on the prince’s success. He holds their reins, not they his.

A third group are the sizable portion of the people who have something to lose in wealth or position, but are not among the first two groups. They might be, for example, merchants, artisans, and bureaucrats. The advice: be generous to make them feel connected to him. Kill those with loyalties to the old regime, fine. But get it done quickly, and do it through a subordinate who can then be blamed for having been overly zealous. One might think of King Henry II of England and his cry to the nobles, “Will no one rid me of this meddlesome priest” about killing Thomas Becket, the 12th century Archbishop of Canterbury. Better yet, kill the executioner, for there is no better way of showing that executions are over than hanging the hangman. The conquered people are afraid and cowed, uncertain of what will become of them, their families, and their property. They look for any sign of humanity in the conqueror and want to believe in the ruler’s good will. Such an approach will reassure them that they are safe and will be seen by them as one of generosity. After all, the condemned man is thankful for a pardon, even though it may have been the ruler whose prosecution put the man in the position of needing one. The reader might find it difficult to avoid the sense that this part may have been about Machiavelli and his own family’s situation while he wrote The Prince.

People, by nature, lack gratitude. Over time, the effect of not having been killed or lost their property wears off. Now the prince should reward them, but do so gradually and without raising taxes. The people may see through this, but will respect the prince for his fiscal discipline which has benefited them financially. One other noteworthy point that Machiavelli makes is that this third group of people might accept their conqueror because they blame the prior ruler for their situation. They will believe that the prior ruler lost because of corruption of his moral or political bearings, with the latter due either to the ruler’s laziness in attending public affairs or to a rot of the political structure as a whole. In any case, the prior ruler proved unfit, which makes the new one worthy of respect and fealty.

The last group is the remainder of the population. One option is to rule with perpetual fear and to strangle their livelihoods with taxes to keep them struggling for survival rather than engaging in political scheming. But, sooner or later, the prince will need them as soldiers. It will not do to impoverish the people because, with nothing for them to lose, it will make them unable and unwilling to fight on his behalf.

This broaches the topic of war, one of Machiavelli’s favorites, not coincidentally also a frequent pursuit of the rulers of Italian states during his time. War, he declares, is ubiquitous and inevitable among states. The prince should embrace it, but be smart about how and when to fight. War must deliver benefits for his people, such as tribute or new lands. Internal politics are inevitably connected to foreign policy, an interrelation which a diplomat such as Machiavelli would be sure to emphasize. War also can be a useful distraction from domestic trouble by rallying the people to the prince.

The “how” of fighting the war is of particular significance and requires long-term choices. One might use one’s own forces, those of allies, or mercenaries. While some combination among them, particularly the first two, is possible, he addresses the benefits and drawbacks of each. If one relies on allies, one takes a risk. They may help you and fight with elan. However, they may want a division of the conquered territory. If you refuse, they may turn on you. Therefore, be hesitant about allying with more powerful entities, but at least make sure that there is not one predominant ally among the group.

Mercenaries are always a problem, during war or peace. Perhaps he based this on the experience Italian states had with their frequent use of mercenaries, particularly German and Swiss. He broadened the argument to include professional soldiers in general. They fight for money and often are on retainer during peacetime. Therefore, they want to avoid war and will counsel against or even frustrate the ruler’s political decision about war. If war happens, they feel a certain fraternity with those on the other side. They may know them and even may have fought alongside them in other wars. Mercenaries do not fight vigorously, because the soldier on the other side is “just doing a job,” just as they are. The mercenaries lack the necessary conviction for the cause, because, in the words of one commentator, they “no more hate those they fight than they love those whom they fight for.” Even if they win, they could turn on the prince. At the least, they might raise their fee, a demand it would behoove the prince not to ignore lest the mercenaries act against his interest.

Best, then, to rely on one’s own citizen militia. If there are military reverses, the citizens will fight most vigorously for their hearth and home. If they are victorious, they can be rewarded with a moderate degree of plunder. They might also be useful to colonize the new realm. However, this migration must be undertaken with the long view towards intertwining the conquerors with the original inhabitants. It must not produce a collection of isolated communities of occupiers. Assimilation works best if the conquerors and the conquered share language, religion, and customs. Otherwise, particular care must be taken to be sensitive to deeply-held customs of the conquered people to pacify them. This reflects a practical strategy employed successfully by the ancient Romans as they spread across alien lands.

Machiavelli’s commendation of citizen militias and his distrust of professional soldiers reflects his republican leanings. Such broad-based military service was at the heart of the classic Greek and Roman conception of citizenship. His views became a staple of classic republican argumentation. During the debates over the American Constitution in 1787 and 1788, the Anti-federalists vigorously objected to a standing army as a tool of tyranny that would doom the republic. Hamilton and Madison used several essays in an attempt to blunt those objections.

Another aspect of Machiavelli’s instruction was that the ruler must consider the role of luck in events, particularly in war. He uses Fortuna, the Roman goddess of luck and fate. She is capricious, moody, and willful. She must constantly be courted to keep her on one’s good side. Her capriciousness cannot be tamed, but fortunately, if one may use that word, it may be calmed by the ruler’s virtu. Machiavelli is a Christian, so he does not believe in unalterable fate; man has free will. Moreover, the history of warfare shows not only the influence of luck, but of skill at warcraft, such as when a commander executes a deft maneuver that allows his army to escape a precarious situation. Hence it behooves a ruler to act decisively. Fortuna and virtu, working together, are irresistible.

Unlike the legitimacy a prince has by succession under established constitutional rules, conquest by itself cannot bestow legitimacy on the new prince. Machiavelli’s prince is not Thomas Hobbes’s Leviathan. Machiavelli calls to mind Aristotle’s distinction between king and tyrant. The non-pejorative meaning of “tyrant” was someone who came to power outside the customary process. That said, a consistently “lucky” prince will be seen by the people as beyond ordinary men, which creates legitimacy in their eyes. It is a well-known psychological urge in people to “go with a winner.” One need note only the increased attendance at sporting events in our time when the team is on a winning streak that season. As in the case of the ancient Greek heroes favored by their deities, Fortuna smiles on the prince. The concrete evidence of the prince’s success bestows the legitimacy on him which medieval Christians believed occurred through God’s anointment of kings and emperors. A lot of this may be theater, where elaborate court pomp and ritual provides the stage to make it appear that the prince is powerful and favored by fortune. The medium becomes the message, as the phrasing goes. As in Plato’s parable of the cave, the appearance becomes the reality in the minds of the subjects, a metamorphosis to which citizens of modern republics certainly are not immune, either.

The requirement that a successful prince take account of Fortuna’s fickleness and need for constant attention and courting sounds very much like Plato’s and Polybius’s critiques of the “pure” forms of democracy. For them, the general citizenry was fickle and willful and craved constant flattery from would-be leaders. The extent to which the latter possessed the political virtu to manipulate the citizens would determine how much support such demagogues would get. One also is reminded of Hamilton’s concern in Number 68 of The Federalist that direct election of executives is undesirable, because it rewards men who offer nothing more than their “[t]alents for low intrigue, and the little arts of popularity.”

The Prince has often been compared—unfavorably—to the works of political theorists who followed Machiavelli within a few generations, preeminently Jean Bodin and Thomas Hobbes. The latter, critics have charged, produced much more sophisticated and internally consistent investigations of political systems. Bodin, a French academic and jurist who wrote in the 16th century, analyzed different forms of government and organized them around the concept of sovereignty. Hobbes, an Englishman writing a hundred years later, claimed his work to be a new science of politics. He provided a modern psychological basis for the origin of political society in the rational self-interest of mankind, foremost the desire for personal security and safety. Meeting that primal psychological need established for Hobbes the legitimacy of an absolute ruler such as his Leviathan.

These criticisms miss the purpose of writing The Prince. Like Bodin, Machiavelli favored centralized and effective power through his prince. He hoped for a strong leader to unify Italy, much as Bodin wrote in favor of the French monarchy which had mostly completed the unification of France. Like Hobbes, Machiavelli in The Prince rejects established ethical justifications for a ruler’s legitimacy and justifies a strong and energetic ruler based on that ruler’s success in governing. As was essentially the case for Hobbes, there is no universal moral order of natural law which actually limits the prince’s law-making. To borrow from Justinian’s Code, the prince is the law because there is no earthly sovereign above him. This had also been the position of certain medieval churchmen, especially William of Occam, in regards to the divine realm and God’s omnipotence. Machiavelli and Hobbes secularized those arguments. It is true that The Prince lacks the philosophical wholeness and complexity of other works, but Machiavelli was not aiming for that. His Discourses on Livy comes closer to it. With The Prince, he was writing a practical guide for a successful ruler, a guide drawn from experience and an exemplar of a new science of statecraft.

