Victoria Bauman is a successful creative entrepreneur. Her passion for the arts and creative expression began at an early age while attending a Waldorf School where the arts are fostered and connected to all aspects of the learning process. She continued her study in the arts while attending a high school specifically for the arts and then into college with a focus on film and art history. Her film studies background was an avenue for her work on various movies, commercials, and TV sets.

Victoria believes, Art brings beauty to the world – a beauty that can be found all around and have a profoundly positive impact in a child’s life. Victoria served as Constituting America’s Communications Director during its’ inaugural year. She is honored to be a part of an organization that uses art to help children learn about, understand, connect with, and appreciate the importance of the United States Constitution.

Guest Essayist: Sam Houston

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While the states which comprise the United States of America each have a unique story and history, the political and constitutional evolution of the great state of Texas is a compelling story in and of itself. I know, for you non-Texans your first response might be “there goes another one of those Texans who believes everything about Texas is bigger, brighter, bolder and more significant than everyplace else in the world”! Admittedly, true Texans are unabashedly proud. They hold an opinion which tends to advance the idea Texas is first in everything and the rest of the world can at best be “first runner up.” However, when one considers the fascinating history of Texas, the uniqueness of her size and the role she played in the growth and development of the United States, her role cannot be overlooked even by the most objective analysis.

Originally explored by the Spanish Conquistadors, Texas was a remote and dangerous land; vast in area and boundaries vague in definition. The aggressive nature of the Lipan Apache, as well as the Comanche and several other tribes, made ordinary settlement almost impossible. After the turn of the 18th century the Mexican government wished to establish a presence in its vast territories and set forth to establish a number of military outposts and Catholic missions, but they were wildly scattered and grew very slowly. Seeking a way to initiate colonization the Mexican authorities ultimately reached out to a gentleman who was from New England, by the name of Moses Austin. In exchange for receiving a significant land grant, Moses agreed to relocate 300 families at this own expense to this raw land called Tejas. This initial land grant to the Austin Colony which became known as San Felipe De Austin, was the beginning of mass immigration to Mexican Tejas from the United States.

At the time in the United States there was what they called an “economic panic” (a recession) and to purchase land from the U.S. Government cost $1.25 an acre and had to be paid in cash. Quite frankly, not many people at the time had cash money and there were not banks, mortgage companies, or savings and loans and the like in which to be able to secure a loan to purchase land. However, in Mexican Tejas, the holders of these huge land grants could give a settler 4,428 acres for ranching, and 177 prime acres for farming, and it was all free! FREE! Can you just imagine? Soon citizens of the United States were pouring into Tejas like water from a bucket with a hole in the bottom!

For these Anglo immigrants coming into Mexican territory, they were accustomed to certain rights, privileges and protections which were guaranteed by the U.S. Constitution; however, in Mexican Tejas these rights simply did not exist. The newly created Mexican government had only recently gained its Independence from Spain and its legal background was based on a far different set of values and priorities than the U.S. Constitution. These differences were even more brazenly made apparent when in the fall of 1835 the President of Mexico, Santa Anna replaced the Constitution of Mexico with the Siete Leyes (Seven Laws). These changes effectively eliminated all state governments in Mexico including Tejas and made Santa Anna a military dictator in command of the entire Mexican nation.

For the Anglo Americans who had immigrated to Texas this elimination of state government and a creation of a conservative, strong, Catholic dominated, centralized government was simply too much and too foreign an idea to accept. Armed conflicts arose and soon the citizens of Texas eventually were in open revolt: declaring their independence from Mexico on March 2, 1836.  Santa Anna attempted to enforce his authority by armed action against the Texicans and was successful at the Battle of the Alamo.  A few weeks later at Goliad, Texas Commander James Fannin surrendered his out-manned and outmaneuvered men, believing they would be treated as prisoners of war by the Mexican authorities. However, under Mexican law the Texicans were nothing other than “pirates” and on Palm Sunday of 1836, all 376 men were shot and their bodies burned as a warning to all who opposed Mexico.

At the Battle of San Jacinto in April of 1836, Texas forces under the command of Sam Houston defeated Santa Anna and ended the Texas Revolution, resulting in the creation of the independent Republic of Texas. The Texas Constitution of 1836 was largely modeled after the U.S. Constitution except it expressly permitted slavery and forbid Indians or slaves to roam freely or to become Texas citizens.

Texas subsequently had revised Constitutions in 1845,1861,1866,1869 and 1876. These changes largely coincide with the significant historical events of Texas joining the Union, seceding to join the Confederacy, and then rejoining the Union of the United States. The current constitution, (the 1876 Constitution), is one of the longest state constitutions in the United States and one of the oldest still in effect. Amendments have been adopted 456 times; an additional 176 have been passed by the Texas State Legislature then rejected by voters.

Most of these amendments are due to the document’s highly restrictive nature. It states that the State of Texas has only those powers explicitly granted to it; there is no state equivalent of the necessary and proper clause to facilitate controversial legislation. Thus, the Texas Constitution functions as a limiting document, as opposed to the U.S. Constitution’s purpose as a granting document.

Right from the very start, the citizens of Texas wanted political power to vest in its individual citizens and for their government to be unable to “expand” their power at its own whim. In Texas, the right of the individual to be free from government intrusion, to be free from an expansive government, to be free from tyranny began with the societal experience of its American immigrants and was sharpened by the authoritarian rule of Santa Anna. Forever more its founding fathers wanted Texas to be free from abuse, intrusion, and over reaching by its government. The constitution of Texas so reflects this attitude and the attitude which formulates much of the current political climate of Texas today.

Sam Houston has had the good fortune to experience a wide variety of professional endeavors. He was an award-winning trial lawyer and the 1992 recipient of the Oklahoma Bar Associations “Courageous Advocacy Award”. He has been heavily involved in the horse industry having served on the Board of Directors of the National Reining Horse Association for many years. He created and hosted a national television show “Inside Reining” which received the coveted Vaquero Award from the National Cowboy Hall of Fame for excellence in promoting the Cowboy lifestyle. He is a playwright, author, actor, public speaker, and the star of “The Lion of Texas-An Evening with Sam Houston”; a one man play about his namesake and most iconic character in Texas history. Currently he is the General Manager of the Granbury Live Theater in Granbury Texas where he proudly lives with his wife Teresa.

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Guest Essayist: Joerg Knipprath

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After the adoption of the Constitution, the next significant use of this compact theory occurred in the Virginia and Kentucky Resolutions of 1798/9, authored by James Madison and Thomas Jefferson, respectively, and triggered by the Adams Administration’s Sedition Act. These resolutions held that Congress had only limited and delegated powers. If Congress legislated beyond those powers, it invaded the reserved powers of the states and threatened to consolidate power in itself. Division of powers existed to protect the people’s rights against tyranny. A state government could, perhaps even must, then declare the unconstitutional nature of the Congressional action. Beyond that, matters got murky. The means of redress were left to each state. For Virginia, this included interposition of state authority between its citizens and Congressional usurpation of their rights. Whether this went beyond seeking political change by pressuring Congress to repeal the law or petitioning that body to call a constitutional convention under Article V of the Constitution, to actively using state executive authority to prevent enforcement of the federal law, was not discussed. Though it was implied, there was no clear assertion that the state’s action (by itself or in concurrence with others) outright nullified the offensive law. The more radical Jefferson, however, did allow that a state could nullify the offending federal law within its territory.

The 1798/9 Resolutions and the earlier debates on the Constitution featured prominently in subsequent national controversies. Similar expositions of the federal structure were used to justify the actions of New England Federalist Party politicians at the Hartford Convention in 1814 and the more radical ideas–such as secession–that were proposed there for future consideration.

Calhoun proposed his doctrine of state nullification of unconstitutional federal laws in his Exposition and Protest against the Tariff of 1828. In subsequent writings, such as his 1831 Fort Hill Address, he further developed and refined the constitutional foundation for nullification. At the same time, he also undertook to provide a constitutional basis to protect the rights of political minorities through his doctrine of “concurrent majorities.” Acts of government whose burdens fell heavily on a particular (geographical) minority had to be approved both by the national majority and that minority.

While Calhoun began with the same assumptions about the “compact nature” of the Constitution and the political structure which it comprised, he added some important refinements. Each part, the Union and the States, had their assigned powers. Neither could invade the powers of the other, as delegated to the former and generally reserved to the latter. The difficulty lay in resolving conflicts that might arise over their relationship. Interposition, as accepted in the Virginia and Kentucky Resolutions, and nullification, as asserted by Jefferson in the latter, were prerogatives retained by the States against constitutional usurpations by the general government. But those tools were forms of protest, not resolution of conflict. The general government, being a creature of the Constitution, could not, through its agents, sit as judge in its own cause.

Calhoun relied on that 18th-century American contribution to political theory, the constitutional convention, to supply the remedy. Sovereignty lay in the people, as both sides agreed. As shown by the process of the Constitution’s adoption in the 1780s, an ultimate act of political association–and, by analogy, disassociation–by the people of a state required their consent. Since nullification of a federal law placed the state on a path to secession, the people must approve that initial step.  It was not possible, as a practical matter, to gather the people as a whole to debate and decide the matter. Hence, the action had to be undertaken by a special body elected by them and assembled for only that purpose. Only if the convention voted to nullify the federal law might the state legislature enact an ordinance of nullification. If the proper process of nullification was completed, it was up to Congress to resolve the controversy by calling a convention under Article V of the Constitution. If that convention voted in agreement with the state, and the convention’s action was approved by three-fourths of the states, the federal law was nullified. If the nullification was not approved either by the convention or the other states, the original state might vote to rescind the nullification or move to secede.

Calhoun’s proposal was built on existing constitutional process in Article V. However, he cleverly extended its reach because Article V required two-thirds of the states to petition Congress for a convention, while Calhoun’s convention was precipitated by the action of a single state. On the other hand, Calhoun stopped well short of the most rigid states’ rights position that potentially would legitimize nullification of a federal law within a state by the action of that state alone. Enough other states still had to concur to satisfy Article V, which assured against frequent resort by states to such a destabilizing course. Calhoun struck a balance between the interests of “Liberty and Union” in a manner that sought to avoid the extreme confederationalism of the unconditional nullifiers and secessionists, on the one hand, and of the biased nationalism of Congress and the Supreme Court. The former, after all, had been rejected by the language of the Articles of Confederation, in the ratifying debates on the Constitution, and in the formal rejection by many states of the Virginia and Kentucky Resolutions. At the same time, neither the Congress–despite the structure of the Senate–acting politically, nor the Supreme Court, acting judicially to balance Congress’s powers under the Constitution with the Tenth Amendment, could be relied on as fair arbiters of national-state disputes.

Today, Calhoun’s approach lacks constitutional legitimacy, as do more radical theories of nullification and secession. Yet, one can detect more than a faint connection between the broad claims of earlier nullifiers and secessionists and what has sometimes been called the “neo-Confederate” position of California and other “sanctuary” cities and states regarding the harboring of aliens living in the United States in violation of immigration laws. But, as Calhoun and the earlier Antifederalists worried, the other constitutional protections against “consolidation” have proven inadequate to the task. The states can go, hat in hand, to plead their case politically to Congress or in litigation to the Supreme Court. But the Senate is, as often as not, a happy collaborator in expanding federal power at the expense of state autonomy. The Supreme Court, in turn, has declared the Tenth Amendment a mere “truism” and, excepting a few timid anomalies, appears content to strain constitutional language ever-more to extend the reach of federal power. Perhaps it was inevitable due to human nature and the inbuilt structural imperfections of the system, as the Antifederalists charged, or perhaps it is the result of the complexities of a massive modern industrial society, but today’s “federalism” is patently not the Founders’ declared vision.

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

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Guest Essayist: Joerg Knipprath

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A persistent controversy during the Founding Period was the nature of the union and its relationship to the states. The issue had its antecedents during the colonial period in Benjamin Franklin’s proposed Albany Plan of Union in 1754. That unsuccessful proposal for–mostly–a defensive alliance among the colonies sought to produce a federation, “by virtue of which one general government may be formed in America…within and under which government each colony may retain its present constitution, except in the particulars wherein a change may be directed by the said act.” Franklin’s proposal bore a striking resemblance to more far-reaching subsequent attempts at union, such as the unsuccessful plan by Joseph Galloway in the First Continental Congress and the even more ambitious Articles of Confederation in the Second Continental Congress.

Common to all of these constitutional efforts was the confederal nature of the structure, with power emanating from the constituent colonies (or states) and granted to the federal “head.” Thus, the colonial assemblies or state legislatures selected the members of the union’s policy-making body, the powers of that body were limited to enumerated objectives that affected the union as a whole, and all other powers were expressly reserved to the constituent colonies or states. The Articles of Confederation–the most important effort until then, in that they created a more sophisticated and consummated plan of government–struck a delicate balance between federal power and ultimate state sovereignty. While the Congress had fairly significant powers that could be exercised either by a majority of the assembled states or, sometimes, by nine out of thirteen in the potentially delicate areas of taxation, commerce, and military mobilization, the Congress acted on the constituent states, not on the residents directly. As well, while states were authorized by the Articles to send multiple delegates to represent them in Congress, each state could cast only one vote. Finally, each state was described as having acted in its corporate capacity to create the union, and, to be part of the union, each had to approve the Articles, thereby clearly anchoring the locus of sovereignty in the independent founding states.

Debate over the Constitution of 1787 in the Philadelphia drafting convention and in the subsequent state ratifying conventions also focused significantly on the nature of the union and the relationship of the state and federal sovereignties. Opponents of the Constitution claimed that the states’ sovereignty had been destroyed. They warned, loudly, frequently, and widely, that the states’ republican essence was threatened by this new “consolidated” government, a freely-hurled epithet that threw the Constitution’s proponents on the rhetorical and political defensive.

As evidence for alarm, the Constitution’s opponents pointed to the broad new powers through which Congress acted on individuals directly and by-passed the states; the supporters pointed out that those powers were few in number. The opponents raised the availability of further implied powers, especially as embodied in the “necessary and proper” clause; the supporters (eventually) agreed in the Tenth Amendment that the states retained all powers not given to the general government; the opponents charged that this assurance fell far short of the Articles which had declared that the states retained all powers not expressly conferred on the Congress. Opponents claimed that the Constitution shunted aside the state sovereignty by declaring that the “People of the United States” had established the Constitution; supporters responded that the original draft had been that the “People of the States of [named 13 states]” had established it, but that there was no assurance that all thirteen states would eventually approve it, so the language was changed as a matter of form, not substance. Opponents pointed out that state conventions, not legislatures as constituent part of the state sovereignties, would approve the Constitution, and that only nine were necessary to do so; supporters rejoined that this reflected the ultimate sovereignty of the people and that, in any event, each state that wanted to be part of this new arrangement had to approve the Constitution.

James Madison in Federalist 39 made an earnest, though not always convincing, effort to minimize the changes from the Articles, by explaining how some of the Constitution’s characteristics indeed were national but that in many fundamental ways the new system retained its federal essence. Both sides were deeply at odds in their perceptions about the nature of the new constitutional structure. The position of Madison and other supporters of the Constitution was that there existed a dual sovereignty in this new federalism undergirded by the ultimate sovereignty of the people acting in and through the several states. Their critics dismissed this as nonsensical. Ultimately, practical sovereignty had to lie either with the state governments acting on the people or with the national government doing so. To the critics, the answer was clear, that the national government would expand its reach and destroy the state governments, consolidating all power within itself. The republic would end, and tyranny would rule.