Machiavelli’s prince did not, then, fail as a political concept. Indeed, Machiavelli’s goal of Italian unification through a dynamic leader, possessed of virtu and smiled upon by Fortuna, was realized, albeit more than three centuries later. Rather, because so much depended on the political skills of each ruler, particular princes failed while others succeeded. This flux destroys the social stability which is needed for productive lives and is traditionally the goal of government. Machiavelli reveals the concurrent strengths and weaknesses of monarchy and other single-executive systems of government. Leaving aside the potential problems of standing armies and heavy taxation discussed earlier, The Prince provides many lessons for us and reveals parallels to how our system functions.

For one, Machiavelli’s methodology is strikingly similar to the approach in The Federalist. Alexander Hamilton declared in Number 6, “Let experience, the least fallible guide of human opinions, be appealed to for an answer to these inquiries.” Use of illustrative historical events and commentaries on human nature based on similar psychological investigations run throughout those essays. One goal of the authors of The Federalist was to explain to their readers how this republican system could be successful as a practical undertaking, regardless of its conformance to some ethical ideal, the virtue—or lack thereof—of its politicians, or the problematic legitimacy of its creation.

Machiavelli also recognized that the fate of the prince and the people ultimately are tied together. The prince’s wise practice of statecraft will bring prosperity, which the citizens will defend vigorously, if needed. This is an eminently pragmatic position, well supported by examining history. As James Madison wrote in Number 40 of The Federalist in response to criticisms that the Philadelphia convention had acted illegitimately and against existing constitutional rules, “[If] they had violated both their powers and their obligations, in proposing a constitution, this ought nevertheless be embraced, if it be calculated to accomplish the views and happiness of the people of America.”

Another lesson is the need to avoid dependence on the particular qualities of one leader. It has long and often been recognized that the Constitution creates a potential for strong executive government. Examples abound, from Alexander Hamilton’s broad claims of implied executive powers in his Pacificus essays from 1793, to Woodrow Wilson’s positively Machiavellian observation in his book Constitutional Government, “If he rightly interpret the national thought and boldly insist upon it, he is irresistible. . . . His office is anything he has the sagacity and force to make it.” Most telling are the numerous claims of far-reaching power to act in emergencies by presidents down to the present, which emergency powers then conjure more emergencies. While the political benefits from energy and decisiveness in the executive were duly noted, the framers of the Constitution intended the system of structural separation of powers to diminish the dangers from concentration of power in a single ruler.

Finally, there was the need to deal with the destructive factional politics that plagued Italian cities during Machiavelli’s time and beyond. The Prince proposes one manner—the charismatic leader whose skill will prevent these factions from entrenching themselves. The Constitution recognizes the problem, but proposes a different solution, to set the factions against themselves in peaceful competition by multiplying their number and diversity so that none become entrenched.

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

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Federalists and Anti-federalists on Machiavelli and a Well-constructed Government Able To Check Attempts To Seize and Hold Power

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Guest Essayist: Ron Meier
Giovanni di Bicci de' Medici (1360-1429) Italian banker, founder, Medici Bankhttps://en.wikipedia.org/wiki/Giovanni_di_Bicci_de%27_Medici#/media/File:Giovanni_di_Bicci_de'_Medici.jpg


As Professor Joerg Knipprath notes, Webster defines Machiavellian as a term often used to describe someone who employs cunning, duplicity, or bad faith tactics to get what he wants. Synonyms include cutthroat, immoral, unconscionable, unethical, unprincipled, unscrupulous.

Only 250 years before the rise of revolutionary fever in the American colonies, Machiavelli’s observations on political power were published.  Those observations were more a description of how government worked at the time he wrote than a prescription of how government should work.  Government in the British colonies in the 18th century, in many ways, looked too Machiavellian to our Founding Fathers and influenced their decisions about how to form a new government, more specifically how to minimize human nature’s inclinations for control and power by those to be trusted as America’s future political leaders. Machiavelli’s tenure in political office in the Republic of Florence was sandwiched between the long Medici reign before its overthrow and the Medici restoration, with the aid of Papal troops, less than 20 years later.

In the turmoil of those years, Machiavelli saw that raw power determines who rules; natural law, religious faith and morality were irrelevant to rule and therefore, a secular government was more the norm. Preserving the state, not protection of individual rights by the state, was the objective of government; and whatever force was necessary to preserve the state, provide security for its citizens, and stability was acceptable. Machiavelli is considered by many today as the father of political science, generations before the term “political science” came into common usage.

Considerable discussion occurred during and after the 1787 Constitutional Convention between those arguing for and against a strong, energetic President. This was understandable in light of the recently concluded war of independence from a perceived strong British ruler whose “long train of abuses and usurpations” were listed in the Declaration of Independence.

In Anti-federalist 70, the author, arguing against a strong and energetic executive says, “In the first place the office of President of the United States appears to me to be clothed with such powers as are dangerous.”  He then adds, “So far is it from its being improbable that the man who shall hereafter be in a situation to make the attempt to perpetuate his own power, should want the virtues of General Washington, that it is perhaps a chance of one hundred millions to one that the next age will not furnish an example of so disinterested a use of great power.”  Although Washington was not yet in office as President, the author recognized that Washington would probably be elected President if the Constitution were ratified, but that subsequent Presidents, lacking the moral and civic virtues of Washington, may hunger for unlimited power and become the despot that all feared. The author went on to say that, “If we are not prepared to receive a king, let us call another convention to revise the proposed constitution, and form it anew on the principles of a confederacy of free republics.”

In Anti-federalist 71, the author says that “the best security for liberty was a limited duration, and a rotation of office, in the chief executive department.”  And, in Anti-federalist 72, arguing against unlimited reelections of a President, “Upon his being invested with those powers a second or third time, he may acquire such enormous influence and, haughtily and contemptuously, turn our poor lower house (the only shadow of liberty we shall have left) out of doors, and give us law at the bayonet’s point. We seem to be fast gliding away; and the moment we arrive at it — farewell liberty.” The Anti-federalists’ knowledge of the history of ancient governments reflected their concerns that political offices in the proposed Republic didn’t have more stringent restrictions on the ability of those elected to federal office to be reelected. Where restrictions were in place, the risk of despots holding office was reduced and where such restrictions were not in place, authoritarian government often grew.

The Federalists, on the other hand, took pains to illustrate that the checks and balances and separation of powers in the proposed Constitution would slow down the enactment of laws with extensive debate and thereby check the authoritarian impulses of the various branches. In modern terms, days, weeks, and months of debate were preferred to the ability of a President to use his phone and pen to enact new law rapidly.  They also believed that the two, four, and six-year terms of office in the Legislative and Executive branches were long enough to enable the occupants of those offices to have a positive impact on the exercise of their enumerated powers, yet short enough to allow citizens to turn them out of office when their Machiavellian methods and authoritarian impulses, to override the will of the people, became too strong.

In Federalist 51, Madison states that, “In republican government, the legislative authority necessarily predominates.” Therefore, to avoid a legislative branch aggrandizing its power at the expense of the executive branch, the Founders believed that care must be taken in constructing the government to grant powers to the President to check legislative overreach. Also, they recognized that a legislature which knew that the President who, after his four-year term ended could not be reelected, could wait out a President whom the legislature deemed too willing to check their power and hope that the next occupant of the executive branch would be less willing to check the legislative powers with a veto.  Over a period of time, patience by the legislature would enable them to accrue significant power. Therefore, the Founders decided that a President would not be forced to vacate his office, but could be reelected if the citizens so decided.

In Federalist 71, Hamilton discusses the advantages and disadvantages of a term of four years for the President. He says, “a duration of four years will contribute to the firmness of the executive but not long enough to justify any alarm for the public liberty.” In Federalist 72, Hamilton argues that a President shouldn’t be limited to only one four-year term, stating that there is a connection between “the duration of the executive magistrate in office and the stability of the system of administration.” This is easily observed in recent years as the Executive Orders of a prior President are frequently reversed immediately open the ascension to office of a new President, especially when a sitting President is defeated after his first term of office. Businesses that don’t know if a President’s Executive Orders will stand in the next administration are not willing to make long-term investments to grow their businesses.

In Federalist 23, Hamilton discusses the problems encountered during the fighting of the War under a Confederation form of government. He states the difficulty of requisitioning troops, supplies, and money to fight the war and of keeping morale high in the military ranks under such conditions. Hamilton says, of the country, “the Union ought to be invested with full power to levy troops; to build and equip fleets; and to raise the revenues which will be required for the formation and support of an army and navy, in the customary and ordinary modes practiced in other governments.” The President, as Commander in Chief, also must know that he has the authority to effectively lead the nation in time of war.

The Founders’ knowledge of the successes and failures of all types of government was deep; Machiavelli’s observations of what government transitions normally looked like provided an important, more recent, reminder of how quickly a Republic can fail internally if its government is not well constructed at birth and externally when confronted by powerful, amoral governments, led by autocrats’ intent on seizing and holding power.

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

 

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The 1579 Netherlands Constitution and the Founders’ Vision for Careful Balance of Federal Powers While Protecting the States

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Guest Essayist: Andrew Langer
The Surrender of the City of Utrecht on June 30, 1672, to the French king Louis XIV, 1672, Centraal Museum Utrecht, Painting by Lambert de Hondt IIhttps://en.wikipedia.org/wiki/Utrecht#/media/File:Lambert_de_Hondt_(II)_-_The_Surrender_of_Utrecht.jpg


In making the case for the ratification of the Constitution, the authors of the Federalist papers (Alexander Hamilton, James Madison, and John Jay) routinely looked to history for examples of what to follow, and, almost more importantly, what shouldn’t be followed. The Constitution, of course, was to be an improvement over the previous Articles of Confederation, and document whose flaws in the separation and balance of powers necessitated the drafting of the Constitution itself.

The Articles of Confederation was also built on historic example, and among these was the 1579 constitution of the Netherlands provinces—the subject of Federalist #20, authored by Madison. Created as a result of the “Union of Utrecht”—a treaty created between the seven northern Dutch provinces who had allied with one another to oppose the Habsburg-controlled southern provinces, this constitution laid out the shared power structure between these unified territories.

But Madison recognized that the flaws endemic in the document creating this Dutch confederacy were duplicated by the flaws in the Articles of Confederation. In laying out his criticism of the Netherlands Constitution, he said the following:

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

In other words, because of the structural flaws in how this constitution laid out the relationship between the provinces, it left this union weak and vulnerable. Madison went on to say, “It was long ago remarked [that] nothing but the hatred of his countrymen to the House of Austria, kept them from being ruined by the vices of their constitution.”

To be fair, there was a flaw in Madison’s essay (and it was a flaw repeated by others), in that Madison suggested that votes on issues of importance to these provinces had to be unanimous. This was untrue.  William Riker, a political scientist and expert on federalism, said this in his 1957 journal article, “Dutch and American Federalism”:

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

Riker noted how favorably many of the founders (other than Madison) looked at the governmental practices within the Netherlands—which should come as no surprise given the breadth of Dutch colonial activity in the continent prior to the American founding.  He said:

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

It should be noted that Professor Riker’s views on federalism changed over time as his expertise on the subject grew.  In his 1987 book, The Development of American Federalism, he admits the following in the introduction:

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

But contemporaneous accounts underscore the relationship between the 1579 constitution and the Articles of Confederation. Pieter Paulus, who later became the first President of the Batavian Republic, wrote:

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

Yet, here we have Madison’s criticism, a criticism which may have been informed by his fellow-Virginian, William Grayson, a lawyer and soldier who later became a member of the United States Congress.  Grayson had deep concerns about the Articles of Confederation, and how similar it was to the 1579 Netherlands constitution, writing to Madison:

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

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

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

The answer then is made manifest in the choices made in the structure of the Constitution as it was ultimately adopted: carefully enumerated powers for the federal government, a balancing of those powers between branches of government, and the retention of all power not surrendered in the hands of the people themselves as well as state governments.

This theme is made manifest throughout the Constitution and, in just one example, one can note the balance and contrast between what is discussed in Article 1, Section 10, and Article IV.  In Article I, Section 10, the founders placed very clear limits on the extent of state power—by making it clear, for example, that states cannot coin their own monies, nor could they negotiate treaties on their own. The reason for this is clear: building on the warning echoed by Madison in Federalist 20 (in part because of how he understood the flaws of the 1579 Netherlands Constitution), the drafters knew that while there might be intense internal debate between the states, that once an issue reached America’s shorelines, the nation had to speak with one voice. It would be chaos, for instance, if Massachusetts were negotiating one treaty with Spain, and Maryland were negotiating something different with Spain, or with an enemy of Spain.

In the same way that the federal government is responsible for regulating interstate commerce, these drafters also knew that it would likewise be chaotic if each state were creating its own currencies. So, they limited the power of the states in that regard as well.

But like all the other checks and balances, the trade-off to this is seen in Article IV—while the powers of the states are limited in terms of things like treaties and currency creation, Article IV gives a guarantee of protection to states. The federal government agrees to defend a state against military threats, and at the same time offers assurances in terms of working to make sure that each and every state treats each and every other state fairly. Article IV also makes guarantees as to the admission of new states into the Union, and a guarantee of a “republican” form of government.

With all of that in mind, the framers still felt it necessary to include the Supremacy Clause (Article VI, Clause 2), which says that the Constitution, and any laws that are created by Congress, are the “supreme law of the land.”  So long as Congress creates laws that are based on the powers delegated to the federal government by the people (and the states), should those laws come into conflict with state laws, the federal laws take precedence.

But those laws have to be within those enumerated powers—and this is central to many of the policy and political debates of today. For much of the 20th century, the federal government’s authority was virtually unlimited in terms of legislation, and thus holding sway over competing laws that might be enacted by state legislatures, due to an expansive interpretation of the Commerce Clause (Article I, Section 8, Clause 3).

But in a series of Supreme Court decisions in the 1990s, the limitations on federal power were re-asserted. The Supremacy Clause remains, but that “leviathan,” as Professor Riker described it, is checked by the limitations on, and diffusion of, that power within our system of federalism.

Andrew Langer is President of the Institute for Liberty.

 

 

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Flexibility to Act Without Violating the U.S. Constitution: America’s Founders Discuss History of Policy Vices Within the United Netherlands

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Guest Essayist: Chris Burkett
Prince Maurice of Orange during the Battle of Nieuwpoort, 1600, Henri Ambrosius Pacx - Instituut Collectie Nederlandhttps://en.wikipedia.org/wiki/Eighty_Years%27_War#/media/File:Maurits_(1567-1625),_prins_van_Oranje,_in_de_slag_bij_Nieuwpoort_(1600).jpg

In Federalist No. 20, James Madison (with Alexander Hamilton) discusses the vices of the constitution of the United Netherlands. The United Provinces of the Netherlands, sometimes called the Dutch Republic, consisted of seven republics and was established through the Union of Utrecht in 1588. After decades of bloody religious wars, the sovereignty of the United Provinces was officially recognized with the Peace of Westphalia in 1648, but the union collapsed in 1795 during the Batavian Revolution.

In theory, Madison observes, the constitution of the United Netherlands seems to have successfully combined effective executive power with republican representation in a legislative body. “The sovereignty of the Union,” Madison writes, “is represented by the States General, consisting usually of about 50 deputies appointed by the provinces.”[1] The States General has well-defined powers and responsibilities – including the power to make treaties, to make war or peace, to raise armies and equip fleets, and to demand quotas of contribution from the provinces – and the individual provinces are restrained from engaging in certain actions that are deleterious to the other provinces or to the Union as a whole.

“The executive magistrate of the Union is the Stadtholder,” Madison continues, “who is now a hereditary Prince.”[2] Each of the seven provinces was led by a stadtholder, but the offices eventually became hereditary and, in time, the Prince of Orange came to hold most or all of the individual stadtholderships. The Stadtholder of the union was given many powers and prerogatives, including the power to settle disputes between provinces, and to command the federal troops and navy.

The United Provinces of the Netherlands, “as delineated on parchment,” seemed to have struck a form that balances popular representation with an energetic executive. “What are the characters which practice has stampt upon it?” Madison asks. “Imbecility in the government; discord among the provinces; foreign influence and indignities; a precarious existence in peace, and peculiar calamities from war.” The first vice of the constitution of the United Provinces is that there is a nearly constant tension between the different aims and policies of the States General – which wants to preserve the republican nature of the government – and the Stadtholder, with his ties to wealth and other monarchical powers in Europe. In fact, Madison writes, the authority of the Stadtholder arises mainly “from his great patrimonial estates [and] from his family connections with some of the chief potentates of Europe.”[3] This tension between the foundations and objects of the Stadtholder and States General had led to frequent disagreements and conflicting policies between the two departments over commercial affairs and defense policies.

The second vice of the union is that the States General, though vested with general legislative authority, requires “unanimity and the sanction of their constituents” for the enactment of all policies and laws. Although the unanimity requirement arose from an assumed equality of the seven provinces, and a desire to protect the provincial interests of each, it had led to two further difficulties. First, the unanimity requirement meant that a single deputy in the States General could veto measures necessary for the good of the whole union. “The Union of Utrecht,” Madison writes, “reposes an authority in the States General seemingly sufficient to secure harmony, but the jealousy in each province renders the practice very different from the theory.”[4] The second difficulty this produces is that in times of great and urgent emergencies, the States General and the Stadtholder frequently violated the constitution by ignoring the rule of unanimity. A constitution that, of necessity, is frequently violated, Madison suggests, is fundamentally flawed and in need of improvement.