Once the Constitution was adopted, the struggle turned to the issue of how, as a practical matter, to preserve state sovereignty and self-government within this novus ordo seclorum. One tool lay in the structure of the government itself. The Senate not only was a political counterweight for the small states against the larger states’ general influence in the economic and political direction of the union and their numerical power in the House of Representatives. That argument had been the tool to broker the great compromise in the early summer of 1787 that prevented the looming break-up of the convention. As well, the Senate, with its equal votes for each state, and a selection process that tied the membership directly to the legislatures of their state governments, represented what remained of the constitutional idea of a federalism resting on the constituent states. At least until the fundamental constitutional change wrought by the 17th Amendment, the state governments’ control of the Senate would negate or, at least, blunt efforts by the “popular” branch, the House of Representatives, to accrete power in the federal government at the expense of the states.

The extent to which the Framers’ envisioned role for the Senate was realized is unclear. The emergence of organized programmatic political parties introduced a variable that might redirect the loyalty of a senator from his state to a party and its national policies. On the other hand, senators were remarkably able in matters of great national controversy to focus on their home state governments’ political preferences and oppose their same-party fellows from other states who entertained contrary political positions. Senators’ votes on great national issues in the first half of the 19th century on war policy, tariffs, slavery, and, indeed, the nature of the union itself typically reflected whatever benefitted those Senators’ states, even at the risk of tearing apart the parties with which they were affiliated. The respective positions of Senators Daniel Webster of Massachusetts and John C. Calhoun of South Carolina on these matters are examples, even as they switched positions as their states’ interests required.

Calhoun, especially, recognized the increasingly tenuous hold of Southern states on the Senate and sought to develop a systematic constitutional theory to protect particular state institutions from national control. His specific concerns were, initially, the matter of protective tariffs sought by Northern manufacturing interests and opposed by Southerners as economically ruinous and, subsequently, preservation of the “peculiar institution” of slavery. As a more fundamental objective, he sought to bolster the ability of states generally to resist the consolidation of government in an increasingly self-regarding and confident American “nation.”

The constitutional case for vigorous state sovereignty to counter the dangers from a consolidated general government had been made frequently by the Constitution’s critics during the ratification debates. Their claim rested on the principle that the union was a compact of States. They pointed to the fact that the Constitution’s legitimacy rested on approval by the states; that the Constitution’s proponents frequently had asserted that the plan was not a revolutionary new system but an improvement of the extant one, as expressed in the Preamble’s objective to “form a more perfect Union;” and that failure to adopt the new plan would not mean the creation of 13 fully independent entities, but, rather, continuation of the earlier plan that had established a “perpetual union.” The shift from approval by the state legislatures under the Articles of Confederation to approval by state conventions under the proposed document merely reflected a more refined understanding of republican theory that fundamental alterations must reflect as clearly as practicable the consent of the governed.

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

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Guest Essayist: Val Crofts

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Thirtieth to join the United States, Wisconsin, known as “The Badger State,” ratified the     U.S. Constitution May 29, 1848. The Wisconsin State Constitution currently in use was adopted in 1848.

“On Wisconsin!” were words exclaimed by Arthur MacArthur Jr. at the Battle of Chattanooga in 1863 urging his fellow Badgers on during an important phase of the battle for which he was awarded the Congressional Medal of Honor. The state’s official slogan is “Forward!” which embodies the spirit of LTG MacArthur and the spirit of the people who live here today. Citizens of Wisconsin are always looking to innovate, expand and advance, but they are appreciative of their past as well.

Wisconsin received its name from the river that runs through the center of the state named by the Miami Indians. The word “Wisconsin” means “river running through a red area” and may possibly refer to the beautiful red bluffs located near today’s city of Wisconsin Dells. For 10,000 years, Wisconsin has also been home to various Native American tribes including the Oneida, Chippewa, Menominee, Ho-Chunk, Sauk and Mahican.

In 1634, European explorer Jean Nicolet was the first European to have landed in Wisconsin near the present city of Green Bay. The French attempted to colonize the area and operated a very successful fur trade in Wisconsin. The French established a military and commercial presence in Wisconsin until after the French and Indian War, when the Great Britain assumed control of the area. The U.S. acquired what is today Wisconsin after the Treaty of Paris in 1783, ending the American Revolution.

In 1836, the Wisconsin Territory was organized and the first territorial legislature met in Belmont, Wisconsin. In 1848, Wisconsin was admitted to the Union as the 30th state with Madison being designated as its capital city.

The Wisconsin Constitution was written at the state’s Constitutional Convention in Madison in December of 1847 and was approved by the citizens of Wisconsin Territory in 1848. This original Constitution has been amended over 100 times but is still in use today, making it the oldest state constitution outside of the New England states. At first, the Wisconsin Constitution granted suffrage to white male citizens over 21 and to Native Americans who were citizens of the United States but it did allow suffrage to change over time as the state legislature intended it to. The banking industry was very controversial in Wisconsin at this time and the idea of the state chartering a bank was voted on at the same time as the state Constitution was ratified. With this vote, the citizens of Wisconsin allowed the state to charter banks within its borders.

Today’s Wisconsin Constitution consists of a Preamble, thanking Almighty God for the freedoms that citizens of the state are blessed with, and then 14 Articles. The first article is a general declaration of rights as citizens of Wisconsin. This allows Wisconsin citizens to live under the same freedoms as the United States Bill of Rights, to prohibit prison sentences for debt, place military under the control of civil authorities, and guarantees our citizens the right to fish and hunt.

The Wisconsin State Legislature is described in Article Four of the state Constitution and is a bicameral lawmaking body comprised of the Wisconsin State Assembly and Wisconsin State Senate. The 4th Article allow states how state representatives are elected and sets forth the powers and limitations of our state legislature.

Article Five establishes the Legislative Branch in Wisconsin. The state’s executive branch consists of a governor and a lieutenant governor, who are each elected to serve four year terms. The powers and duties of the state executive are also outlined here as well, including the line-item veto over appropriation bills. The succession chain of governance is also outlined here, should the governor resign, be recalled or pass away.

The Judicial branch is established in Article Seven and grants the state a Supreme Court, composed of seven Justices, each holding 10-year terms. The Constitution also creates the Wisconsin Circuit Court system, as well as the Wisconsin Court of Appeals. The state may also set up courts and jurisdictions over cities, towns and villages within the state. The impeachment process of state officials is outlined here as well.

The original Wisconsin Constitution document is unfortunately missing and the copy on display in our state capitol building is a replica. The original may have been sent to a publisher and lost somewhere along the way. Fortunately for the citizens of Wisconsin, the words and ideas embodied within the document still exist and will endure far into the future. On Wisconsin!

Val Crofts is a Social Studies teacher from Janesville, Wisconsin. He teaches at Milton High School in Milton, Wisconsin and has been there 16 years! He teaches AP U.S. Government and Politics, U.S. History and U.S. Military History. Val has also taught for the Wisconsin Virtual School for seven years, teaching several Social Studies courses for them. Val is also a member of the U.S. Semiquincentennial Commission celebrating the 250th anniversary of the Declaration of Independence and is honored to participate in this Study on the States!

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Guest Essayist: Samuel Postell

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“The Show-Me State” of Missouri ratified the U.S. Constitution August 10, 1821 making it the twenty-fourth state to join the United States. The Missouri State Constitution currently in use was adopted in 1945.

Missouri’s application for U.S. statehood was not only an important event in the state’s history, but is among one of the most important events in our nation’s history. Before Missouri’s application for statehood, the abolitionist factions of the Union were relatively quiet and the Southern defense of slavery as a “positive good” had not yet begun. After Missouri’s application for statehood, it became clear that slavery would become a national issue that would divide the sections of the Union, perhaps to the point of civil war.

Missouri first applied for statehood in 1817, but Congress did not begin to consider enabling acts to allow the territory to create a state constitution until February of 1819. At the end of the day on February 18, 1819, James Tallmadge introduced his amendment which would spark the controversy between the Northern States and the slaveholding states. Tallmadge proposed an amendment that would free all children born of slaves after Missouri had become a state, as well as free all slaves in the state of Missouri once they had reached the age of 25. Various Northerners, particularly from New York and Pennsylvania, began to see such an amendment as a necessary condition for Missouri to become a state.

The Southerners responded with gusto. They feared that such amendments coming from the national congress infringed on the right of a state to determine its own laws, and they feared that such legislation would upset the balance between free and slave states in Congress. The consequence of this, they believed, would be the ultimate extinction of slavery in the Union. And perhaps they were correct: Representative Livermoore urged the House, just before it voted upon the Tallmadge Amendment, that “An opportunity is now presented, if not to diminish at least to prevent, the growth of a sin that sits heavy on the soul of every one of us.” The House voted to include the Tallmadge amendment in a vote of 79 to 67.

But that was not the last word on the Tallmadge Amendment. Although it had passed the House, it had to be accepted by the Senate which was composed of a majority that was principally opposed to the Federal government meddling with slavery in the territories. Thus, the Senate immediately rejected the Tallmadge amendment as part of the Missouri enabling act. Throughout the rest of the Congressional session, the two houses would deliberate upon the Missouri issue, but neither the Northerns in the House nor the Southerners in the Senate would give way. The Congressional session would end with Thomas Cobb’s admonition to Tallmadge that “the Union will be dissolved. You have kindled a fire which all the waters of the ocean cannot put out, which seas of blood only can extinguish.” Tallmadge merely responded “so be it.”

The deliberation over Missouri not only occupied the House for the months of February through May of 1819, but it took the Congress the remainder of that year and half of the next to sort out the Missouri question. While the Congress was out of session several petitions were generated in Northern states urging their representatives to deny Missouri’s statehood if that entailed the spread of slavery, and some Southern petitions were signed that threatened secession if Congress blocked Missouri. The nation was on the brink of civil war, the representatives of the people were threatening one another in the chamber, and the nation was facing the greatest economic recession that it had yet seen. What was to be done?

As the Speaker of the House, Henry Clay did something that seems counterintuitive: he delayed the Missouri question for the first half of the following Congressional session, and created a committee. He placed a New Yorker who had been involved in the debates over the Tallmadge Amendment at the head of that committee, and he placed a balance of Northerners and Southerners on that committee. Only in that committee could Missouri be spoken of. Clay attempted to stall while the Senate prepared its bill for the House. He wanted to quell the passions of the much larger body of representatives in order that they not evoke civil war throughout the debates that were to come.

Meanwhile, the House of Representatives began to speak of Maine’s admission to statehood. The first day of deliberation upon Maine, Henry Clay left the Speaker’s chair in order to set the stage for debate. He wanted to assure the Northerners that they had much to lose with the debates over Maine if they continued to give the Southerners ultimatums regarding Missouri. If Maine could not be accepted as a state, then the Northerners would lose any opportunity of equaling the Southern representation in the Senate, and this could have long term consequences.

Eventually, the Senate decided to tie Missouri and Maine together as an enabling act, and add an additional proviso excluding slavery from all remaining lands of the Louisiana Purchase north of the 36° 30′ parallel, thanks to Jesse B. Thomas of Illinois. What followed was much heated debate within the House over the bill, eventually leading Clay to organizing a joint committee of representatives in the House and the Senate to deliberate upon the bill. In order to finally pass the bill through the House, Clay had to separate the three bills and pass each individually. Each bill passed by a narrow margin, but what was most important was that the nation averted civil war in the process of accepting two new states.

Henry Clay would thenceforth be known as the “Great Pacificator” for his work in promoting compromise within the House of Representatives. At the end of that session, he would leave the house with a challenge to preserve Union and liberty. He told his colleagues,

“I shall regard (this House) as the great depository of the most important powers of our excellent constitution; as the watchful and faithful centinel of the freedom of the people; as the fairest and truest image of their deliberate will and wishes; and of that branch of government where, if our beloved country shall unhappily be destined to add another to the long list of melancholy examples of the loss of public liberty, we shall witness the last struggles and its expiring throes”

Although the Union had been threatened, and civil war had been evoked, the nation proved its fitness to brave the sirens of civil war through representative deliberation and choice led by selfless compromise.

Sam Postell is a current Graduate Student at the University of Dallas and a former literature teacher at a high school in Dallas Texas. He has two book chapters under publication with the University of Missouri Press, one on the Missouri Compromise, and another on Henry Clay as Speaker of the House. He is currently working on a book on Henry Clay’s Political Thought

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Guest Essayist: Daniel A. Cotter

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Admitted to the Union December 3, 1818, Illinois is the twenty-first state to ratify the U.S. Constitution. Known as “The Prairie State” as well as the “Land of Lincoln,” the Illinois State Constitution adopted in 1970 is the version currently used.  The first state constitution, however, was adopted on August 26, 1818.

Becoming a State

In April 1818, Congress passed a bill, contemplating admitting Illinois as a state if it could show that it had a population of at least 40,000 in the territory.  As my friend, Ann Lousin, notes in an excellent Chicago Daily Law Bulletin column published in August 2018, that was a tall order for the territory to complete, because the territory was well short of the required number set by Congress.  Nonetheless, the territorial governor and associates submitted to Congress that the population of white residents exceeded 40,000, and that part of the process was done.

The Illinois Constitution

Congress required that each new state have a constitution.  Delegates were selected and they met in Kaskaskia, Illinois, thirty-three men gathered at a tavern to draft a constitution.  Borrowing heavily from the Kentucky constitution, where many delegates had come to Illinois from, as well as the constitutions of Ohio and Indiana (two states that were part of the Northwest Territory), a very small group drafted the constitution.  Except for one issue, there are not records of much debate over this constitution to be submitted to Congress.

The one issue that the delegates debated heavily was the question of slavery.  Factions for pro-slavery and abolitionists sought compromise and while most of Illinois was “free soil” the Illinois Salines were permitted to have slavery.  In addition, a compromise was agreed upon, with any slave who was currently in the state remaining a slave, though their children would become free upon reaching adulthood. With this agreed upon as well as the seat of the new state’s government, the constitution was adopted on August 26, 1818. That date is proudly displayed on the Illinois state flag in the center.  The adopted constitution was submitted to Congress and, on December 3, 1818, President James Monroe signed the enabling act that admitted Illinois as the 21st state to the United States.

The initial constitution of Illinois has been amended on three occasions since 1818- in 1848, 1870 and 1970.  The last constitution granted home rule powers for certain municipalities, including the City of Chicago.

The preamble to the Illinois Constitution has a flavor that is definitely familiar, stating:

We, the People of the State of Illinois—grateful to Almighty God for the civil, political and religious liberty which He has permitted us to enjoy and seeking His blessing upon our endeavors—in order to provide for the health, safety and welfare of the people; maintain a representative and orderly government; eliminate poverty and inequality; assure legal, social and economic justice; provide opportunity for the fullest development of the individual; insure domestic tranquility; provide for the common defense; and secure the blessings of freedom and liberty to ourselves and our posterity—do ordain and establish this Constitution for the State of Illinois.

In 1968, the question of whether to hold a constitutional convention was on the ballot, and it passed.  As noted, a big feature of the new constitution that came out of that convention was home rule, which transferred power from the smaller rural communities to the more urban centers.  Ratified on December 15, 1970, Illinois adopted a new, modern constitution, one of the few post-World War II constitutions among the states.  The fourteen articles of the current constitution create the traditional three branches of government.  The 1970 Constitution also includes an extensive Bill of Rights and Article X guarantees a free public education for all Illinois residents.