The Articles of Confederation, which governed the union of American states prior to the Constitution, suffered from this second vice in some important ways. The unanimous consent of all the state legislatures and state delegations in Congress was required for all amendments to the Articles of Confederation. In the Confederation Congress, supermajorities (nine out of thirteen state delegations) were required for Congress to raise revenues, make treaties, and do other things necessary for the good of the American Union. The Federalists defended the new Constitution’s ability to remedy these potentially deadly defects: the requirements for ratifying and amending the Constitution were reduced from unanimity to a supermajority of state conventions; furthermore, all acts of Congress under the new Constitution would require only a majority vote of both houses of Congress. This last improvement especially makes it less likely that the federal government would need to violate the Constitution to take necessary actions in times of crisis, as the United Netherlands had done on numerous occasions. This problem is further mitigated by the independence and discretion of the president to take certain actions in times of crisis without prior authorization from Congress; it is further mitigated by the fact that there are implied powers in the Constitution, as indicated by the necessary and proper clause in Article II. These improvements would give the federal government a degree of flexibility to better fulfill its responsibilities, especially with regard to national security, without the need to undermine the sanctity of the Constitution by frequent violations.

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

 

[1] The Federalist ­No. 20

[2] The Federalist ­No. 20

[3] The Federalist ­No. 20

[4] The Federalist ­No. 20

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United Provinces of the Netherlands and the Articles of Confederation: Factors Influencing Design Toward a Stable U.S. Constitution

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Guest Essayist: Joerg Knipprath
Relief of Leiden 1574, Painting by Otto van Veen depicting events in Leiden, Holland, Eighty Years’ War, Dutch War of Independence (1568-1648)https://en.wikipedia.org/wiki/Eighty_Years%27_War#/media/File:Veen01.jpg


Historians have usually described the government of the Netherlands in the two centuries between 1579 and the political system’s collapse in the late 18th century as a “republic.” Consistent with his commentary about the government of Venice, James Madison did not approve of this characterization. In Number 20 of The Federalist, he deemed the United Netherlands “a confederacy of republics, or rather of aristocracies, of a very remarkable texture.” While at times complimentary in his assessment, overall he saw in their government further evidence of what ailed, in his view, all confederations, including the United States under the Articles of Confederation.

Like the Articles, the Dutch system was forged in a war for independence, the first goal of which was to survive militarily. The Dutch referred to their Revolt of the Netherlands as the “Eighty Years’ War.” Fighting against Spain began in 1566, the seven northern provinces of the Spanish Netherlands formally united in their common cause through the Union of Utrecht in 1579, a watershed step not unlike the agreements of mutual aid and action among the North American colonies in the years before 1776. The Dutch analogue to the American Declaration of Independence was the Act of Abjuration of 1581 against the king of Spain. There were some truces and cessations of hostilities in subsequent decades, but independence was not officially recognized until the Treaty of Westphalia in 1648 which ended the much broader European conflict known as the Thirty-Years’ War. Still, the Dutch Republic had been functioning as an independent nation long before the status became official.

In the romanticized founding myths of the Dutch, the struggle was about religious toleration and national independence precipitated by an inquisition launched by the Spanish crown in support of the Council of Trent of 1543 and the Catholic Counter-Reformation. That may have been the motivator for some portion of the populace, and the assertion was useful in papering over the tensions which arose among the provinces during the war. The general reality was less lofty and more prosaic.

The Habsburg family ruled the Holy Roman Empire. They had received 17 provinces of the Duchy of Burgundy in 1482, which were allotted to the family’s Spanish branch in 1556. What happened next sounds familiar to the student of American history. The new Spanish king, Philip II, sought to centralize administration over these provinces located some distance from Spain, and to increase the efficiency of tax collecting. This would diminish the power that local bodies had previously exercised under the more hands-off approach of the Burgundians and the Emperor. The commercial towns in the southern provinces and the local nobles viewed this as an attack on their ancient privileges, secular and religious.

With resistance turning into rioting in 1566, the Spanish government sent an army, led by the Duke of Alba. Although a very capable military leader said by some to be one of the greatest of all time, he was a harsh governor, referred to by the Dutch as the “Iron Duke.” His army was generally successful against the rebels, but his policy of mass executions, sackings of towns, and massacres coalesced the population against the Spanish. The rebels received the support of a Catholic German-Dutch prince, William of the House of Orange-Nassau, the incumbent royal governor of several of the provinces. Colloquially—but unjustifiably—known as William the Silent for his supposed self-control not to erupt in anger, he was an effective political leader. As one of the richest Dutch nobles, he was also an important financial supporter of the rebels.

Although William had some successes against the Spanish army, the Duke of Alba eventually defeated his forces. William fled to his ancestral lands in Germany, from where he organized several mostly unsuccessful invasions. In 1573, Philip II relieved Alba of command and instituted a policy of reconciliation and acquiescence to greater local control. That split the rebels. The mostly Catholic southern provinces, which constitute Belgium today, returned to the Spanish fold. The seven increasingly Protestant provinces of the north remained in rebellion under William’s leadership. Dutch military fortunes brightened after the army of the United Provinces was formed following the Union of Utrecht. The army was placed under the command of William’s son, Maurice, after William was assassinated by a Spanish agent in 1584. Prince Maurice remained a prominent military and political leader for the next forty years.

One facet of the conflict at which the Dutch were consistently better than the Spanish was at sea. The northern provinces had long been oriented to fishing and maritime trade. Their coastal trade surpassed that of England and France in the 16th century. By the 17th century, their horizon had expanded to oceanic trade and the acquisition of colonies and foreign trading concessions. Along with that experience came skills in naval warfare. Professor Scott Gordon, in his thorough work on checks and balances in older constitutions, Controlling the State, estimates that, in the middle of the 17th century, the United Provinces owned more shipping capacity than England, France, the German states, Spain, and Portugal—combined. Amsterdam became the leading financial center of the world until it was finally replaced by London a century and a half later. It was the Dutch bankers from whom John Adams sought help during the American Revolution, because that was where the money was. Amsterdam was also one of the largest cities in Europe in the 17th century, having grown from 100,000 to 200,000 population in the middle decades.

Although the seven provinces were formally the main constituent parts of the “United Provinces of the Netherlands,” the towns were the actual foundation of the Dutch Republic’s political structure. The approximately 200 native Dutch noble families had status but limited power. There was not the same tradition of feudalism based on relationships of lord and vassal as in other European domains. In part, this was due to the closeness to the sea, with its sources of sustenance and wealth. In part it was due to the fact that for generations, land had been recovered by draining swamps or building dikes. These “polders” were claimed by commoners.

The towns were governed by the Regents, a wealthy subgroup of the merchant elite. The towns traced their charters and privileges to the medieval period. The Regents claimed to act for and represent the citizenry. However, their authority did not rest on broad political participation. From that perspective, the structure was not a republic, but an oligarchy. Meetings of the town councils controlled by the Regents were not open to the public. At the same time, the Regents did not constitute a class-conscious bourgeoisie in a Marxist sense. Rather, their actions seem to have been driven by local identity and preserving their local power. This town-centric system of governance remained until the reorganization of the Netherlands after the end of the Republic in the 1790s.

The towns built their own defense installations and levied taxes to maintain them, to preserve public order, and to provide for the poor. They also operated their own courts, enforced provincial laws, and administered provincial policies. The policy-making bodies, the town councils, generally had between 20 and 40 members. They elected various burgomasters annually from the Regent class to carry out executive and judicial functions.

The oligarchic character of the town governments was modulated somewhat through the militia, a combination military unit and social club. They were composed of troops of well-trained and heavily-armed men. Because members had to supply their own weapons, the militias consisted of middle and upper-middle class volunteers. They were led by officers from Regent families appointed by the town councils and were expected to carry out the latter’s wishes in case of civil disturbances. According to sources cited by Professor Gordon, riots were a not-uncommon manner for the citizenry to provide feedback to the Regents about their policies. The militia sometimes stood back if they opposed those policies themselves. Such expressions of popular discontent would have been particularly potent because the towns were still rather small, with the homes of the Regent families in close proximity to the other residents.

Gordon considers the failure of the Dutch Republic to provide less destructive means of popular expression of opposition to the town councils as one of its defects. Perhaps. But such riots were not uncommon in the history of the American republic, with apparently a customary acceptance of a degree of violence before the militia would be summoned. Recent events show that still to be a characteristic of American society. Whether that shows a defect in the republican nature of the political structure created in the constitutions of the United States and the several states is an interesting speculation.

The level of government above the towns were the provinces, formally the constitutional heart of the Dutch Republic. They were governed by entities called the “provincial states,” another institution formed in the Middle Ages. This term is not to be confused with the American concept of “states” as distinct political domains. Rather, the term refers to specific constitutional bodies which governed such political domains. These were assemblies of delegates from the towns. The members were selected by the town councils typically from the members of the Regent families. A town could send more than one delegate, but each town only had one vote, regardless of its population. However, despite this formal equality where decisions were generally reached by compromise and consensus, a dominant town would necessarily exercise a greater influence. Amsterdam as the largest and wealthiest town within the province of Holland provides a telling example. A province’s nobility also had one vote.

The principal obligation of the provincial states was to maintain the province’s military forces and to provide a system of provincial courts to preside over trials for various crimes and for appeals from the local courts. These assemblies could also assess taxes, but were dependent on the towns to collect them. Not infrequently there might be tension between the provincial state and the stadholder, the province’s chief executive from the House of Orange. Those tensions were especially acute and frequent in Holland, due to the strong anti-Orangist sentiments of Amsterdam, with its bourgeois merchants, its growing tradition of secular and religious dissent, and its cosmopolitanism. At times, Holland, as well as other provinces, refused to elect a stadholder when the prior one died.

At the apex of the Republic’s constitutional structure was the States-General, the body of around 50 delegates from the provinces. It met at The Hague. Although a province might send more than one delegate, each province had one vote. This equality of sovereigns marked the constitutional nature of the Republic in Madison’s characterization of it as a confederacy. As with the provincial states, this formal equality was tempered by the inequality of size and wealth among the provinces, in particular, Holland. That province’s delegation’s willingness to provide—or not—needed funding gave it influence which better reflected its economic position. The terms of office of the delegates were determined by the provinces and could be at pleasure, for one or more years, or for life. The agenda of the States-General was set by its president, which position rotated weekly among the provinces. Unanimity was required for action, although that was sometimes ignored if a particular need arose. It had various working committees to formulate policy and a Council of State to carry out its executive functions. The Council of State was composed of the provincial stadholder and twelve other appointees of the provincial states.

Initially, the States-General was to deal with the military campaign for independence. Thereafter, its role continued to be about war in the various conflicts in which the republic found itself in the 17th century. Beyond that, the States-General had broad responsibilities over coinage, diplomacy and foreign commerce and, as the Dutch quickly entered the pursuit of overseas empire, colonial affairs. Although it had the potential to become a national legislative body, that potential remained inchoate. Aside from the overarching political jealousies of the provinces and towns to maintain their local privileges, there were more direct limitations on the powers of the States-General, as well. For one, that body could not generally impose taxes directly. It could tax the colonies, but that yielded rather little. It could make assessments on the provinces, but that depended on the willingness of their delegates to agree, especially the delegation from Holland which typically had to bear at least half of the burden of an assessment. Any loans sought by the States-General for the benefit of the Republic must be approved by the provinces. It becomes clear why Madison saw the Republic as a case study for the fate of the Articles of Confederation.

Finally, there were the stadholder of the provinces and the de facto stadholder of the United Provinces. The office was derived from the provincial governorships the Holy Roman Emperor had established. Each provincial state selected that province’s stadholder for life. More than one province could appoint the same person, a very common scenario. During the two centuries of the Republic after 1589, all provinces always appointed members of the House of Orange-Nassau. When the need arose, the province of Holland, as the most important of the union, always appointed the head of that family. Technically, there was no Stadholder of the United Provinces. However, by customary practice, the States-General always appointed the stadholder of Holland to be the Republic’s commander-in-chief. This made the head of the House of Orange the main political leader of the most populous and prosperous province and the commander-in-chief of the Republic’s armed forces. The stadholderships generally became hereditary in the mid-17th century.

The power of the Prince of Orange over the armed forces included the power to set up military tribunals and to appoint higher-level officers. He also met with foreign ambassadors and had some adjudicatory powers, such as settling disputes among the provinces. His influence was bolstered by two broad sources. First, at the level of the union, he sat on all working committees of the States-General and on the Council of State. Together with his life term, this gave him broad knowledge about political matters over a much longer time frame than the provincial delegation, analogous to the Venetian Doge’s position in relation to the Senate and Great Council. If knowledge is power, this made the prince powerful, indeed.

Second, being the stadholder of Holland and, usually, several other provinces gave him significant control over provincial and even town affairs. The provincial stadholder was the head the province’s highest court, could pardon criminals, and had significant patronage powers over the appointment of officials at all levels. He could appoint certain burgomasters, although those had to be made from lists submitted by the Regent-controlled town councils. These roles, some formal, others by accepted practice, exercised at all levels of government, and extending to civil, military, and judicial matters, made the Prince of Orange in some ways the vortex around which Dutch politics swirled. In the end, however, with the vague constitutional dimensions of the office, it was the personality and talents of the particular stadholder which defined his powers.

A curious spectacle occasionally arose when various provinces left their stadholderships unoccupied. Even the province of Holland at one point in the 18th century left that position unoccupied for 45 years. In the 17th century Holland also prohibited the House of Orange from holding the stadholderships. Soon thereafter, its provincial state abolished the office altogether. That experiment lasted only five years, when those acts were repealed in the face of an invasion by England and France. One modern commentator quoted by Professor Gordon described the princes of the House of Orange as having “a special status within the Dutch state, almost mystical … in its nature.”

The Republic’s constitution was weakened in the 18th century in part due to factional rivalries in Amsterdam, the largest and wealthiest city in the largest and wealthiest province. The monarchist pretentious of the House of Orange clashed with the increasingly militant endemic anti-Orangist attitudes of the urban bourgeoisie. With a hardening of factional positions, political accommodations became more difficult. As well, the financial burdens of the colonial empire and the military needed to support it began to overwhelm the capacities of what was, after all, a rather small country. Still, it took the military might of, first, the Prussian Army and, thereafter, Napoleon’s forces, to end the Republic’s two centuries of successful government.

Madison in Number 20 of The Federalist disparages the Dutch system, his stand-in for the Articles of Confederation, as, “Imbecility in the government; discord among the provinces; foreign influence and indignities; a precarious existence in peace; and peculiar calamities from war.” He seems to have derived his information from a book by Sir William Temple, a 17th century British ambassador to the United Provinces. But Temple was hardly an unsympathetic observer of the Republic. Where Madison saw deadlock leading to eventual dissolution and anarchy, Temple saw a system which attracted large numbers of foreigners from polities less conducive to liberty. Certainly, the federal nature of the United Provinces stood in stark contrast to the centralization of power in national governments generally, and in monarchs particularly, which was ascendant in the Europe of the time.

If one uses classic designations of constitutions, the Dutch system at first blush most closely resembles an oligarchy. If one uses Madison’s definition in Number 10 of The Federalist, it was a closed system controlled by the wealthy Regent families and the Prince of Orange. It failed the test of broad public participation even by the limited standards of the early American polities. But, if one evaluates a republic functionally, as a political structure which provides overall social stability, fosters the general well-being of the people, and promotes the liberty of individuals to follow their own paths to fulfilled lives, all by reigning in various political institutions through a functioning balancing of powers, the constitution of the United Provinces qualifies. The mutual checks provided among the levels of government (town, provinces, union), among the provinces themselves, and between the stadholder on the one hand and the provincial states and States-General created a system which protected the liberties of the people better than other contemporaneous countries. More bluntly, as Professor Gordon explains, “[W]ith this political system, the Dutch not only fought Spain and France to a standstill and invaded England, but also made their little collection of swamps and polders into the richest, most civilized, nation in the early modern world.”