Conclusion

Illinois became the 21st state to join the United States.  During the Civil War, it contributed the fourth greatest number of men who served in the Union Army.  President Abraham Lincoln, who was born and raised in Kentucky, was president during the Civil War and “The Prairie State” has become known as the “Land of Lincoln” to honor the 16th President of the United States.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. His book, “The Chief Justices,” (April 2019, Twelve Tables Press), is available now. He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

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Guest Essayist: Samuel Postell

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The seventeenth state to enter the Union, known as “The Buckeye State,” Ohio ratified the U.S. Constitution on March 1, 1803. The current Ohio State Constitution in use was adopted in 1851.

The study of state constitutions is perhaps the most important study that Americans can undertake, yet the most neglected. Understanding the constitution of the state within which one holds residence is important for two reasons. First, because understanding the laws closest to oneself equips one to become a citizen in the truest sense, one who participates in the city with his fellow citizens and engages in the community. And second because the state constitutions, in preserving the past while being layered by amendments of the present, reveal the history and development of the American regime.

Ohio’s state constitution is paradigmatic in the latter sense. The Buckeye State was the 17th state to join the Union, and it was accepted to statehood in 1803. The year in which Ohio was accepted to statehood is important insofar as it forms the essential character of the Ohio Constitution: joining a mere 27 years after the nation declared independence, and a mere 14 years after the Federal Constitution’s ratification, it preserves much of what was original to the Union itself. However, the Ohio Constitution, being ratified after the election of 1800, just after the first major shift in party control, gives Ohio an important place in the new notions of politics that developed during Jefferson’s term as president. Jefferson himself referred to the election of 1800 as the “revolution of 1800”, and considered it in many respects more important than the revolution of 1776 because it marked a dedication to a more democratic mode of politics.

Nevertheless, Ohio’s Constitution was decidedly anti-revolutionary. For example, the original 1803 Ohio Constitution was a work of brevity; the entire 1803 Constitution is shorter than “Article VIII: Public Debt and Public Works” which was added in 1851 and amended various times throughout the 21st century. Further, the 1803 Ohio Bill of Rights mirrors the philosophy and form of the constitutions of the original 13 states. For example, the Bill of Rights begins by setting forth the ends of government, emulating the Declaration of Independence: “That all men born equally free and independent, and have certain natural, inherent and unalienable rights… every free republican government, being founded on their sole authority, and organized for the great purpose of protecting their rights and liberties, and securing their independence.” Like other state constitutions, point 3 of the Ohio Bill of Rights aims to protect the “natural and indefeasible right to worship Almighty God according to the dictates of conscience” and asserts

“But religion, morality and knowledge being essentially necessary to good government and the happiness of mankind, schools and the means of instructions shall forever be encouraged by legislative provision not inconsistent with the rights of conscience.”

Thus, Ohio, like other States of the Union at the time, saw establishments such as religious schools absolutely necessary and conducive to free government. Like other states of the Union, the original Ohio Constitution saw religious establishments and public schools dedicated to advancing Christianity as perfectly consistent with separation of church and state. What the state did reject as inconsistent with separation of church and state was coercion, forced attendance to a certain church, and religious tests for office.

In addition, the original Ohio Constitution embraced the republican spirit of the entire country by adopting a structure which empowered the Congress and weakened the governor. The 1803 Ohio Constitution established a bicameral House consisting of a Senate and a House, called the “General Assembly.” Section 1, Article 16 reads “bills may originate in either house, but may be altered, amended or rejected by the other.” Article 2, however, gives the governor of the state no power to alter, amend, or reject legislation. Additionally, the Congress has the power of impeachment. The Governor, on the other hand, only has the power to propose general elections to fill vacancies in the Congress, and he may call a special session, on the condition that he openly declare before the members of Congress the reason for convening them. In other words, the Governor had little to do with the creation of the laws of the state, he merely wielded the power of enforcement.

However, over time the Ohio Constitution has departed drastically from its original form. The most clear departure from the original constitution was the 1912 Ohio Convention. The most striking contrast between the Constitutional Convention held in 1802, and the convention held in 1912, was the national attention that each convention garnered. At the time of Ohio’s original convention, it was widely held as a principle of federalism that the federal government ought to allow people of a territory to craft a constitution for their own governance. By 1912, the understanding of federalism had shifted and all eyes were on the Ohio Convention of 1912. For example, Teddy Roosevelt, William Jennings Bryant, William Howard Taft, and even California’s Governor Hiram Johnson addressed the convention in order to advise it.

The convention assembled to rewrite the constitution, but after much debate they settled on proposing several amendments. In the end 41 were proposed and 33 were accepted and added to the constitution after a special election that allowed the people to vote upon the proposed amendments. Most of these amendments aimed at fixing the constitution because it was believed by many to be “outdated” and “inefficient.” The most important of the amendments accepted were the “line item veto” and the “initiative and referendum.” These and similar reforms were grafted onto many of the original constitutions of the states throughout the progressive era and drastically changed the way in which the people in the states, and therefore the nation, governed itself. Unlike the original constitution which left little room for the enervated governor to operate, the line item veto greatly increased his power by giving him the authority to reject certain parts of a bill passed by the legislature without vetoing the entire bill. Similar amendments providing a line item veto were adopted by 43 of the states throughout the progressive era. However, the initiative and referendum is perhaps the most pronounced change from the original constitution. The initiative and referendum gives the people of the state the power to overturn or even pass laws by popular ballot, entirely circumventing the legislative process.

In short, the changes to the Ohio Constitution mirror the changes of the nation. As Ohio has weakened the legislature and expanded the executive power while affording the power to the people through the initiative and referendum, so has the nation chipped away at the federal legislature and empowered the executive. The progressive era fostered many reforms which sought to make the people more directly participate in their government, and strengthened the executive in order that he represent the will of the people. These changes first took place in states such as Ohio, but slowly began to penetrate the nation and become the new norm. All in all, the original Ohio Constitution differs drastically from the constitution which governs Ohio today, so much so that one may conclude that the state adopted an entirely new form of government in the year 1912.

Sam Postell is a Graduate Student at the University of Dallas and a former literature teacher at a high school in Dallas Texas. He has two book chapters under publication with the University of Missouri Press, one on the Missouri Compromise, and another on Henry Clay as Speaker of the House. He is currently working on a book on Henry Clay’s Political Thought

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Guest Essayist: The Honorable Robin Smith

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Who knew that the land mass of Tennessee was represented at the signing of the Declaration of Independence? Who knew that the geography that has earned the moniker, the Volunteer State, was first governed by another state’s constitution?

That’s right. Tennessee was first part of North Carolina. Looking at the map[i], deduction proves accurate noting the “Overmountain Region” that formed western North Carolina until the area had ample population to seek statehood. America’s sixteenth state at its founding was comprised of a small number of counties that formed the District of Washington in the now northeast portion of Tennessee and an area called Davidson, which included today’s Sumner County, helped form the County of Tennessee in 1788 along with modern-day Montgomery, Stewart, Dickson, Robertson and Cheatham Counties. The District of Washington spawned several other counties, such as Sullivan, Greene and Hawkins. The remaining expanse of Tennessee was identified as “Indian Lands.”[ii] But, the organization of inhabitants in the Appalachians credited to have the first constitutional government west of the mountains, dates back to 1772 with the Watauga Association, a frontier pact, that lasted just a few years but became the basis of the District of Washington of North Carolina.[iii]

It’s now understandable why the Tennessee Historical Magazine of 1915 features a writing entitled, “The Development of the Tennessee Constitution” with the subtitle, “The North Carolina Constitution of 1776” with the first line to read: The constitutional history of Tennessee properly begins with the adoption by the revolutionary congress of North Carolina, in 1776…[iv] The appointed governor of Tennessee immediately following the acceptance of the cessation papers by the U.S. Government in 1790 was William Blount, who served from 1790 until official statehood in 1796 in what was deemed the “Southwest Territory.”

During this time a 4-week convention comprised of 55 delegates was held in Knoxville to establish the first constitution of a new state. Upon completion, the governing document was sent to Philadelphia, home to young America’s seat of governance, for review by the U.S. Congress and ultimately signed by President George Washington giving Tennessee immediate statehood on its day of birth, June 1, 1796. It would be later said by Thomas Jefferson of Tennessee’s Constitution, based on its North Carolina’s parent and Pennsylvania’s, to be “the least imperfect and most republican of the state constitutions” as it featured specifics on rights, taxes and legislative authority.[v]

The first Tennessee Constitution, handwritten in ink, included provisions related to suffrage that awarded the right to vote to men, without reference to color. A foreshadowing of Tennessee’s stance on slavery in the Civil War to come, Article III, Section 1 enumerated that all freemen (white and black) who were twenty-one years of age and owned a freehold or who had resided in the county six months the right to vote. The document also provided that men serving in the state militia had the right to elect their own officers.[vi]

But, the newly formed state, led by its first elected Governor John Sevier, would not provide that same right to women at its founding. But, fear not. True to its independent spirit, the story of women’s suffrage in Tennessee would prove not just important to its own citizens, but historic to all of American women.

Despite states efforts to award suffrage to females beginning in the late 1840s for local and state elections, the same right to vote had eluded them for federal elections. Finally, on May 21, 1919, the U.S. House voted 304-89 to pass an amendment to the U.S. Constitution that featured 39 words that would forever change American politics if thirty-six states, the requirement at the time to amend the U.S. Constitution, voted to support the 19th Amendment. It wasn’t until June 4, a few weeks later, that the U.S. Senate finally followed suit with a 56-25 vote margin. [vii] The effort then ensued to reach that needed thirty-six states to reach the constitutional threshold to amend the U.S. Constitution.

While Wyoming was the first state to award women the right to vote in 1890, the first states to pass the necessary legislation to ratify the U.S. Constitution following Congressional action were Illinois, Wisconsin and Michigan in 1919. As the Woman Suffrage Movement organized, mobilized and energized state legislative leaders with their efforts to pass the needed enabling ratification proposals, the Summer of 1920 shaped up to be a made-for-the-big-screen drama.

Coming down the homestretch to obtain the threshold 36 states for ratification, Delaware’s state body voted in opposition on June 2, 1920. All eyes and efforts turned to Tennessee to obtain the last needed state with hope fading. Suffragists key to the success in Tennessee who worked with their national leader Carrie Chapman Catt were Ann Dallas Dudley of Nashville, Abby Crawford Milton of Chattanooga, and Sue Shelton White of Jackson.[viii]

A special session was called in the summer of 1920 by then Governor Albert H. Roberts, a Democrat seeking re-election in August of the same year. Both the Suffragists and the Anti-Suffragists set up their headquarters at The Hermitage Hotel that featured a frequented watering hole that afforded women access for their lobbying efforts. Adopting roses to don the lapels of legislators to serve as emblems of support or opposition, roses – either yellow or red – became the sign of Tennessee’s War of the Roses.

Quickly passing the Senate Chamber, the battleground was set in the TN House Chamber comprised of 99 members. Men wearing the yellow rose boutonnière were counted as supporters and those sporting the red rose were in the camp of the “Anti’s.” A couple of weeks of motions and parliamentary maneuvers with efforts to table the legislation since defeat was not as simple as anticipated by the majority of Democrats in the chamber, recorded the youngest member of the General Assembly, Harry T. Burn (R-Niota), elected at 22-years-young, voting with the Anti’s while wearing his red rose boutonnière.[ix]

On August 18, 1920, Rep. Harry Burn took the floor of the Tennessee House with a letter in his coat pocket from his mother, Phoebe Ensminger Burn – Febb to her friends. As the votes were cast, the 24-year-old stood, red rose and all, to cast his vote for the yellow rose caucus – he supported women’s suffrage. After a few moments of confusion, House Speaker Seth Walker changed his vote in support to attempt a parliamentary move that would allow subsequent debate and votes. Nevertheless, a stunned crowd watched the momentum shift with little notice.

According to varying accounts, some a bit more dramatic than others, Burn was the recipient of much anger and, tales being tall, was chased up the stairs of the Capitol to find refuge after scurrying out a window, inching along a ledge to safety. Neither historical documents nor interviews with the famed legislator prior to his death in 1977 hold these same details, but the monumental nature of the vote could certainly have generated such high drama.[x]

So, exactly what was written in the seven-page letter that accompanied TN Rep. Harry T. Burn to the House floor on August 18, 1920? His mom had composed a passing notation, squeezed between references to rain and a house and farm purchased by various locals: “Hurray and vote for suffrage and don’t keep them in doubt.” On page six, as the letter seems to draw to a close, Mrs. Febb, a widow declares, “Don’t forget to be a good boy and help Mrs. ‘Thomas Catt’ with her ‘Rats.’ As she [is] the one that put the rat in ‘ratification.’ Ha, no more from mama this time. With lots of love…” The postscript, as any mom will do, was a request for a music selection she wanted her city-going son to pick up to bring home.[xi]

Governor Roberts, formerly opposed to the suffrage amendment, signed the passed legislation into law on August 24, 1920 and transmitted the document to Washington. [xii]

As women look to 2020 to celebrate the Centennial of the Women’s Right to Vote on August 26, the influence of a mother’s love, grassroots activity and yellow roses prove not just a part of history, but historical. Tennessee’s slogan proves true. The Volunteer State, rich with a pioneering spirit and people who’ve been leaders across the years is certainly “America at its best.” From its founding to its future, Tennessee is home to our greatest treasure…her people.

Robin Smith represents the 26th district of Tennessee in the House of Representatives. She chairs the Life and Health Insurance Subcommittee. Before serving for the people of Tennessee, she owned her own business and was the GOP State Chair.

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END NOTES

[i] Photo source: https://commons.wikimedia.org/wiki/File:Map_of_the_southern_states_of_America,_comprehending_Maryland,_Virginia,_Kentucky,_Territory_sth_of_the_Ohio,_North_Carolina,_Tennessee_Governmt.,_South_Carolina,_%26_Georgia_(4584052548).jpg

[ii] https://statelibrary.ncdcr.gov/ghl/genealogy/tn-counties

[iii] https://en.m.wikipedia.org/wiki/Watauga_Association

[iv] https://www.jstor.org/stable/42637325?seq=10#metadata_info_tab_contents

[v] https://sos.tn.gov/products/tennessee-state-constitution

[vi] https://cdm15138.contentdm.oclc.org/digital/collection/tfd/id/421

[vii] https://www.loc.gov/rr/program/bib/ourdocs/19thamendment.html

[viii] https://sos.tn.gov/products/tsla/womens-suffrage-tennessee-and-passage-19th-amendment

[ix] https://teva.contentdm.oclc.org/digital/collection/p15138coll27/id/75/

[x] https://www.nytimes.com/1995/08/17/us/tennessee-journal-one-small-vote-for-a-man-brought-one-giant-leap-for-women.html

[xi] http://cmdc.knoxlib.org/cdm/ref/collection/p265301coll8/id/699

[xii] http://suffrageandthemedia.org/source/tennessee-governors-proclamation-suffrage/

Guest Essayist: William J. Federer

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On March 4, 1791, Vermont was the first state admitted to the Union after the U.S. Constitution was ratified by the original thirteen colonies. The current Vermont State Constitution in use was adopted in 1793

The French fortified Lake Champlain by building Fort Sainte Anne on Isle La Motte in 1666. It is considered the first settlement in what would later become the State of Vermont. In 1690, some Dutch Reformed Protestant settlers arrived in the area.

Colonial wars followed between the French and the British:

-King William’s War, 1689;
-Queen Anne’s War, 1710;
-Father Rale’s War, 1722;
-King George’s War, 1744;
-Father Le Loutre’s War, 1749;
-French and Indian War, 1754.

The British finally expelled all French from Acadia. Many were deported back to other colonies, or back to France, or fled south to the Caribbean and French Louisiana, where the name “acadian” became pronounced “cajun.”

Henry Wadsworth Longfellow wrote of this expulsion in his epic poem “Evangeline.”

Britain’s King granted a Royal Charter in 1679 to the fur trading company — The Hudson Bay Company — giving it monopoly control over such a large area that for a long period of time it was the largest landowner in the world, comprising 15 percent of North American acreage. The Hudson’s Bay Company is the oldest continuously operated commercial corporation in North America.

When the British began encroaching further south, the French built Fort St. Frederic in 1734 on Lake Champlain. When the British began encroaching further south, the French built Fort St. Frederic in 1734 on Lake Champlain. In 1759, during the French and Indian War, British commander Jeffrey Amherst advanced with 11,000 soldiers, forcing the French to abandon Fort St. Frederic. The French moved 15 miles further south and built Fort Carillion at a strategic point where Lake George flows into Lake Champlain.

British commander Jeffrey Amherst captured Fort Carillion and renamed it Fort Ticonderoga. “Ticonderoga” is the Iroquois word meaning “where two waterways meet.” The capture of the Fort Ticonderoga allowed the British to begin crossing into French territory west of the Appalachian Mountains. The Mohawks sided with the British, and killed many of the French survivors.

Part of the former French territory was called “Ver Mont,” French for “Green Mountain.” British Colonies of Massachusetts, New Hampshire and New York tried to lay claim to Vermont.

Massachusetts relinquished its claims, but New Hampshire issued land grants to proprietors, who subdivided it into lots. Some lots were set aside for a missionary organization of the Church of England by the name the Society for the Propagation of the Gospel in Foreign Parts, and some lots were for the first clergyman who would settle in each township.

In 1775, just three weeks after the Revolutionary War Battles of Lexington and Concord, Ethan Allen led 83 Green Mountain Boys of Vermont on a courageous expedition to capture Fort Ticonderoga. In the early morning of MAY 10, 1775, Ethan Allen, accompanied by Colonel Benedict Arnold, made a surprise assault on Fort Ticonderoga. The bewildered British captain asked in whose name such a request was being made. Ethan Allen reportedly shouted: “In the Name of the Great Jehovah and the Continental Congress.” The British surrendered in what was one of America’s first victories of the Revolutionary War.

Three weeks after the capture of Fort Ticonderoga, Harvard President Samuel Langdon told the Massachusetts Provincial Congress, May 31, 1775:

“If God be for us, who can be against us?

..May our land be purged from all its sins!

Then the Lord will be our refuge and our strength, a very present help in trouble, and we will have no reason to be afraid, though thousands of enemies set themselves against us.”

A little over seven months later, 25-year-old Colonel Henry Knox incredibly moved 59 cannons from Fort Ticonderoga over 200 miles across Vermont, New York and New Hampshire to Massachusetts. The cannons were put on a high hill overlooking Boston’s Harbor – Dorchester Heights. This forced British ships to evacuate Boston.

During the Revolution, Vermont not only fought the British but also New York, resulting in Vermont becoming its own independent nation for 14 years, similar to Texas. The people of VERMONT wrote in their original Constitution, 1777:

“Whereas, all government ought to … enable the individuals who compose it, to enjoy their natural rights, and the other blessings which the Author of Existence has bestowed upon man;

and whenever those great ends of government are not obtained, the people have a right, by common consent, to change it, and take such measures as to them may appear necessary to promote their safety and happiness …

And whereas … the King of Great Britain … continues to carry on, with unabated vengeance, a most cruel and unjust war against them; employing therein, not only the troops of Great Britain, but foreign mercenaries, savages and slaves,

for the avowed purpose of reducing them to a total and abject submission to the despotic domination of the British parliament, with many other acts of tyranny …

Therefore, it is absolutely necessary, for the welfare and safety of the inhabitants of this State, that it should be, henceforth, a free and independent State …

We the representatives of the freemen of Vermont … confessing the goodness of the Great Governor of the Universe, (who alone, knows to what degree of earthly happiness, mankind may attain, by perfecting the arts of government,)

in permitting the people of this State … to form for themselves, such just rules as they shall think best for governing their future society.”

VERMONT’s 1786 Constitution stated:

“That the people have a right to freedom of speech, and of writing and publishing their sentiments; therefore, the freedom of the press ought not be restrained.

That the people have a right to bear arms for the defense of themselves and the State;

and, as standing armies, in the time of peace, are dangerous to liberty, they ought not to be kept up …

And each member, before he takes his seat, shall make and subscribe the following declaration, viz.

‘I ____ do believe in one God, the Creator and Governor of the Universe, the Rewarder of the good and Punisher of the wicked. And I do acknowledge the Scriptures of the Old and New Testament to be given by Divine inspiration, and own and profess the Protestant religion.’

VERMONT’s 1790 Constitution stated:

“All persons have a natural and unalienable right, to worship Almighty God, according to the dictates of their own consciences and understandings, as in their opinion shall be regulated by the word of God…

No authority can, or ought to be vested in, or assumed by, any power whatever, that shall in any case interfere with, or in any manner control the rights of conscience …

Nevertheless, every sect or denomination of Christians ought to observe the Sabbath or Lord’s Day, and keep up some sort of religious worship, which to them shall seem most agreeable to the revealed Will of God.”

The United States Government accepted Vermont as the 14th State of the United States in 1791, being approved by President George Washington. Denominations grew in numbers, most notably Congregationalists, Episcopalians and Baptists, followed by Methodists, Presbyterians, Free Will Baptists and Quakers. In the early 1800’s, there were also Unitarians, Universalists, and unconventional sects, such as Millerites and Perfectionists.

Beginning in 1820 with the Second Great Awakening, revivalism swept Vermont and academies with religious affiliations were founded. The anti-slavery sentiment was strong in Vermont. In the 1840’s the Catholic Church increased with French Canadians and Irish immigrants. In the late 1800’s, Judaism, Welsh Presbyterianism, Swedish Lutheranism and Greek Orthodoxy made a presence in Vermont. In 2006, the Pew Religious Landscape Survey listed VERMONT as:

-11 percent Evangelical Protestant
-23 percent Mainline Protestant
-0.5 percent Black Protestant
-29 percent Catholic
<0.5 percent Orthodox
<0.5 percent Other Christian
1.0 percent Mormon
<0.5 percent Jehovah’s Witnesses
1.0 percent Jewish
<0.5 percent Muslim
1.0 percent Buddhist
<0.5 percent Hindu
<0.5 percent Other World Religions
7 percent Other Faiths
26 percent Unaffiliated
<0.5 percent No Answer

The State of Vermont put a statue of Ethan Allen in the U.S. Capitol’s Statuary Hall. On January 9, 1872, Senator Henry Bowen Anthony gave a speech in the U.S. Capital’s Statuary Hall (Washington: F & J. Rives & Geo. A. Bailey, 1872):

“My colleague has well said that it was a happy idea to convert the old Hall of the House of Representatives into the Pantheon of America.

The idea originated with my distinguished friend who sits upon my right, (Senator Justin Smith Morrill of VERMONT,) then a leading member of the House …

It was indeed a happy idea to assemble in the Capitol the silent effigies of the men who have made the annals of the nation illustrious …

I anticipate … every State shall have sent her contribution … of heroes and patriots …

Vermont shall send us the stalwart form of that hero (Ethan Allen) who thundered at the gates of Ticonderoga ‘in the name of the Continental Congress and the Great Jehovah!”

Excerpt reprinted with permission from: The American Minute with Bill Federer, “How America was Almost New France? Jacques Cartier, Champlain, Fort Ticonderoga, Vermont, Ethan Allen” https://myemail.constantcontact.com/How-America-was-almost-NEW-FRANCE–Jacques-Cartier–Champlain–Fort-Ticonderoga–Vermont–Ethan-Allen.html?soid=1108762609255&aid=ct2wE5T0eKc

William J. Federer is a nationally known speaker and best-selling author of many books including “America’s God and Country Encyclopedia of Quotations” which has sold over a half-million copies. He is president of Amerisearch.net, a publishing company dedicated to researching America’s Christian heritage. Bill’s American Minute radio feature is broadcast daily across America and via Internet. His Faith in History television program airs on the TCT Network on stations across America and via DIRECTV. A former U.S. Congressional Candidate, Bill has appeared on CSPAN, FOXNews, MSNBC, ABC, FamilyNet, The Eric Metaxas Show, Starnes Country on FOX Nation, Coral Ridge Hour among many others; numerous television documentaries, and radio programs.

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Guest Essayist: Tony Williams

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Ratified in 1781, the Articles of Confederation had significant problems. The Congress was unicameral, and the national government did not have an independent executive or judiciary. The states were sovereign, and the national government did not have the power to tax or regulate commerce. It was essentially just a league of friendship.

Yet, the national government under the Articles did achieve some notable successes. The nation made peace with the British in 1783 and secured its independence. Moreover, the Confederation Congress established policies for the settlement of land in the West and principles for the integration of new states into the national Union, weak though it was.

Several states had claims to western lands from royal land grants as British colonies and relinquished those claims. As a result, the Confederation Congress was able to formalize the process by which territory could become states once enough Americans populated the area.

Congress passed the 1784 Ordinance written by congressman Thomas Jefferson. It would have made ten states out of the Northwest Territory, and each territory was eligible for statehood when its population reached 200,000. More importantly, it laid down important principles for the addition of new states to the Union. First, the new states would be admitted as equals to the original thirteen states. Second, the residents of the new states were also guaranteed republican self-government. Significantly, Jefferson proposed to ban slavery in all western territories, but it failed by a single vote.

The Land Ordinance of 1785 authorized the survey of the Northwest Territory and the land was to be sold at a dollar an acre to encourage settlement and raise revenue for the national government.

The Northwest Ordinance of 1787 was passed by the Confederation Congress while the Constitutional Convention was meeting. It authorized three to five states in the territory and set up a specific path to statehood in which 5,000 settlers could elect an assembly and 60,000 residents could adopt a constitution and apply for statehood.

The principles of state equality in the national Union and the guarantee of republican governments were prominent again. The purpose was “for extending the fundamental principles of civil and religious liberty, which form the basis whereon these republics, their laws and constitutions, are erected.”

In addition, the Northwest Ordinance protected the rights of the accused including the right to a trial by jury. Freedom of religion was protected, and education to promote civic virtue was key to republican government. “Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” Slavery was banned in the territory as the framers of this document tried to restrict it to the South and put it on the road to ultimate extinction. Primogeniture was banned and equality in the distribution of property instituted to prevent an aristocracy from arising on American soil. The Northwest Ordinance was strongly bent toward fundamental liberties, republican government, and national Union.

The Constitution restated these principles yet again in Article IV, section 3 when it asserted that new states may be admitted into the Union and that Congress “shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States. In section 4, “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion.” The Constitution added the principle of federalism to the relationship of the national government to the states.

Rapid westward expansion over the next century built a continental republic rooted in a national Union of equal republican states. However, the expansion was marred by the expansion of slavery and contention about the constitutional authority of Congress to regulate territories as in the Dred Scott (1857) case.

In his Farewell Address, President George Washington expressed the importance of national Union:

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.

President Abraham Lincoln concurred with Washington that the national Union and the republican principle were core ideas of the American Creed: “Fourscore and seven years ago our fathers brought forth, on this continent, a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal.”

Tony Williams is a Constituting America Fellow and a Senior Teaching Fellow at the Bill of Rights Institute. He is the author of six books including the newly-published Hamilton: An American Biography.

 

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Aside from the federal Constitution, North Carolina has had three state constitutions since separation from Great Britain. One in 1776, one in 1868, and one in 1971.

Although different, the North Carolina constitutions have similar passages, and it is evident how elements of the 1776 constitution were incorporated into the 1868 constitution and how many parts of the 1868 constitution were incorporated into the 1971 constitution. Each version has a Declaration of Rights, albeit the number of declarations is different. All three, however, include a reminder that the study of history can affect current policy: “a frequent recurrence to fundamental principles is absolutely necessary to preserve the blessings of liberty.”

The 1971 State Constitution of North Carolina is the governing document of Tar Heels.

During the past several presidential elections, North Carolina has been described as a “purple” or battleground state. As more people move to The Old North State for work or retirement, pundits are often unsure if the state will lean to the left or to the right in an upcoming election.

North Carolina has been a battleground state and a determining factor in national debates many times. The 1787-89 debates over ratifying the federal Constitution offer an example of North Carolina’s longstanding role in our country’s political history.

During the debates, the state’s population was divided over the necessity of a U.S. Constitution and what became known as the Bill of Rights. North Carolina refused to ratify the constitution without the promise of a Bill of Rights, fearing that a federal government would become too powerful without it. The Bill of Rights would protect citizens’ individual liberties from government.

After the framers drafted the constitution at the 1787 Philadelphia Convention, the document was submitted to respective state ratification conventions for approval. In order for the new union to be formed, nine states had to ratify the Constitution. Nine states did so and, soon after, two more gave approval, for a total of 11. North Carolina was not one of these states. North Carolina became one of only two states to hold out on ratifying the constitution and joining the union.

In North Carolina, there was much debate between the Federalists and the Anti-Federalists over whether or not the state should ratify the constitution. James Iredell, using the pseudonym Marcus, explained the Constitution’s meaning and pointed out the necessity of its adoption. Tar Heel Federalists, such as Iredell and William Davie, believed the “general government” needed more “energy,” such as more authority to tax and be able to have an army to defend the fledgling nation.

A strong Anti-Federalist sentiment, however, remained in North Carolina. Many from the Tar Heel state remembered the Parliamentary abuses before the Revolutionary War and questioned giving more authority to what would become the federal government. Anti-Federalists, Willie Jones and Judge Samuel Spencer, questioned handing any more power over from the individuals and the states to the general government.

Unlike other states, there were two state ratification conventions in North Carolina. One was in Hillsborough (1788) and the other in Fayetteville (1789). Many historians consider North Carolina’s ratification convention minutes to be the most revealing and balanced regarding the debate between Federalists and Anti-Federalists.

In most states, Federalists paid for transcribers, and many times convention minutes give the impression of erudite Federalists engaging Anti-Federalist ignorance; the Hillsborough minutes instead reveal a sophisticated exchange among delegates with opposing beliefs.The Hillsborough Convention offered opportunities for leading Federalists and Anti-Federalists to put forth their arguments.

Iredell, a key federalist who had gained widespread respect during the American Revolution for challenging William Blackstone’s ideas regarding parliamentary sovereignty, had been declaring the necessity of the document. He showcased great oratorical skill and answered many Anti-federal questions concerning the nature of the Constitution and the threat it made regarding individual liberty. He championed the document as a protector of rights because it incorporated rights into the document by limiting the central government’s power.

Willie Jones led the Anti-Federalists; however, Samuel Spencer became their spokesman. Anti-Federalists distrusted the central government and believed states’ rights best protected individual liberties. After debating for 11 days, it became clear the Constitution would not be ratified in North Carolina until a Bill of Rights was added. By a vote of 184 to 83, North Carolina decided not to ratify or reject the Constitution and provided a list of rights and suggested amendments for Americans. Many call the Hillsborough Convention “the great refusal.”