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

 

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U.S. Constitution Safeguards for the Whole Union: Disunity Prevention the Founders Built in After Studying the Holy Roman Empire

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Guest Essayist: Chris Burkett
Plan of the Siege of Namur June 1692 the 30th, a Painting by Jean-Baptiste Martin; conflict considered the War of the Grand Alliance or War of the League of Augsburg; Habsburg monarchy, Holy Roman Empire, France, European coalitionshttps://en.wikipedia.org/wiki/Nine_Years%27_War#/media/File:Siege_of_Namur_(1692).JPG


In the previous essay we saw the Federalist’s critique of the Holy Roman Empire and its two principal vices: first, a lack of effective executive authority in the confederacy; and second, a lack of centralized control and effective checks by the national authority over the member states. Both of these defects were strongly prevalent in the American Union under the Articles of Confederation as well. Under the Articles of Confederation, ratified in 1781, there was no independent executive branch. Important matters affecting foreign policy and national security were handled by Congress, which created numerous “executive boards” to formulate and execute defense policies. This uncoordinated approach to fulfilling executive functions, as Alexander Hamilton observed, meant that “their decisions are slower, their energy less, their responsibility more diffused.” Hamilton continued, “Congress is properly a deliberative corps and it forgets itself when it attempts to play the executive. It is impossible such a body, numerous as it is, constantly fluctuating, can ever act with sufficient decision, or with system.”[1]

Congress also lacked any real power – especially a tax power – under the Articles of Confederation, and had no way to coerce or enforce their policies upon delinquent or disobedient states. “The next most palpable defect of the subsisting Confederation, is the total want of a SANCTION to its laws,” Hamilton wrote. “The United States, as now composed, have no powers to exact obedience, or punish disobedience to their resolutions.”[2] All revenue for the purposes of defensing the Union was raised through the voluntary compliance by the state legislatures, which was frequently lacking. Furthermore, the manner in which Congress was constituted gave the individual states great influence – if not complete control – over the affairs of Congress. Each state had one vote in Congress, and state legislatures selected their congressional delegations with authority to recall those delegations at any time. Supermajorities (nine out of thirteen state delegations) were required for Congress to enact important matters such as requisitions for revenue and making treaties. Despite specific restrictions on the states, the structure of government under the Articles of Confederation gave the individual states enormous influence and control over Congress; Congress, on the other hand, had no means by which to compel the states to comply with the Articles of Confederation. In other words, the Articles of Confederation had recreated the same fundamental defects of the constitution of the Holy Roman Empire. The result was a lack of unity, coordination, and effectiveness in doing those things vitally important for the good of the whole Union – or as James Madison put it, there was a complete “want of concert in matters where common interest requires it.”[3]

The framers of the Constitution remedied these defects by creating an independent executive with a large degree of discretionary power, especially in the area of foreign affairs. “Energy in the Executive is a leading character in the definition of good government,” Hamilton observed. “It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws.”[4] The unitary nature of the executive – as opposed to executive boards or committees – provides the office with the “energy” to act on important matters with “decision, activity, secrecy, and dispatch.” The Constitution deems the president “Commander in Chief” of the military forces of the nation, giving the office a further degree of discretion, free from the influence of a cumbersome Congress, in taking swift measures necessary for the security of the Union. Even the longer four-year term in office, combined with the mode by which the president is elected – through an electoral system rather than being appointed by Congress or the state legislatures – gives the executive a degree of independence to do those things necessary for the steady administration of the laws and the protection of the states from foreign threats.

The framers of the Constitution also found remedies to prevent the “inordinate pride of state importance” from hindering the national government’s efforts to promote the good of the whole Union.[5] By dividing Congress into two houses, the preponderance of state influence in national affairs is confined to the Senate, in which state legislatures would appoint the senators (as opposed to direct election by the people of members in the House of Representatives). Rather than each state having one vote in the Senate, the two senators do not need to agree or vote in the same way on any particular law or policy. The framers also overcame reliance on the voluntary compliance of the states to provide the needed revenue for national purposes by giving to Congress a real tax power. “There is no method of steering clear of this inconvenience,” Hamilton observed, “but by authorizing the national government to raise its own revenues in its own way.”[6] Even the “republican guarantee” clause in Article IV section three gives the national government the right to protect every state of the Union “against Invasion [and…] domestic violence.” “Without a guaranty,” Hamilton wrote, “the assistance to be derived from the Union in repelling those domestic dangers which may sometimes threaten the existence of the State constitutions, must be renounced. Usurpation may rear its crest in each State, and trample upon the liberties of the people, while the national government could legally do nothing more than behold its encroachments with indignation and regret.”[7]

Through these improvements, the Constitution of the United States provides the national government with the “energy’ needed to effectively repel foreign and domestic dangers, a higher degree of independence from state interference in national affairs, and the means to prevent the frequent dissentions, rebellions, and civil wars that constantly plagued the Holy Roman Empire.

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

 

[1] Alexander Hamilton to James Duane, 3 September 1780.

[2] The Federalist No. 21.

[3] James Madison, “Vices of the Political System of the United States,” 1787

[4] The Federalist No. 70

[5] The Federalist No. 21

[6] The Federalist No. 21

[7] The Federalist No. 21

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Ancient Confederacies, the Holy Roman Empire, and Weaknesses of Divisive Executive Authority

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Guest Essayist: Chris Burkett
“Martin Luther at the Diet of Worms” (Before Emperor Charles V and the Princes, 17th/18th April 1521). Fresco, 1879/97, by Hermann Wislicenus (1825–1899). Goslar, Kaiserpfalz, Reichssaal, North wall.https://en.wikipedia.org/wiki/Imperial_Diet_(Holy_Roman_Empire)#/media/File:Luther_(Wislicenus).jpg

In the months leading up to the Constitutional Convention in Philadelphia in 1787, James Madison carefully studied ancient confederacies so as to learn from their failures and improve upon their defects. He published his critique of the Holy Roman Empire in The Federalist essay number 19, co-authored by Alexander Hamilton.

The Holy Roman Empire was a union of kingdoms in Western, Northern and Southern Europe. It arose in the Early Middle Ages and lasted over eight centuries until its dissolution after the Napoleonic Wars. The Holy Roman Empire was initially under the nominal authority of one “emperor,” who claimed the right to rule as the heir of the emperors of Rome.  Eventually the office became “elected” after political control devolved to the dozens of kingdoms and territories that comprised the union.

Madison’s critique of the Holy Roman Empire focuses on two fundamental defects. The first is a lack of effective executive authority in the confederacy. Though initially under the centralized control of a single sovereign, the “principal vassals” claimed more localized control over the affairs of the union. “In the eleventh century the emperors enjoyed full sovereignty,” Madison writes. “In the fifteenth they had little more than the symbols and decorations of power.” The Emperor did retain certain prerogatives, including a veto power over the resolutions of the legislative body. Two judicial bodies, under control of the emperor, had “supreme jurisdiction in controversies which concern the empire.” From these institutions one might surmise that the supreme executive was extremely capable and efficient in directing the affairs of the union. But real political power in the Holy Roman Empire was vested in a Diet that represented the constituent members of the union.

The lack of an efficient executive had left important matters of security and commerce in the hands of a Diet whose members were deeply divided over local interests. “Military preparations must be preceded by so many tedious discussions, arising from the jealousies, pride, separate views, and clashing pretensions of sovereign bodies,” Madison writes, “that before the diet can settle the arrangements, the enemy are in the field; and before the federal troops are ready to take it, are retiring into winter quarters.” The military forces of the union are “defectively kept up, badly paid, infected with local prejudices, and supported by irregular and disproportionate contributions to the treasury.” This vice has left the confederacy constantly open to the predations of neighboring enemies.

Madison’s second and most important critique of the Holy Roman Empire is a lack of centralized control and effective checks over the member states. In theory, the member states are expected to restrain themselves from infringing upon the duties of the central government and are pledged to obey its authority. As Madison writes,

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

Sufficient constitutional restraints seem to have been placed on the member states to prevent them from undermining the interests of the whole union. However, as Madison writes: “Nothing would be further from the reality. The fundamental principle on which it rests, that the empire is a community of sovereigns, that the diet is a representation of sovereigns and that the laws are addressed to sovereigns, renders the empire a nerveless body, incapable of regulating its own members, insecure against external dangers, and agitated with unceasing fermentations in its own bowels.” The central authority, in its weakness, had been forced of necessity to rely on local enforcement of the acts and policies of the Diet. “This experiment has only served to demonstrate more fully the radical vice of the constitution,” Madison writes. “Each circle is the miniature picture of the deformities of this political monster. They either fail to execute their commissions, or they do it with all the devastation and carnage of civil war. Sometimes whole circles are defaulters; and then they increase the mischief which they were instituted to remedy.”

The lack of any effective centralized authority to enforce the policies of the Diet reveals the tenuous nature by which the parts of the union remain barely united. This defect is revealed in the nearly constant acts of violence and injustice among the member states. “The history of Germany is a history of wars between the emperor and the princes and states; of wars among the princes and states themselves; of the licentiousness of the strong, and the oppression of the weak,” Madison writes. In sum, the vices of the constitution of the Holy Roman Empire are marked by “general imbecility, confusion, and misery.”

Despite these vices, one might ask, what allowed the Holy Roman Empire to persist for more than eight centuries? Not the constitution and institutions of the union, Madison concludes, but matters that rely more on “accident and force” rather than “reflection and choice.” “They are kept together by the peculiarity of their topographical position,” Madison writes, “by their individual weakness and insignificancy; by the fear of powerful neighbors…[and] by the mutual aid they stand in need of, for suppressing insurrections and rebellions.”

In the following essay we will explore the remedies to these defects that Madison and the framers worked into the Constitution of the United States.