In subsequent months, George Washington had been elected President of the United States and debate continued not only in North Carolina but also in other states regarding the necessity of the Bill of Rights. After being assured that a declaration of rights would be added to the Constitution, in November 1789 North Carolina ratified the Constitution by a vote of 195 to 77 at the Fayetteville Convention. The Old North State finally had joined the new union.

North Carolina’s prominent influence over the Bill of Rights and structure of our Constitution is highlighted in Howard Chandler Christy’s famous painting of the assembly at Independence Hall in Philadelphia. The painting is on a 20 x 30 foot canvas. Washington is the commanding figure, standing on the platform, behind the desk. Benjamin Franklin is a prominent figure, too, although sitting down. Alexander Hamilton is depicted, leaning forward as Franklin lends an ear to the junior statesman’s opinion — something Hamilton was willing to share to whomever may listen. The South Carolina delegation, including Charles Pinckney and John Rutledge, are also prominent while standing at the back of Independence Hall, with outstretched arms, indicating they are ready to be the next to sign the document.

So, who is signing the document in that massive portrait that now hangs in the east stairway of the Capitol building? Well, it is North Carolinian Richard Dobbs Spaight. Standing behind him is another Tar Heel, William Blount. The last member of the North Carolina delegation to sign the Constitution is stepping up on the platform — Hugh Williamson.

Often overlooked in histories regarding the founding, the North Carolina delegation is front and center in Christy’s portrait, showing the Old North State’s vital role in the framework of our nation’s Constitution. North Carolina’s heated political debate and strong dissent contributed significantly to ensuring that Americans would have a Bill of Rights.

Information courtesy of www.northcarolinahistory.org, a project of the John Locke Foundation, and Anna Manning of the John Locke Foundation

Anna Manning serves as Marketing and Operations Specialist at the John Locke Foundation. She works with the Vice President of Operations and Vice President of Marketing and Communications to facilitate day to day operations and develop strategic marketing plans for social media and fundraising. Previously, she worked as a legal research intern for the John Locke Foundation. Prior to that, Anna interned in Governor McCrory’s Department of Administration with the North Carolina Commission on Volunteerism and Community Service. Anna has a Bachelor of Arts in Political Science from North Carolina State University and is currently working on a Master of Public Administration from UNC Chapel Hill. In her free time, Anna likes to travel, hunt, and hang out with her dog.

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Guest Essayist: Kyle A. Scott

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Last of the thirteen original states to ratify the U.S. Constitution, Rhode Island was admitted to the Union May 29, 1790. The Rhode Island State Constitution in current use was adopted in 1986.

Rhode Island is known to school children outside of the Ocean State only for its size. One should not be deceived by its diminutive size and think it inconsequential in the nation’s history. Space does not permit a complete history of the state, but an overview of its involvement during the ratification of the U.S. Constitution is enough to justify it as being a power player in our nation’s politics.

Around 1781 Rhode Island began carrying the moniker of “Rogue Island” for its opposition to commonly accepted measures in the Second Continental Congress. Under the Articles of Confederation unanimity of the former colonies was required for the Confederation to take action. Rhode Island was known for casting the lone dissenting vote in many circumstances that prevented action from being taken.

Although, as the first colony to renounce allegiance to King George III on May 4, 1776—two months before the Declaration of Independence was adopted by the Continental Congress—the other former colonies should not have been surprised that a state willing to lead the way in throwing off the yoke of its colonial oppressors would be willing to go against popular sentiment during and after the fight for independence.

The rebellious streak was put on full display as it once again lived up to its moniker as Rogue Island when it was the only state to boycott the Philadelphia Convention in the summer of 1787. The product of that convention was the U.S. Constitution that still governs us today. Rhode Island was so opposed to overturning the Articles of Confederation, or any move that may threaten state sovereignty, that it simply refused to take part. However, Rhode Island had—at least somewhat—overvalued its importance to the process.

Article VII of the U.S. Constitution stipulates that only 9 out of 13 states were required for ratification. On June 21, 1788 New Hampshire became the ninth state to ratify thus putting the new constitution into effect. However, three of the largest and most powerful states—Virginia, New York and North Carolina—had not yet ratified which meant the nation was still not solidified. But with Virginia ratifying on June 25 and New York on July 26 of 1788, the first Congress convened on March 4, 1789 nearly seven months before North Carolina ratified and more than a year before tiny Rhode Island would be the final state to ratify. Once a Bill of Rights was proposed it would not be long before North Carolina would agree to enter the Union as its primary opposition was based on a lack of clearly defined rights in the Constitution. Rhode Island, on the other hand, had a broad base of opposition.

Rhode Island was not motivated by a single group or ideology. It wanted guarantees that it would have control over its own monetary policy. It had pursued inflationary policy during and after the war that entailed printing money to pay off its war debts. It feared that under a national structure its currency would be devalued and the state would be saddled with excessive war debts thus hobbling its economic and social well-being.

The fear of losing control over its monetary policy was consistent with its general concern for the growth of national power. Furthermore, the large Quaker population was appalled by the allowance of the importation of slaves within the new Constitution, even if it was for a limited time.

Eventually, however, the commercial interests of the state won out when the Senate passed a bill prohibiting trade between the member states of the Union and Rhode Island. The mercantilists in Providence and Newport were able to sustain a winning coalition in May of 1790 to ratify the constitution by a narrow margin of 34-32. This was its twelfth attempt at ratification with the first attempt losing soundly by a vote of 10-1.

By the time Rhode Island had ratified, the Bill of Rights had already been voted out of Congress and sent to the states for ratification with nine states ratifying before Rhode Island was seated in the House of Representatives. Therefore, Rhode Island’s lists of eighteen human rights and twenty-one suggested amendments cannot be said to have had a profound effect over our understanding of the original Bill of Rights even though it was not until the eleventh state, Virginia, on December 15, 1791, ratified that the Bill of Rights became part of the Constitution.

What the history of Rhode Island reminds us is that the states that formed the Union understood themselves to be acting on behalf of their citizens and the state government. It was thirteen individual states who formed the Union and not the people of those states. The Union did not transform the people into a single-collective, but rather the people were citizens of their states and the states acted on behalf of their citizens at the national forum. This may seem radical in light of how most people view themselves today, but at the time they would have thought our modern construction as radical and a severe departure from the Spirit of 1776 that rebelled against a distant, centralized governing body that limited self-rule. The Spirit of 1776 also saw the former colonies declaring themselves independent individually rather than as a collective. The actions of the colonies preceded the collective Declaration of Independence. A righteous act of independence had begun with Rhode Island and the nation solidified only when it became the last of the original thirteen to join the union.

Kyle Scott, PhD, MBA serves on the Board of Trustees for the Lone Star College System and teaches political science at the University of Houston and is an affiliated scholar with the Baylor College of Medicine’s Center for Health Policy and Medical Ethics. Kyle has authored over 70 op-eds, dozens of academic articles and five books, the most recent of which is The Limits of Politics: Making the Case for Literature in Political Analysis. He can be reached at kyle.a.scott@hotmail.com or on Twitter: @kanthonyscott 

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New York – July 26, 1788

Eleventh of the thirteen original states to ratify the U.S. Constitution, New York was admitted to the Union July 26, 1788, one month and a day after Virginia became the 10th state and is known as “The Empire State” (apparently based on its wealth and resources).  The current New York State Constitution was adopted in 1894, but its first was adopted on April 20, 1777.

Constitutional Convention

New York sent only three delegates to the Constitutional Convention in Philadelphia- Alexander Hamilton, John Lansing, Jr., and Robert Yates.  Only Hamilton signed the Constitution in September 1787.  Like Virginia, New York was a large, well populated, wealth state, and was important to the future of the nation.  At the time, New York was the fifth largest state by population but already an immensely important commercial participant.  After extended debate, New York ratified by a slim three vote margin, 30-27, becoming the 11th state admitted to the Union.  Upon ratification, New York sent a long, detailed ratification message, with a declaration of rights and suggested changes and modifications to the Constitution, but with approval based on an understanding “that the amendments which shall have been proposed to the said Constitution will receive an early and mature consideration.”   At the New York Convention, the Anti-Federalists were led by Governor George Clinton, and the Federalists by Hamilton.  Anti-Federalists wanted a Bill of Rights and wanted states to prevail over federal encroachments feared by the new Constitution.  When the New York Convention convened, Anti-Federalists had an overwhelming majority.

The New York Convention convened in mid-June 1788, and began debating, with a close eye on developments in Virginia.  If Virginia had rejected the U.S. Constitution, New York might have done the same.  Hamilton asked Madison to send message to New York informing the Empire State of the vote in Virginia. That dispatch arrived in Poughkeepsie, New York on July 2, 1788  That letter turned the two-thirds Anti-Federalist convention into a narrow margin of ratification, with the request and recommendation that a number of amendments be made to the Constitution.  New York made such amendment recommendations similar to those of Virginia.  In an unusual move, the New York Convention sent a circular letter to the states that called for a  second general convention to consider such amendments.

John Jay, who wrote a handful of The Federalist Papers, but would have written more except for his illness, was influential at the New York Convention. While he did not attend the Constitutional Convention, Jay would become an important national leader of the infant nation, appointed by President George Washington in 1789 as the first Chief Justice of the Supreme Court of the United States.  He would not remain in that position long, returning to New York to become Governor.  Jay also helped to negotiate peace with England and, in 1794, was appointed special envoy to seek peace with Great Britain.  Jay’s Treaty, as it became known, brought temporary peace.

The New York Constitution

Immediately following the Declaration of Independence, a Convention assembled in White Plains, New York on July 10, 1776.  Due to the Revolutionary War and George Washington and the Continental Army’s crushing defeats in New York and New Jersey, the convention adjourned and reconvened over the next nine months, culminating in its adoption on April 20, 1777. The primary drafters of this original New York Constitution were John Jay, Robert Livingston , and Gouverneur Morris.   The new constitution had a bicameral legislature and a strong executive branch.

In New York, slavery was permitted and legal until 1827.  The New York Constitution has had several constitutional conventions, with the current New York Constitution having been ratified at the New York state election in 1894 in three parts.  While nine Constitutional Conventions have been held in New York State, the state has had only four de novo constitutions- 1777, 1821, 1846, and 1894.

Conclusion

Like the 10th state, Virginia, while New York’s ratification was not required under the new Constitution for there to be a United States, had the vote gone the other way, the United States may have been for naught before they began.  The Empire State showed its wealth of wisdom in ratifying the United States and becoming the 11th state in a fledgling nation.  Had New York insisted on its voluminous amendments to the draft U.S. Constitution or that a Bill of Rights be passed with any ratification, and four votes had gone the other way, we might well have never moved to fifty states. Thankfully, we will never know.  But New York was extremely influential in the Bill of Rights being considered, including the powerful 10th Amendment, which provides: “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.”  With the 9th Amendment, the intent was to limit the powers of the federal government.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. His book, “The Chief Justices,” (April 2019, Twelve Tables Press), is available now. He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

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Guest Essayist: Steve Armstrong

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Connecticut is called the “Constitution State”, largely because of the Fundamental Orders, which were written by the Connecticut Colony Council in 1639.  Some have argued that this is the first constitution (a few historians say in the entire world) that empowers the citizens of a state to govern themselves.  Where other American colonies in the 1600s and early 1700s were largely governed by representatives from Great Britain, citizens of Connecticut practiced a form of self-government.  The Fundamental Orders also outlined individual rights that were given to all Connecticut citizens.

Other historians maintain that the purpose of the Fundamental Orders was merely to improve on models of government that had been developed in other colonies, including Massachusetts.  The Fundamental Orders limited the power of the Governor and statewide magistrates, and somewhat expanded the right of males to vote.  These historians argue that the Fundamental Orders are very different from an actual governing document.

King Charles II issued an official charter to Connecticut in 1662.  This charter did not have a major impact on political actions in Connecticut.  Charles’s successor, James II, wanted to control all of New England and in 1687 sent representatives to Connecticut to gain more political influence over the colony.  The King’s representatives demanded that government officials return the charter issued by Charles II.  According to rumor, the charter was hidden in an oak tree so that it could not be retrieved.

Government in Connecticut was relatively stable from the seventeenth through the early nineteenth century.  Governors and other leaders came from the same set of elite families called the “Standing Order.”  Governors were re-elected, oftentimes more than once.  In addition, the Congregational Church was the “official” church of Connecticut. Any new town had to have a Congregational church and a minister; Connecticut citizens also had to pay taxes to support the operations of the Congregational Church.  A General Assembly existed, but the Standing Order held the real social and political power in Connecticut.  In the first years of the new nation, almost all members of the Standing Order were members of the Federalist Party.

In the first years of the nineteenth century, a level of political and social discontent developed in Connecticut.  Non-Congregationalists were increasingly upset by the “official” position of the Congregational Church in Connecticut.  Farmers were being pressured by high taxes and several years of poor harvests.  The Republican Party of Thomas Jefferson began to gain popularity in the state; by 1807, roughly 1/3 of the members of the lower house of the General Assembly were Republicans.  Federalists opposed the War of 1812 (at the Hartford Convention of 1812-1813, New England Federalists came together to discuss their opposition to the war and to discuss appropriate measures to oppose the war; Federalists were accused of being traitors as the war became more popular after Andrew Jackson’s victory at the Battle of New Orleans).

A new political party developed in Connecticut called the Toleration Party. The major goals of the party were to unite all of those opposed to the status quo political, religious and social structure in Connecticut and especially to reduce the importance of the Congregational Church in the state.  In 1816, the Toleration Party won control of the lower house of the general assembly and in 1817 a member of the party, Oliver Wolcott, son of a former Standing Order governor, was elected to the same position.  Both the assembly and Governor Wolcott called for a constitutional convention which took place in 1818.

The new Connecticut constitution, eventually ratified by Connecticut citizens by a narrow margin, outlined in detail the rights that all Connecticut citizens should have.  The constitution created a system of almost universal white male suffrage.  It created a system of three branches of government with an independent judiciary (previously decisions of Connecticut’s Supreme Court could be appealed to the General Assembly).  Most importantly, the Congregational church ceased to be the official “state” church of Connecticut. All citizens of the state were given the right to practice the religion of the their choice, and no more tax dollars would go to support the Congregational Church.  According to Connecticut State Historian Walter Woodward, the real victors of the constitutional changes were the Connecticut citizens tired of the lock on political power held by the Standing Order.

Many of the provisions of the 1818 Constitution lasted through the 20st century.  However, one issue that gained attention was representation in the lower house of the Connecticut assembly.  Each Connecticut town or city had equal representative in this body. Connecticut’s major cities had the same number of representatives as the smallest towns in the state.  A constitutional convention was held in 1902 to reapportion representation in the General Assembly; the voters of the state rejected the proposal on reapportionment made by that body.

The same issue became more acute in the mid-1960s when federal courts ruled that representation in the lower house of the Connecticut General Assembly (and in other states as well) violated “one man one vote” decisions handed down by the United States Supreme Court.  Federal courts mandated that Connecticut was going have to reapportion its system of representation.  A constitutional convention was convened in 1965, with 42 Republican and 42 Democratic delegates.

The constitutional convention reapportioned membership in both the Connecticut Senate and House of Representatives. The previous system giving each town and city equal representation was completely abandoned.  The new constitution gave Connecticut voters the opportunity to call for a constitutional convention every twenty years. Mandatory party-lever voting was also stopped.  Connecticut voters approved the 1965 constitutional changes by a large margin.

Connecticut has been able to avoid the violent upheavals that have accompanied political changes in other states and regions. Major conferences were held and articles were written in Connecticut last year on the reasons for and results of the Constitution of 1818.  Connecticut is often called the “Land of Steady Habits,” and the system of local control established by the Fundamental Orders of 1639 as still a fundamental feature of the belief-system in Connecticut today.

Stephen Armstrong serves as the Connecticut Board of Education’s Social Studies Consultant and an adjunct instructor in the history department at Central Connecticut State University. Prior service includes that of social studies department supervisor in the West Hartford, Connecticut public schools; past president of the National Council for the Social Studies; and past president of the Connecticut Council for the Social Studies, the Connecticut Committee for the Promotion of History, and the New England History Teachers Association. A resident of  lives in South Windsor, Connecticut, Armstrong has presented workshops on the use of popular music in the social studies classroom and led numerous travel trips for teachers and students. He has presented workshops at the Rock and Roll Hall of Fame and Bethel Woods Museum for the Arts located on the site of the original Woodstock Music Festival.   

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On May 15, 1776, the fifth Virginia Convention told its delegates to the Continental Congress in Philadelphia to “be instructed to propose to that respectable body to declare the United Colonies free and independent states, absolved from all allegiance to, or dependence upon, the crown or parliament of Great Britain.”

On the same day, the Congress adopted recommended to the assemblies and popular conventions in the colonies 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.”

John Adams called this measure “independence itself.” Adams added a radical preamble for self-government that “every kind of authority under the said crown should be totally suppressed, and all the powers of government exerted under the authority of the people of the colonies.”

The Virginia Convention followed Congress’ exhortation to adopt a new constitution and appointed a committee to draft it, and a Declaration of Rights. The constitution was the framework of government. The declaration was, in the words of Edmund Randolph, “In all the revolutions of time, of human opinion, and of government, a perpetual standard…around which the people might rally and by a notorious record be forever admonished to be watchful, firm, and virtuous.”

The convention adopted the Virginia Declaration of Rights on June 13. George Mason was its primary draftsman. He began with a stunning assertion of natural rights.

“That all men are by nature equally free and independent and have certain inherent rights, of which…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.”

The declaration was deeply influenced by the thinking of John Locke. It stated that “all power was vested in” the sovereign people, and the representative government was established to protect their rights. When it became destructive of these ends, the majority had the “indubitable, inalienable, and indefeasible” right to alter or abolish it. Its influence on the Declaration of Independence was unmistakable.

The declaration included several core principles fundamental to the American experiment in liberty: free elections, separation of powers, trial by jury, rights of the accused. The freedom of the press was called “one of the greatest bulwarks of liberty, and can never be restrained but by despotic governments.” Finally, the declaration protected freedom of conscience as a natural right. “All men are equally entitled to the free exercise of religion, according to the dictates of conscience,” it asserted.

In Philadelphia, Thomas Jefferson was busy with the work of drafting the Declaration of Independence and regretted not being part of the Virginia Convention. He drafted a constitution for the convention, but submitted it too late for it to be considered by the delegates.

On June 29, the convention adopted a constitution guided by revolutionary principles. The different branches of government were separated and consisted of a bicameral General Assembly, an executive, and judiciary. The House of Delegates was the most representative of the people and were elected annually. The two houses of the legislature voted for the governor and curtailed the power of the executive who was elected annually and could not serve more than three terms consecutively. The principles of 1776 and great suspicion of executive power because of the experience under the king and his royal governors underpinned the weakening of executive power.

The Virginia Constitution was one of the first modern constitutions and represented the republican and revolutionary principles of 1776. The state constitutions created republican governments and helped shape the experiences and principles that led to the Constitutional Convention in 1787.

Tony Williams is a Constituting America Fellow and a Senior Teaching Fellow at the Bill of Rights Institute. He is the author of six books including the newly-published Hamilton: An American Biography.

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On June 25, 1788, “Old Dominion” as Virginia is known, became the tenth of the thirteen original states to ratify the U.S. Constitution, admitting it to the Union June 25, 1788. The Virginia State Constitution in current use was adopted in 1971, with the original Virginia Constitution adopted in 1776.  Despite the U.S. Constitution requiring that only 9 of the 13 colonies ratify it for it to become effective, given the importance of Virginia to the new nation, had it voted down the U.S. Constitution, the future of the United States might well be in doubt.

The nickname, “Old Dominion,” likely derives from Virginia being the first of the overseas dominions of the kings and queens of England.  Virginia also is known as the Mother of Presidents and the Mother of States.  Eight Virginia natives have held the presidency, including four of the first five- George Washington, Thomas Jefferson, James Madison, and James Monroe.

On the third day of the fall session of the Virginia legislature in 1787, the Virginia House approved a convention to consider ratification of the proposed United States Constitution.  The Virginia legislature strongly debated whether to adopt or reject the document as it was submitted, or to condition any approval upon certain amendments and revisions.  John Marshall proposed a resolution that won the day, “that a Convention should be called and that the new Constitution should be laid before them for their free and ample discussion.”  The Senate followed slowly, and on January 8, 1788, a law passed calling for a state convention.

The Virginia Convention of 1788 commenced on June 2, 1788.  The delegates arriving in Richmond believed that the fate of the Constitution hung in the balance with how Virginia decided.  Even so, upon arrival at the Convention, many members had not seen the Constitution until they arrived at the Virginia Convention.  While the Virginia convention ensued, New Hampshire became the ninth state to ratify the Constitution and it became effective.  At the time of the Virginia Convention, a healthy majority of Virginians were opposed to the concept of a strong national government contemplated by the Constitution and the Virginia Convention began with that view prevalent amongst the delegates.  The Nation was watching closely how the important Commonwealth of Virginia decided, for “she also was the most important State in the Confederation in population and, at that time, in resources.”

Delegates included a veritable “who’s who” of delegates, including John Marshall, along with Governor Edmund Randolph, James Madison, George Mason, James Monroe, and Patrick Henry. On June 24, 1788, Delegate George Wythe moved the Virginia Convention to ratify the Constitution.  Henry arose for a final great speech of his life, arguing against ratification without amendments. The proposal to add amendments, many of which became the Bill of Rights, failed to be a condition of ratification, but would prove to be valuable guidance when Congress met in 1789. After further debate, on June 26, 1788, the Virginia Convention voted to ratify the Constitution by the slim margin of 89-79.  This slim margin would not have been possible had eight members of the Convention not voted against their constituents’ directives, and two ignored the instructions given them.  Virginia effectively would be the only convention where both sides of the debate were fully vetted and discussed.  The Virginia delegation argued both broad principles and minor details of the document approved in Philadelphia.

With that, the new nation could breathe easy, as its largest colony and most influential was on board.  As noted, it would see four of the first five presidents hail from Virginia.

The Virginia Constitution

Before the Declaration of Independence was made, Virginia adopted its state Constitution on June 29, 1776, and its document would be of major impact when the new nation turned to creating a Constitution of its own.  Mason, who had a large role in the drafting of the Constitution in Philadelphia, and who was one of three delegates still in Philadelphia in September who did not sign the Constitution, was one of the main drafters of  the 1776 Virginia Constitution.  The other was Madison, who is considered by many to be the Father of the Constitution for his work in connection with the Annapolis Convention, the Bill of Rights and the Constitutional Convention.  Madison would take his learnings from Virginia a decade later when he helped design the United States Constitution.

The 1776 Virginia Constitution included a bicameral legislature, the governor was the executive and there was a judicial branch.  In addition, the Virginia Constitution had an accompanying Virginia Declaration of Rights, which Mason mostly wrote, that guaranteed certain human rights and freedoms that would be the model for the Bill of Rights introduced at the first Congress of the new nation under the ratified United States Constitution.

Conclusion

While the ratification of Virginia was not required under the new Constitution for there to be a United States, had the vote gone the other way, the United States may have been for naught before they began.  Old Dominion showed its leadership and ratified the U.S. Constitution and the rest is history.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. His book, “The Chief Justices,” (April 2019, Twelve Tables Press), is available now. He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

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Guest Essayist: The Honorable Bill O’Brien

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New Hampshire has a glorious history of national firsts.

While the Sons of Liberty gathered around a tree in Boston before the Revolution, the glory of New Hampshire was that in 1772 we had the Pine Tree Riot.  Three years before Paul Revere’s midnight ride, the Pine Tree Rioters in Hillsborough County rebelled against paying the British King’s taxes on trees.  Then the rioters’ neighbors added insult to royal injury by refusing the governor’s order to come out as a militia and quell the rioters who had taken to tarring and feathering the king’s agents.

In a similar fashion, before the Minutemen fought the British redcoats in Concord and Lexington in the Spring of 1775, the King’s army was subject to ongoing harassment and attack in New Hampshire.  As early as 1757, the early day contributors to New Hampshire’s continuing libertarian tendencies opposed British troop recruitment in the town of Brentwood.

This tension grew over the years before the Revolution and finally led to what should be recognized as the first armed conflict of the Revolution.  On December 14, 1774 the indefatigable Paul Revere brought alarming news north from Boston that the King’s government was sending troops and was going to forbid the import of arms into America.  In response, that afternoon 350 New Hampshire men attacked the royal fort of William and Mary in New Castle on the coast near Portsmouth.

Under fire from the troops defending the fort, these New Hampshire patriots captured the fort and its garrison, took down the British colors, seized most of the gunpowder and departed.  When the royal governor the next day regarrisoned the fort and ordered the return of the gunpowder, the insurgents went back to Fort William and Mary and took the remaining gunpowder, plus 16 cannons and all the muskets.

But it was not only in pre-revolutionary rebellious behavior that New Hampshire set a national example.  It has also come to lead the nation in many important aspects of state governance.

In 1916, clean-government New Hampshire set an example for the other states by establishing a presidential delegate selection primary over backroom choice of national convention delegates. This delegate selection primary turned into a direct presidential candidate selection primary in 1952, a move that has caused many states to now have their own primaries and voter caucuses.  New Hampshire’s reform has led other states to replace their own backroom deals for choosing presidents in favor of a transparent process relying on voter selection.

While this electoral reform has extended across our country, New Hampshire’s primary remains an important quadrennial feature of presidential politics.  In every presidential election cycle, for now almost 70 years, New Hampshire has ensured that its initial presidential primary remains the First-in-the-Nation Presidential Primary.  As a result, while some states might be known for making such things as ethanol for our cars and bacon for our breakfasts, “New Hampshire makes presidents.”[1]

New Hampshire has many other firsts of national distinction and many of those include what it has brought to the development of constitutional law in America.  It could not be other for the first of the American colonies to declare its independence and have the first state constitution.

On January 5, 1776, the then provincial Congress of New Hampshire recognized that with the royal governor and British troops having been chased out of the state, the time had come to adopt a state constitution derived not from royal prerogative or British parliamentary grant, but rather from the free suffrage of the people.[2]  In doing so and by means of that very first constitution, New Hampshire became the first of the 13 original colonies to declare its independence from the Great Britain – six months before the Declaration of Independence was signed.[3]

Perhaps setting the stage for constitutional brevity in the later federal, and some of other state constitutions, this first-in-the-nation state constitution was only two and a half pages long.  Unlike most other state constitutions, however, and perhaps reflecting its origins in a legislative body comprised mostly of the members of a provincial assembly that the royal governor had attempted to discharge for countenancing an attack on the King’s fort and other wrongs, the 1776 New Hampshire constitution established the legislature as the superior branch of government.

Under this “First-in-the-Nation” state constitution a chief executive officer was referenced, but that office titled as “President” was merely the leader of a council chosen by a House of Representatives.  This council, and therefore the President, was not only chosen by the House of Representatives, but together the House and council formed the Legislature.

This 1776 enactment of what came to be a New Hampshire wartime constitution further provided that all other government officials were to be appointed directly or indirectly by the Legislature, except for certain county officials.  Otherwise only the members of the House of Representatives were directly elected by the people.

Thus, under the 1776 New Hampshire constitution, the office of the chief executive was not fundamentally separate from the Legislature.  Most all elements of the state government derived their existence and office holders at the sufferance of the Legislature.  In the first state constitution in America there were no co-equal branches of government.  There was no balance of power.  The Legislature was supreme.[4]

Based on this 1776 grant of state constitutional authority in New Hampshire, Meshech Weare was chosen as the first President of New Hampshire and he served in this capacity until the end of the Revolution.  Further reflecting the judiciary’s junior role in the government,[5] Weare was also appointed to head the state’s highest court, the “Superior Court of Judicature.”  He served there from 1776 to 1782. During that time, the executive branch and the judicial branch in New Hampshire had the same person as their chief officers. Nonetheless, the real power existed in the Legislature.[6]

Following our War of Independence, New Hampshire took up the task of replacing the wartime constitution.  The resulting New Hampshire state constitution was adopted in 1784, five years before the federal constitution.  As amended, this constitution continues as the basic law for the State of New Hampshire today and is second only to Massachusetts in being the state constitution with the longest tenure in the country.

The 1784 New Hampshire Constitution continued to name the Chief Executive as President.[7]  It did, however, make that position a separately elected office.  In doing so, it established the executive administration as a separate branch of state government along with a legislature consisting of a Senate and House of Representatives.

The 1776 council that had been the senate was not lost now that there was a separately designated senate.  Rather, the 1784 Constitution shifted the council from being part of the Legislature to becoming an independent body within the executive branch.  There it was placed to serve as a check on the Chief Executive.  In fact, each of the Chief Executive and the elected, five-member Council could veto the acts of the other.

Thus, the drafters of the 1784 Constitution overcame their pre-revolution distrust of governors, who had been royally appointed, and recognized the necessity of having a chief executive.  Having done so, however, they followed what was the lead of the 1780 Massachusetts constitution and put in place a substantial check on the chief executives’ authority.  The check they developed was so substantial, in fact, that it could deadlock the chief executive.

Similar to this capability of the Chief Executive and the Council to stalemate each other, when establishing the Legislature (the “General Court”), the 1784 Constitution included the same type of checks and balance for the Senate and the House of Representatives each of which is to have a strong veto right over the other.[8] Moreover, the chief executive was given an overridable veto over the Senate and House acting together.  Thus, in a choice that continues to underlie our federal and state constitutions today, the drafters of New Hampshire’s constitution favored liberty over efficiency.

Even as the New Hampshire constitution continues through the third century following its adoption, its essential checks and balances have not been changed.  As a device to avoid executive or legislative tyranny, this approach certainly served as an example for those in other states, and the federal government, who later brought the concept of “checks and balances” to their basic laws.

One noteworthy additional provision in the New Hampshire Constitution is an article that expressly recognizes the right of revolution.[9]  Though, of course, recognition of the existence of a right of revolution is fundamental to the American national experience, [10] although a provision of that nature did not find its way by language or concept into the later federal constitution or, for that matter, many other state constitutions.

Nonetheless, as the New Hampshire drafters of a state constitution adopted shortly after the Revolution understood, the existence of an inalienable right of revolution underlay both the New Hampshire and American declarations of independence.  They no doubt knew that their recognition of its existence was based on ancient examples existing only in faded recollections,[11] and therefore it was important to expressly ensure that as the Revolution faded into distant memory, government did not forget the lessons so painfully taught to the British oppressors.