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

 

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Electoral Structure and Allegiances of the Holy Roman Empire

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Guest Essayist: Joerg Knipprath
Imperial crown of the Holy Roman Empire, displayed in the Imperial Treasury at the Hofburg, Vienna, Austriahttps://en.wikipedia.org/wiki/Imperial_Crown_of_the_Holy_Roman_Empire#/media/File:Holy_Roman_Empire_Crown_(Imperial_Treasury)2.jpg

Much of the history of the Holy Roman Empire was one of conflict and intrigue: among emperors and popes, emperors and nobles, and nobles themselves. Periods shaped by forces that fostered centralization of power in the hands of strong and capable emperors were eclipsed by developments that threatened to tear apart the Empire due to personal weaknesses or military miscalculations by the holders of the imperial title. Several generations of extraordinarily wise and astute rulers were inevitably followed by the collapse of dynasties and periods of political turmoil and social misery.

The collapse of the Western Roman Empire in the 5th century A.D. led to the formation of various Germanic kingdoms throughout the former territory. The Visigoths and other invaders attempted to carry on the Roman civilization, but lacked the administrative capabilities, technological know-how, and economic wherewithal to do so. They, in turn, also collapsed within a few generations. For the inhabitants of the former Roman domain, there was continuing danger from Germanic tribes, other marauders that are said to have been successors to the Huns, and, beginning in the 7th century, Arab raiders and armies. The Byzantine emperor’s control over those lands was nominal. The Roman Catholic Church was organizationally weak and doctrinally disorganized.

In the 8th century, the situation improved. A new line of kings had been elected by the nobles of a Germanic people, the Franks. The most prominent was a warrior-king, Charles. He defeated other German tribes and pushed against the Muslims in Spain whose advance into Frankish territory had been stopped by his grandfather, Charles the Hammer. Pope Leo III, eager to distance himself from the political and religious influences of the Orthodox Byzantine Empire, and hoping to spread the influence of the Catholic Church through the physical security offered by the Franks, crowned Charles emperor on Christmas Day, 800 A.D. Carolus Magnus, or Charlemagne, as he came to be known, was proclaimed the successor to the Roman Empire in the west. Indeed, from the imperial capital at Aachen, in the current Germany, he governed, as “Emperor of the Romans,” an area of Europe larger than anything seen since that empire.

Three decades after his death, Charlemagne’s realm was divided among his grandsons. Several centuries later, the western portion became the kingdom of France. The eastern portion became the German dominions. The end of the Carolingian dynasty in 911 resulted in the fracturing of the eastern portion. There were strong tribal loyalties within the various ancestral German domains, centered on several dukedoms and on the holdings of other, less powerful local strongmen.

In 936, Otto, the duke of the Saxons, a particularly warlike people who had been barely Christianized through force by Charlemagne a century earlier, was elected King of the Germans by the other nobles. A successful military campaigner who extended the eastern Frankish realm, Otto was given the imperial title in 962, after the Pope had appealed to him for military help. Referred to as Otto the Great, he established a new dynasty of emperors. His grandson, Otto III, revived the imperial seal of Charlemagne which had the motto, in Latin, that stood for “Renewal of the Roman Empire.” He understood this to be a clearly Christian empire, not only a political unit as imperium romanum, as reflected in his designation of the realm as imperium christianum. The successors of Otto III were weak and saw themselves as primarily German kings who happened to have holdings in Italy, not as rulers of a multicultural and transcendent Christian empire.

Once political conditions in western Europe became relatively settled by the end of the 10th century, the era of the warrior-king was succeeded by the era of the great landholding magnates. High feudalism emerged as the dominant social and political structure. Wealth, social standing, and power were based on land ownership and formalized through personal obligations between lords and vassals. On the continent more so than in England, local great men were independent of the emperor, who was addressed at times as “King of Germany” or the “German Roman Emperor.” These nobles retained their ancestral privileges and often claimed new ones.

Nevertheless, the idea of Empire remained alive. This political tension of a universal empire, yet of a German people, led externally to frequent, and not always enthusiastic or well-received, involvement of the Germans in the affairs of Italian communities. Internally, it resulted in the strange federal structure of what formally became known in the 13th century as the Holy Roman Empire. The interactions between emperors and popes further underscored the claims to universality. Papal coronation bestowed God’s recognition of the emperors’ legitimacy as secular rulers in Christendom. Refusal by a pope to grant that legitimacy, or removing it later by issuing a ban on the emperor, endangered the emperor’s rule by absolving the people, particularly the nobility, of loyalty to their earthly lord and excused them from fealty to any oath sworn to that lord. In a society vastly more religious than ours, within a feudal structure fundamentally based on mutual personal loyalties and obligations, such a development could prove fatal to the ruler.

After the end of the Saxon Ottonian line in 1024 and of its successors, the Frankish Salians, control over the Holy Roman Empire shifted in 1127 to a family from another part of the realm, the Hohenstaufen line from the Duchy of Swabia in southwest Germany. Under their best-known ruler, the charismatic and militarily and politically astute Emperor Frederick I Barbarossa (“Red beard”) from 1155 to 1190, the Empire achieved its greatest geographical expanse. Shortly after the rule of his similarly powerful grandson, Frederick II, the Hohenstaufen line ended, and the Great Interregnum brought considerable turmoil to the Empire and contests among various noble families for the imperial title. Rival emperors from different houses were chosen, and a general decline of the Empire’s territory and influence occurred. Not until the 16th century did the Empire regain a prominent position in Europe.

The struggle between emperor and nobles ebbed and flowed, depending significantly on the dynamism and capabilities of the emperors. These contests were endemic, with a parallel for several centuries in the conflict between the emperors and the popes. An example of the latter was the Investiture Controversy over the right to name local church leaders which led to a half-century of civil strife in Germany in the late 11th and early 12th centuries and ended with the emperor’s powers reduced as against popes and local nobles. Even as strong an emperor as Frederick II out of political expediency had to confirm, in statutes of 1220 and 1232, previously only customary privileges to the nobles, such as over tolls, coinage, and fortifications.

In 1493, Maximilian I from the Habsburg family, became Holy Roman Emperor. From that year, the Habsburg line provided an almost uninterrupted sequence of emperors until the Empire was abolished in 1806. A significant change in outlook under Maximilian was a turn to a more national identity and the stirrings of a nascent nation-state, in part due to the proposed Imperial Reform during the late 15th century supported by the energetic Maximilian. As a consequence, the realm began to be known as the Holy Roman Empire of the German Nation.

The Imperial Reform of 1495 was an attempt to modernize the administration of the realm and to increase the power of the emperor through more centralized governance. Aside from some success in making aspects of legal administration uniform through the use of Roman Law, the reforms came to naught by being ignored in the local principalities. There, the rulers generally strove to exercise the absolute powers of monarchs in England and France. As to the Empire, these local nobles guarded their privileges. Not to be outdone, the independent imperial “free” German cities, with their rising populations and increasingly powerful commercial bourgeoisie, were no less jealous of their privileges than the landed nobility.

The problem with the political structure of the Holy Roman Empire in the eyes of the framers of the American Constitution of 1787 was the overall weakness of the emperor in relation to the nobles. The Empire was a federal system, but, in their view, an unsuccessful version. The criticism is, overall, a fair one. Alexander Hamilton and James Madison, writing in The Federalist repeatedly identified the sources of weakness. Both emphasized the straightened financial circumstances in which the emperor frequently found himself to fund the costs of imperial government or necessary military actions against foreign countries. That difficulty was due at least in part to the obstructions created by local rulers to the flow of commerce.

Hamilton mentioned in Federalist Number 12 the emperor’s inability to raise funds, despite the “great extent of fertile, cultivated, and populous territory, a large proportion of which is situated in mild and luxuriant climates. In some parts of this territory are to be found the best gold and silver mines in Europe. And yet, from the want of the fostering influence of commerce, that monarch can boast but slender revenues.” Along the same lines, quoting from the Encyclopedia, he wrote in Number 22, “The commerce of the German empire is in continual trammels, from the multiplicity of the duties which the several princes and states enact upon the merchandises passing through their territories; by means of which the fine streams and navigable rivers with which Germany is so happily watered, are rendered almost useless.” In Number 42, Madison seconded Hamiltons’s point, “In Germany, it is a law of the empire, that the princes and states shall not lay tolls or customs on bridges, rivers, or passages, without the consent of the emperor and diet [the parliament]; though it appears from a quotation in an antecedent paper, that the practice in this, as in many other instances in that confederacy, has not followed the law, and has produced there the mischiefs which have been foreseen here.” Both writers painted this bleak picture as an omen of what would occur in the United States under the Article of Confederation. The Constitution would prevent this problem because, there, Congress was given “a superintending authority over the reciprocal trade of [the] confederated states.”