So, forcefully recognizing this right in the New Hampshire constitution’s bill of rights was almost unique in American constitutional law.  It is one thing, however, to recognize this right as a justification when being a perpetrator of a rebellion and quite another when drafting a fundamental law that is intended to have permanence.  Yet, the drafters of the New Hampshire 1784 Constitution, enacted mere months after the adoption in Congress of the Treaty of Paris, that brought the suffering and horrors of the Revolution to an official end, had the courage to do so.  They wanted it preserved in the State’s memory, that in the face of arbitrary governmental power and oppression, revolution is not just an option, but should be repeated.

Perhaps not with such forceful language, this courage to express the right to further conflict and rebellion was demonstrated not in many, but certainly in some subsequent state constitutional enactments.  Included among those were the constitutions of Kentucky, Pennsylvania, Tennessee, North Carolina and Texas.  Indeed, the North Carolina constitutional language tracked much of what is found on this concept in New Hampshire’s constitution.[12]  This right of revolution has additionally found expression in the Universal Declaration of Human Rights.[13]  While limited in expression elsewhere, the right of revolution is a necessary, inescapable and, in New Hampshire, enshrined human right.

This first constitutional expression in New Hampshire of the logic that all who are oppressed have the right to revolt to regain their liberty has at least continued, if not promoted, the concept of universal freedom.  In this, perhaps as much as its protection of the retail politics enabled by its presidential primary and continuing to point the way to checks and balances of governmental power, New Hampshire has been at the forefront of the states.

New Hampshire has truly been First-in-the-Nation in more ways than one.

Bill O’Brien served for five terms in the New Hampshire House of Representatives where he was Speaker from 2010 to 2012.

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[1] McCaughey, Betsey, Democracy at Its Best (Washington Times, April 24, 2015) (https://www.washingtontimes.com/news/2015/apr/24/betsy-mccaughey-democracy-its-best/; accessed March 17, 2019).

[2] See January 5, 1776 NH Constitution at http://avalon.law.yale.edu/18th_century/nh09.asp (accessed March 15, 2019) (“WE, the members of the Congress of New Hampshire, chosen and appointed by the free suffrages of the people of said colony, and authorized and empowered by them to meet together, and use such means and pursue such measures as we should judge best for the public good; and in particular to establish some form of government, . . .”);  See also New Hampshire General Court, Documents and Records Relating to the State of New Hampshire. pages 36 and 37  (E. A. Jenks, state printer 1874) (accessed March 15, 2019 at https://www.library.unh.edu/find/digital/object/propapers%3A0008).

[3] And months before the first independence declarations claimed for other of the American colonies, in particular North Carolina and Rhode Island.

[4] Thereafter, other states continued with the concept of legislative supremacy over other branches.  See, e.g., 2006 article on North Carolina constitutional history by John V. Orth, accessed on March 17, 2019 at https://www.ncpedia.org/government/nc-constitution-history.

[5] This subservient role of the judiciary continued on in the 1784 constitution until amendments as late as 1966 were intended to make the Judiciary in some respects a co-equal branch of government.  N.H. CONST. pt. 2, art. 72-a (November 16, 1966).

[6] The primacy of the Legislature was often graphically illustrated in the 19th century when the Legislature, having become dissatisfied with the then current state of Judiciary, dissolved the then existing courts and reconstituted others to serve as the judiciary.  See Wines, Michael, Judges Say Throw Out the Map.  Lawmakers Say Throw Out the Judges (NY Times, February 14, 2018) (https://www.nytimes.com/2018/02/14/us/pennsylvania-gerrymandering-courts.html; accessed March 17, 2019) (“As far back as the 1800s, New Hampshire’s legislature disbanded the state’s Supreme Court five times, said Bill Raftery, a senior analyst at the National Center for State Courts in Williamsburg, Va. . . .”).

[7] The title later became “Governor.” N.H. CONST. pt. 2, art. 41(as amended, 1792).

[8]The Supreme Legislative Power, within this State, shall be vested in the Senate and House of Representatives, each of which shall have a negative on the other.” N.H. CONST. pt. I, art. 2 (June 2, 1784).

[9] “… [W]henever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.” N.H. CONST. pt. I, art. 10 (June 2, 1784).

[10]We hold these truths to be self-evident… –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government,”  Quoting, The Declaration of Independence (July 4, 1776).

[11] See, e.g., Declaration of Arbroath (April 6, 1320) (“for, as long as but a hundred of us remain alive, never will we on any conditions be brought under English rule. It is in truth not for glory, nor riches, nor honours that we are fighting, but for freedom – for that alone, which no honest man gives up but with life itself”), quoting in part Sallust, The Conspiracy of Catiline (circa 50-35 BC).

[12] See generally, Wikipedia, Right of Revolution, https://en.wikipedia.org/wiki/Right_of_revolution#cite_note-37.

[13]Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by rule of law.” The Universal Declaration of Human Rights, UN General Assembly resolution 217 A (December 10, 1948) (http://www.un.org/en/universal-declaration-human-rights/index.html; accessed March 17, 2019).

Guest Essayist: Charles F. Vaughan

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The eighth state to ratify the U.S. Constitution, South Carolina, was admitted to the United States May 23, 1788. It was also the first state to secede from the Union. The current South Carolina State Constitution was adopted in 1896.

Albemarle Point, located on the Ashley River, was established in 1670 as the first permanent English settlement in South Carolina. It was under the supervision of the eight lords proprietors who had been granted “Carolana” by King Charles II. Ten years later, settlers moved across the river to the present site of Charleston.

From its very beginning, South Carolina had a constitution in the form of the Fundamental Constitutions of Carolina. Although never fully ratified by the colonists and eventually jettisoned in 1698, it did shape political power and land distribution in the colony. Co-authored by John Locke and Lord Anthony Ashley Cooper, 1st Earl of Shaftesbury, it was notable for its religious tolerance, providing right to worship to religious dissenters of Christianity, Jews, and Native Americans. It offered sanctuary for groups seeking refuge from religious persecution in Europe. The constitution promoted slavery and an aristocracy which could wield absolute power over their enslaved Africans. This set the stage for the next 200 years.

South Carolina became a Royal Colony in 1729. The colony experienced very minimal royal control, apart from the appointments of Royal Governors. A period of salutary neglect on the part of the British Crown enabled government to evolve in such a way that served the needs of the lowcountry elite. The House of Commons Assembly and Privy Council were modeled after the English Parliament.

Since the colonial period, South Carolina has had seven constitutions, dating from 1776, 1778, 1790, 1861, 1865, 1868, and 1895. The Constitution of 1776 became necessary after Governor Loyd Campbell fled the colony over tensions between the colonies and England. Approved by the Provincial Congress of South Carolina, the Constitution incorporated previous royal instructions but originated from the people of South Carolina. This plan of government was to last until the disputes with Great Britain could be settled. It established a bicameral legislative branch, the General Assembly, with members of the lower house elected by the people, and members of the upper house elected by the lower house. In place of a governor, there was a president, selected by both houses. The president had veto power and could only serve one term in office. The upper house also elected a vice president and a chief justice. The judicial branch remained unchanged from the colonial system.

There existed an unequal distribution of power in the new government, with the upper house dominated by lowcountry elite even though the majority of the white population resided in the upcountry. Representation in the lower house was shared a little more equally between the lowcountry and upcountry.

The Constitution of 1778 created strict property requirements for the franchise. White men had to possess a significant amount of property to vote, and had to own even more property to be allowed to run for political office. In fact, these property requirements were so high that 90 percent of all white adults were prevented from running for political office. The office of president became the governor, whose election remained purview of the General Assembly. The upper house, renamed the South Carolina Senate, was popularly elected. Representation in the legislature was reapportioned so that the upcountry had forty percent of the seats. In 1786 the General Assembly relocated the capital from Charleston to Columbia as a way to express increased statewide unity. The following year the General Assembly banned the importation of new slaves.

On May 23, 1788, South Carolina ratified the United States Constitution. This necessitated a new constitution. In June 1790, a convention of elected delegates from across the state unanimously ratified the Constitution of 1790, which served the state until 1861. Lowcountry elite continued its dominance of the legislature as seats were apportioned on the basis of wealth. The governor, elected by the General Assembly, had no veto power. Voting was limited to white males who had to meet strict property requirements. The General Assembly made all laws and elected all holders of major offices, including governor, presidential electors, U.S. senators, and many local officials. The General Assembly adhered to the notion of aristocratic stability- control by white males who owned land and slaves. This cohesion of political and economic thought would eventually lead many to support secession.

Sectional tensions in the 1830s, 1840s, and 1850s finally came to a head in November, 1860 with the election of Abraham Lincoln. On December 20, 1860, a special Secession Convention approved the Ordinance of Secession. The 1790 constitution was amended to note the withdrawal from the federal Union. The Constitution of 1861 continued the election of the governor by the General Assembly and did not change much from the 1790 constitution.

At the conclusion of the Civil War, South Carolina had to adopt a new constitution to be readmitted into the Union. The Constitution of 1865 preserved many values of the planter elite. It moved closer to a balance between the lowcountry and upcountry in the Senate. The House of Representatives was apportioned based on white population and taxed land value. Legislators continued to select U.S. senators and presidential electors. The governor was popularly elected to a four-year term and was given veto power. The civil rights of former enslaved African Americans were ill defined.  Passage of strict Black Codes designed to regulate former slaves and election to Congress of former Confederate heroes resulted in Congress ordering the creation of a new constitution.

Congressional Reconstruction led to the Constitutional Convention of 1868. Many whites refused to participate as African American men were allowed to vote for the first time. This constitution is the only one to be submitted directly to the voters for approval. Congress ratified it on April 16, 1868.

It was a revolutionary constitution for South Carolina. Representation in the House was based solely on population. The governor continued to be popularly elected. For the first time, it provided for public education open to all races, granted some rights to women, and replaced districts with counties. Property ownership as a qualification to run for public office was abolished. Race as a limit on male suffrage and Black Codes in the 1865 constitution were also abolished.

Following a series of economic downturns in the state, the Constitution of 1898 was adopted by convention and not submitted to the people in referendum. It instituted Jim Crow laws aimed at disenfranchising the state’s African American population while protecting  the state’s poor, illiterate whites. A poll tax was instituted, and men who paid property tax and were able to write and read the state constitution could vote. Local registrars determined who could vote. The poll tax was abolished in 1951 and the Voting Rights Act of 1965 terminated unregulated local voter registration.

The General Assembly maintained its supremacy over the governor and local politics. To dilute the power of the governor, the executive department was split into many local boards and state agencies. The governor was limited to a two-year term with possibility of one reelection.

By the 1960s, the constitution had been amended over 300 times. Throughout the decade, a committee studied the 1895 constitution. In 1970 voters approved changes to five articles. Work continues to reform the constitution and state government. More recent changes have made the executive and judicial branches more independent from the legislative branch and local governments that are more responsive to the people than the General Assembly.

Dr. Charles F. Vaughan us a National Board Certified social studies teacher. A 24-year classroom veteran, Dr. Vaughan currently teaches World Geography and Teacher Cadet at AC Flora High School in Columbia, SC. He earned his Doctor of Education in Curriculum and Instruction from the University of South Carolina. His dissertation, “Official social studies curriculum standards: An analysis of Southern political, cultural, and historical contexts” is a critical analysis of “official knowledge” contained within state social studies standards. 

Guest Essayist: Kyle A. Scott

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Thomas Jefferson, and all those who agree with and find inspiration in the Declaration of Independence, support secession. There is no denying that the Declaration was a statement of secession “When in the course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another…”. Thomas Jefferson stayed true to this point when writing in the Kentucky Resolution (1798) that “the several states who formed that instrument (the U.S. Constitution), being sovereign and independent, have the unquestionable right to judge of its infraction…” Secession is an inherent right in governing bodies and the states themselves ought to have sovereignty over the decision to secede.

The Declaration of Independence was a solidification of prior state action rather than a moment of instigation. Beginning in 1775 the former colonies began declaring themselves states rather than colonies and writing their own constitutions with New Hampshire becoming the first in January 1776 followed by Virginia, South Carolina, New Jersey. Rhode Island renounced its allegiance to Britain and revised its charter a full two months before the Declaration of Independence was adopted. These independent states joined together in an act of secession as they were seeking to dissolve the political bands that tied them to Great Britain. Each colony that fought against the crown was a secessionist regime. Secession is a central part of this nation’s founding sown at the time of its founding.

At the time of the nation’s founding the states considered themselves to be sovereign entities that could compact together to address common needs, and it could reverse that decision if the common governing body no longer fulfilled its duty. Sovereignty was not relinquished. This is not only documented, but procedurally it is reinforced in that each state needed to ratify the primary governing documents before those documents took effect within that state’s legal jurisdiction. For instance, the U.S. Constitution was drafted by a committee in Philadelphia, it was then sent to the states to ratify individually. And while the Constitution only required nine of the thirteen states to be put into effect, only those states that had ratified it would be part of the Union. Those who had not ratified could not take part in the new government. This is a continuation of the political practice started with the Articles of Confederation in which the Second Continental Congress drafted and approved the Articles but then sent them to each state for independent ratification. The same is true of the Declaration of Independence—no state was forced against its will to fight the British once a majority of states accepted the Declaration; rather, it required unanimous consent from each state in Congress.

Secessionist thought is often commingled with the U.S. Civil War, but one of the first moves toward secession after the formation of the United States was undertaken by the New England Federalist Party between 1814-1815 in reaction to the War of 1812 at what is known as the Hartford Convention. Lest we forget that Tennessee was formed through secession from North Carolina, Kentucky from Virginia, and Maine from Massachusetts. Secession is neither uniquely American with Sweden seceding from Norway, Belgium from the Dutch, and Eritrea from Ethiopia to name only a few. But for most Americans our understanding of secession is clouded by the war between the states and the subsequent Supreme Court decision of Texas v White (1869) that declared secession unconstitutional despite historical and normative claims to the contrary.

Almost without exception a discussion of secession introduces the issue of slavery. But that is a product of an undisciplined mind that cannot separate two mutually exclusive ideas rather than a fact of reality. Secession is about self-determination; it is the ultimate weapon against tyrannical government. As Jefferson writes, “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,–That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government…” A people unable to dissolve political bonds are a people who no longer have the ability to preserve the rights endowed to them by their Creator but have instead given all authority to some distant governing body. This would be antithetical to every precedent-setting document one could read at the time of the founding. To say that states gave up their right to secede when they ratified the Constitution is to not understand the founders as they understood themselves. A people committed to freedom and liberty would not so willingly give up the very thing that allowed them to be free in the first place.

Kyle Scott, PhD, MBA serves on the Board of Trustees for the Lone Star College System and teaches political science at the University of Houston and is an affiliated scholar with the Baylor College of Medicine’s Center for Health Policy and Medical Ethics. Kyle has authored over 70 op-eds, dozens of academic articles and five books, the most recent of which is The Limits of Politics: Making the Case for Literature in Political Analysis. He can be reached at kyle.a.scott@hotmail.com or on Twitter: @kanthonyscott 

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Guest Essayist: Gary Porter

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Maryland is the seventh state admitted to the United States, ratifying the U.S. Constitution April 28, 1788. The current Maryland State Constitution in use was adopted in 1867.