More fundamentally, however, the problem of the Empire and, by analogy, the United States under the Articles of Confederation was in the structure itself, an imperium in imperio, a state exercising sovereignty within another state. In Number 19 of The Federalist, Madison presented a lengthy overview of the Empire’s history. He identified problems with the structure, such as the difficulty to meet military emergencies or collect requisitions. The emperor had no holdings as such, only in his position as a hereditary sovereign in his ancestral lands or those acquired by marriage. Madison dismissed the Empire as a playground of foreign rulers because of the conflicts among the members of the Empire and between the emperor and the nobles large and small. This division allowed foreign rulers to split the allegiances of the nobles and to keep the empire weak. The worst example of this was the Thirty Years’ War from 1618 to 1648. While there were limitations on the powers of the nobles, and while the emperor had various prerogatives, these were paper powers, not real. Ultimately, the problem was that the empire was a community of sovereigns.

In support of Madison’s critique, one can look at one locus of power, the Reichstag, the name for the Imperial Diet or parliament. The Diet in some form already existed during Charlemagne’s time. Originally intended as a forum for discussions, not as a modern legislative body, by the 11th century it presented a serious counterweight to the emperor and a source of power for the nobles in two ways. First, the Diet participated in the making of law, typically through a collaborative manner with the emperor. Second, certain members of the Diet elected the Emperor.

The Diet during the Middle Ages comprised two “colleges.” That number was eventually raised to three as feudalism gave way to a more commercial modern society, and the growing importance of the bourgeoisie in the cities required representation of their estate. Each member of those colleges in essence represented a sovereignty, and the Diet in that light was a “community of sovereigns.” When the Diet met, the colleges and the emperor attended together. All were seated in a carefully prescribed manner, respecting their rank, with the emperor front and center and raised at least three feet above all others. Voting might be either per individual or per collegium as an estate in a complicated arrangement, depending on the rank of that individual and group.

The most important of these groups was the college of electors, which represented another locus of power in the Empire. Not only did the prince-electors vote individually, rather than as an estate, but they had the important occasional task of electing the emperor, the third institution of power. There was a fourth locus of power in the Empire, that is, the pope. Papal influence precipitated many political crises in medieval Europe, because the emperor was not properly installed until crowned by the pope, a practice discontinued after Charles V in the 16th century. However, papal influence is not crucial to an examination of the Empire’s political constitution as that structure influenced the debates over the American Constitution of 1787.

The election of the emperors was derived from the ancient practice of German tribal councils to elect their leaders for life. The direct male heirs of a deceased ruler generally had the advantage in any succession claim, but heredity was never a guarantee. That practice was extended first to the election of the kings of Germany by the dukes of the largest tribes in the 10th century, and then to the election of the emperors in the 13th century. Initially, the number of electors was somewhat fluid, but eventually there were four set secular and three set ecclesiastical electors. Over time, the membership was increased to nine and, briefly, to ten electors. The ecclesiastic rulers from certain archbishoprics eventually were replaced by secular electors, and, in time, the secular rulers themselves might be replaced by others as power shifted among rulers of various local domains.

A critical moment came with the promulgation of the Golden Bull of 1356 by the Imperial Diet at Nuremberg. A “bull” in this usage is derived from the Latin word for a seal attached to a document. Because of such a decree’s significance, the imperial seal attached to this document was made of gold. This particular golden bull was the closest thing to a written constitution of the Empire. It was the result of the political instability caused by contested elections and succession controversies. It specified the number—seven—and identity—by secular or ecclesiastical domain—of the imperial electors. Procedures were set for the emperor’s election, the specific functions of the electors were prescribed, and an order of succession was provided if an elector died. For example, to prevent rival claims from lingering and dragging the realm into disunity and war, the deliberations of the electors must result in a timely decision. Failure to decide on an emperor within 30 days in theory would result in the electors being given only bread and water as sustenance until they concluded their task.

Also significant was the Golden Bull’s undermining of the emperor’s power. Sometimes described as a German analogue to the Magna Charta of 1215 imposed by the English nobility on King John, it affirmed the privileges of the nobility against the emperor. Tolls and coinage were the right of the nobles in their domains. Crimes against them, including presumably through actions by the emperor, became treason against the empire itself. The rulings of their courts could not be appealed to the emperor. With a few notable episodic exceptions, such as the rule of Maximilian I and Charles V in the 16th century, this decree put the Empire on a gradual path to disintegration and reconfiguration as independent nations-states.

Voltaire is credited with the quip in his Essay on Customs in 1756 that the Empire was “neither Holy nor Roman nor an Empire.” Whatever might have been the veracity of his derision half a millennium earlier, when he wrote the essay his satire did not require much nuanced reflection on the part of his readers. The emperor in a basic sense was always the primus inter pares, and his power rested on the prestige of his title, the size and wealth of his own ancestral domain, and his skills as a political operator and military leader. Even with the emergence of the modern nation-state, the Holy Roman Empire remained just a confederation of de facto sovereignties, a matter underscored by the Treaty of Westphalia in 1648, which ended the Thirty Years’ War. The Habsburg ruler’s power was a far cry from the classic imperium of Octavian.

With the Reformation and the rise of the self-confident nation-state, the Roman and classic medieval idea of the universal Christian empire also became anachronistic. And it was no longer “Roman.” The conscious effort of Frederick I Barbarossa in the 12th century to demonstrate that the Empire was “Roman” stands in stark contrast with the 16th century, when emperors and the Diet emphasized its German character. As constituent German entities in the Empire, such as Prussia and Bavaria, grew more powerful, the struggles between emperor and nobles intensified and sharpened into outright wars as between independent nations. The imperial structure and its institutions, such as the Diet, became weaker and, indeed, irrelevant. Despite some belated and ineffectual efforts at reform and reorganization around the turn of the 19th century, the Empire, the thousand-year Reich, was dissolved a half-century after Voltaire’s remark, when Napoleon’s army crushed the emperor’s forces and effected the abdication of Francis II in 1806.

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

 

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Guarantee Clause of the U.S. Constitution: Republic of Venice, and Founding America on a Process of Governance Through Elections

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Guest Essayist: Daniel A. Cotter
Didier Descouens Photo, Venetian Arsenal "Solid ground entrance" of the Arsenale in Venice was built between 1692 and 1694 on a project by Alessandro Tremignon. Eight standing figures on pedestals on the ground: At the front row: from left to right: La Giustizia by Giovanni Antonio Comino, Marte by Giovanni Antonio Comino, Nettuno by Giovanni Antonio Comino, Bellona by Francesco Cabianca At the the second and the third rows: L'Abbondanza by Francesco Cabianca (last row on the right), La Vigilanza by Francesco Cabianca (second row on the right), Two more Allegorical statues by Giovanni Antonio Comino,(second and third row on the left)https://en.wikipedia.org/wiki/Venetian_Arsenal#/media/File:Campo_de_l'Arsenal.jpg


America’s Founders and Constitution Framers who gathered in Philadelphia in 1787, 235 years ago this May, did not arrive without examples of what worked and what did not work in past empires or republics. In Essay #12, we examined the Constitution’s wisdom in light of the Roman Empire and how certain provisions helped ensure against regime failure. In this essay, we explore further some of the Constitution’s wisdom in preventing such failures.

The Republic of Venice

While the Republic of Venice officially lasted eleven hundred years, the five hundred years referred to here is the constitutional period, from 1297 until the fall of Venice in 1797. In 1297, an ordinance was passed providing for the Council of Forty. Venice was ruled by the doge, elected by the Council, and ruled for life. The Founding Fathers would consider the form of government of Venice and provide protections against regime failure, including the Republican Guarantee Clause.

The Guarantee Clause

Article IV, Section 4 of the Constitution provides:

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

This was an important provision included by the drafters to ensure a process of governance through elections. The drafters had examples of the Republic of Venice and Rome and other regimes in collapse, with concerns about other forms of government, even those labeled republics, at its core.

In Federalist No. 57, the reality of various forms of republican government is acknowledged:

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

In 1787, ahead of the Constitutional Convention and back from a trip to the Netherlands, John Adams published the first of his three-volume set, “A Defence of the Constitutions of Government of the United States of America.” In it, his goal was to defend the tripartite form of federal government. He examined other republics, including Venice. As to Venice, he wrote:

“It was at first democratical…. the people…determined that one magistrate should be chosen, as the center of all authority…. He was to be for life…he was to have the nomination of all magistrates, and the power of peace and war.”

Adams then discusses the evolution of the system in Venice, with power being in a few and not in the populace. Adams proposed the form of republican government that would find its way into the Constitution.

Adams concluded Volume I:

“All nations, under all governments, must have parties; the great secret is to controul them: there are but two ways, either by a monarchy and standing army, or by a balance in the constitution. Where the people have a voice, and there is no balance, there will be everlasting fluctuations, revolutions, and horrors, until a standing army, with a