Maryland was the seventh state to ratify the U.S. Constitution, on April 28, 1788. Two months later the U.S. Constitution went into effect with New Hampshire’s ratification on June 21. A study of the “Old Line State” (we’ll see where that appellation comes from in a moment) provides a convenient entry point to address several different constitutional topics; but first a little history:

It is August 27, 1776; the British have mounted their anticipated invasion of Long Island, New York. British General William Howe commits 20,000 of his best troops to the fight, including 8,000 Hessians, against approximately 6,000 ill-equipped and ill-experienced Americans (20,000 to 6,000; hardly seems a fair fight). Howe splits his forces across three fronts and executes a daring nighttime flanking maneuver that utterly surprises the American forces. The Americans are soon routed from their defensive lines and forced to retreat onto fortified Brooklyn Heights. To buy time for the withdrawal, Washington orders General William Stirling, commanding two units of the 1st Delaware Regiment as well as four companies from the 1st Maryland Regiment, to hold his line on the Gowanus Road. The 1st Maryland Regiment (part of the “Maryland Line”) is under the temporary command of Major Mordecai Gist (the unit’s commander, Colonel William Smallwood, is attending court martial duty in the city). The British attack up the Gowanus Road consists of 2,000 troops under the command of General James Grant. The Marylanders, soon reduced to less than 400 men (The Immortal 400)[1] are ordered to hold the line near Vechte-Cortelyou house, a stone building commanding the strategic road and a bridge, the only escape route across the Gowanus Salt Marsh. Not only do Gist’s men hold off the British, they make six amazing counterattacks before being finally forced to scatter and make their own escape back to American lines. Only a handful of the Maryland men are successful. Watching from Brooklyn Heights, General Washington turns to General Israel Putnam and states: ‘Good God, what brave fellows I must this day lose.” The Maryland 1st Infantry will go down in history as “The Old Line,” giving Maryland its claim as “The Old Line State.”[2] Historian, Thomas Field, writing his 1869 book “The Battle of Long Island,” called the stand of the Marylanders “an hour more precious to liberty than any other in history.”[3] As we will see, Maryland will go on to make other important contributions to the establishment of the American union.

In 1632, Lord George Calvert, a convert to Catholicism, was granted a charter by King Charles I to establish “The Province of Maryland.”[4] Actual settlement began two years later, first along the Chesapeake Bay and then proceeding slowly but inexorably westward. Calvert envisioned a colony where religious tolerance would prevail, especially towards his fellow Catholics. Accordingly, in 1649, the Maryland General Assembly passed an Act Concerning Religion which made it a crime to harass a fellow citizen of the colony over their religious preferences. Maryland would eventually gain the largest concentration of Catholics of any of the colonies, to include, in 1715, one John Porter, immigrant ancestor of the writer of this essay. Family legend holds that John was “asked” to leave England after composing and singing publicly a song not entirely complementary of the new reigning monarch: George I of Hanover, brought over from Germany the previous year to take the English throne.

With its moderate weather, 4,000 miles of shoreline and a fine port at Baltimore, Maryland grew to nearly 250,000 inhabitants by 1776.[5] Maryland’s current boundaries were solidified following the settlement of a long-running dispute with Pennsylvania and completion, in 1767, of the Mason-Dixon Line, a project to which two sons of the aforementioned immigrant John Porter allegedly contributed as the surveying team reached the westernmost parts of the state. It would not be until 1820, however, that the term “Mason-Dixon Line” came into common usage. The Missouri Compromise used the term to define the boundary between slave territory and free territory (remember this, we encounter it again).

While no major battles of the Revolution were fought within the state (that would change with the War of 1812 and the Civil War), Maryland was an active participant in the events leading up to the Revolution. In 1776, its delegates, Charles Carroll, Samuel Chase, Thomas Stone, William Paca, signed the Declaration of Independence (with Carroll being the only Catholic to sign). “Charles Carroll of Carrollton” had been an early proponent of independence from the mother country, writing often in the Maryland Gazette under the pseudonym “First Citizen,” and serving on various Committees of Correspondence. A devout man, in a November 4, 1800, letter to James McHenry (of Fort McHenry fame) Carroll wrote: “Without morals a republic cannot subsist any length of time; they therefore who are decrying the Christian religion, whose morality is so sublime and pure…are undermining the solid foundation of morals, the best security for the duration of free governments.” When he died in 1832, Carroll was the last surviving signer of the Declaration and acquired the distinction (dying at 95 years of age) of being the oldest lived Founding Father.

Like other states, Marylanders were bitterly divided as the Revolutionary War loomed; many Loyalists in the state refused to support the Revolution, and saw their lands and estates confiscated as a result.

Responding to a resolution of Congress of May 10, 1776, Maryland’s provincial congress recommended formation of a convention to form a new constitution to replace its royal charter. Fifty-three delegates assembled on August 14, and completed their work on November 8. While the new constitution kept most of the features of government intact, the state’s property qualification for suffrage was lowered from thirty to five British pounds, greatly expanding the electorate. Ironically, following the example set by Virginia earlier that year, on November 8, 1776, the convention put their new constitution into effect by voice vote, without bothering to submit the document to Maryland’s newly expanded electorate.

“Baltimore Town” served as the temporary capital of the confederated states from December 1776 to February 1777, while Philadelphia was occupied by the British. Towards the end of the war, from November 1783, to June 1784, Annapolis, briefly hosted the confederation government, and it was in the Old Senate Chamber of the Maryland State House in Annapolis on December 23, 1783, that General George Washington famously resigned his commission as commander-in-chief of the Continental Army. It was there also, on January 14, 1784, that the Treaty of Paris was ratified, officially ending the Revolutionary War.

Maryland was the last of the thirteen states to ratify the Articles of Confederation, on March 1, 1781, and then only when France threatened to withdraw its treaty-guaranteed protection of the Chesapeake Bay. Maryland had been insisting that the territory north of the Ohio River be ceded to the confederation government by the several states which maintained conflicting claims on it. Virginia’s government agreed to cede its claim to the land but demanded that the claims of Maryland’s land speculators be declared void. Maryland objected, but faced with France’s threat, they ratified the Articles. The event was celebrated across the colonies with fireworks, bonfires and the ringing of church bells.

In September 1786, Maryland played host to the “Annapolis Convention” which produced the famous call for a “Grand Convention,” to take place in Philadelphia the following May. On September 17, 1787, Daniel Carroll (a cousin of Charles Carroll of Carrollton), Daniel Jenifer and James McHenry (of Fort McHenry fame) would share the honor of signing the new constitution for their state.

On April 28, 1788, after a short, five day discussion, Maryland became the seventh state to ratify the U.S. Constitution, by a vote of 63–11.

According to the U.S. Constitution (Article 1, Section 8, Clause 17), the District of Columbia was to be formed from land donated by “particular States.” That turned out to be both Maryland and Virginia; and each state ceded the required land in 1790. But in 1846, with the capitol by now well established, but on only the north side of the Potomac River, Congress returned Virginia’s portion, leaving the District completely within Maryland’s former boundaries.

In August 1814, the state experienced, first-hand, a new war with Britain. In the Battle of Bladensburg,[6] which saw the first appearance on a U.S. battlefield of a sitting U.S. President (second-term-President James Madison). British troops easily pushed back a hastily formed composite force of militia and regular troops and continued their march on “Washington City.” The following month, the unsuccessful British siege of Fort McHenry provided the backdrop for the composition of our National Anthem by Maryland native Francis Scott Key.

Forty-five years later, Maryland pondered whether to join the growing list of seceding states south of the now famous Mason-Dixon Line. The state had effectively legalized slavery more than one hundred years before (in 1752) when it prohibited the manumission of slaves, and many citizens were eager to join the confederacy. An early vote of the legislature, which might have gone for secession, was stifled by President Abraham Lincoln’s declaration of martial law and his unconstitutional suspension of Habeas Corpus. When the Maryland legislature finally took up the matter, they voted 53-13 to remain in the Union. While many today claim that the (inaccurately named) Civil War[7] settled the idea of secession, the issue, as we will see later, is still very much alive.

The first fatalities of the Civil War (called in the South, more accurately, the War for Southern Independence) occurred during riots which took place in Baltimore on April 18 and 19, 1861. Union troops moving from one train station to another to continue their journey southward to protect Washington, D.C. were confronted by an angry and armed mob. The troops, set upon with “bricks, paving stones, and pistols,” fired on the crowd. When the smoke cleared, four soldiers and twelve civilians had been killed. Small skirmishes between citizens and police occurred throughout the city for the next month.

Determined to keep a route through Maryland open for the transport of troops and supplies from the northern states, on April 27, President Lincoln authorized General Winfield Scott to suspend the writ of habeas corpus near any military supply line between Philadelphia and Washington “if the public safety required it.”

On September 17, 1862, Confederate forces were defeated at Antietam, just west of Frederick, Maryland (hometown of the then Chief Justice Roger Taney). Remembered as the “Single Bloodiest Day of the Civil War,” the Battle of Antietam (known in the South as the Battle of Sharpsburg) caused more than 23,000 casualties.

A week later, as a result of continued unrest, particularly in Maryland but elsewhere in the Union as well. Lincoln issued a proclamation stating that “all Rebels and Insurgents, their aiders and abettors within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice, affording aid and comfort to Rebels against the authority of United States, shall be subject to martial law and liable to trial and punishment by Courts Martial or Military Commission.” Further “That the Writ of Habeas Corpus is suspended in respect to all persons arrested, or who are now, or hereafter during the rebellion shall be, imprisoned in any fort, camp, arsenal, military prison, or other place of confinement by any military authority or by the sentence of any Court Martial or Military Commission.”[8] (Emphasis added)

Lincoln later explained his actions in a letter to Albert G. Hodges on April 4, 1864, by stating: “I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution, through the preservation of the nation.”[9]

In July 1864, the little-known Battle of Monocacy was also fought on Maryland soil, again near Frederick.

The 1864 Maryland Constitution, ratified in October, freed the state’s slaves a year before ratification of the 13th Amendment.[10] On April 14, 1865, Marylander John Wilkes Booth assassinated President Lincoln.

Today’s Maryland government is based on its 1867 Constitution, the last of four. The 1776 constitution was followed by a second in 1851, and a third in 1864. At approximately 47,000 words, today’s Maryland Constitution is much longer than the average length of a U.S. state constitution (about 26,000 words). By comparison, the United States Constitution, including amendments, is only about 8,700 words long.

When compared with the U.S. Bill of Rights, Maryland’s 1776 Constitution lacked specific protections for:

  • Freedom of Speech and Freedom of Assembly (U.S. 1st Amendment)
  • A Right to Keep and Bear Arms (U.S. 2nd Note: Maryland is one of the few states still lacking the equivalent of the Federal Second Amendment)
  • Right to a Grand Jury when Life/Limb is imperiled, protection against double jeopardy and protection of private property against government taking without compensation (all found in the U.S. 5th Amendment)
  • Protection of unenumerated rights (U.S. 9th Amendment, this was added in the 1851 Constitution)
  • Reservation of non-delegated powers to the states/people (U.S. 10th Amendment, this was added in the 1867 Constitution)

Conversely, Maryland’s Declaration of Rights today contains the following protections and principles not found in the U.S. Bill of Rights:

  • A relief from taxation for all “paupers.” (still there!)
  • Protection of the common law of England. (still there!)
  • A right to trial by jury (this right is assumed by the Constitution but only secured for certain classes of citizens).
  • Juries in criminal cases are declared to be judges of law as well as fact (jury nullification, added in the 1867 Constitution, see below).
  • A statement that “all government of right originates from the people, is founded in compact only, and instituted solely for the good of the whole.”
  • A statement that “the people of the State ought to have the sole and exclusive right of regulating the internal government and police thereof.”
  • A statement that “all persons invested with the legislative or executive powers of government are the trustees of the public, and, as such, accountable for their conduct.”
  • A statement that “every man, having property in, a common interest with, and an attachment to the community, ought to have a right of suffrage” (whether U.S. citizen or not?).
  • A statement that “the legislative, executive and judicial powers of government, ought to be forever separate and distinct from each other.”
  • A statement that no power of suspending laws, or the execution of laws, unless by or derived from the Legislature, ought to be exercised or allowed.
  • A statement that “no aid, charge, tax, fee, or fees, ought to be set, rated, or levied, under any presence, without consent of the Legislature.” (No taxation without representation!)
  • A statement that “the levying taxes by the poll is grievous and oppressive.” (I.e. no poll taxes will be allowed)

We should take a moment here to note the uniqueness of Maryland securing a right of jury nullification in its constitution. To my knowledge it is the only U.S. state to do so. In 2002, South Dakota voters rejected a state constitutional amendment to permit criminal defendants to argue in favor of jury nullification; and in 2012, New Hampshire passed a law explicitly allowing defense attorneys to inform juries about their right of jury nullification, only to have the New Hampshire Supreme Court effectively nullify the law.[11]

The ability of a jury to refuse to return a guilty verdict because it feels the underlying law to be unjust has a rich history going back to at least Magna Carta (1215), if not before — the famous trial of William Penn being the perfect example.[12] In this country, the practice was common from before the Revolutionary War to beyond 1850 when rampant jury nullification of the Fugitive Slave Act occurred throughout the North. The Supreme Court has never taken up the issue but Associate Justice Sonya Sotomayer apparently views it favorably.[13]

The primary impetus for the 1851 Constitution was a desire to reapportion the Maryland General Assembly. This constitution also changed the status of the City of Baltimore and its relationship with the surrounding Baltimore County. The city was given the status of the (soon-to-be) 23 counties of the State and a provision for “home rule.” Growing criticism of the 1851 Constitution, especially relating to how the judiciary functioned, led to pressure for yet another revision.

The 1864 Constitution was written in the midst of the Civil War. Unionists controlled the Maryland government at the time and made some significant changes to the document. It was approved by a bare majority (50.31%) of the state’s eligible voters, which included Union soldiers from other states temporarily assigned to Maryland! Perhaps its most controversial feature was the temporarily disfranchisement of the approximately 25,000 Marylanders who were at that time fighting for or supporting the Confederacy.

Only three years later, the Constitution of 1867 was approved. As noted, it still operates today. Subsequent amendments have been approved which brought changes to the wording in the main constitution and amendments to the Declaration of Rights, the last of these occurring in 2010.

In 2019, Maryland is home to slightly more that 6 Million people.[14] Interestingly, its state government has been continuously controlled by the Democratic Party for nearly 100 years. In 2013, frustrated conservatives in the five western-most counties famously mounted an effort to secede from the remainder of the state and form a new one, called Western Maryland.[15] This call to secede joined similar efforts in California, Arizona, Michigan and Colorado — proving that the issue of secession lives on.

The “Old Line State” has produced many noted politicians and four Supreme Court Justices. They include:

  • Spiro T. Agnew, former Governor of Maryland and Vice President of the United States
  • Sargent Shriver, former Vice Presidential candidate
  • John Bolton, former United States Ambassador to the United Nations
  • Steny Hoyer, current House Minority Whip, U.S. House of Representatives
  • Nancy Pelosi, current Speaker of the U.S. House of Representatives
  • Samuel Chase, former Associate Justice of the Supreme Court
  • Roger Taney, former Chief Justice of the United States
  • Thurgood Marshall, former Associate Justice of the Supreme Court
  • Brett Kavanaugh, current Associate Justice of the Supreme Court

The Old Line State provides both the historian and constitutional scholar much to occupy their time. With one of the oldest state constitutions still operating today, including one of the longest Declarations of Rights, a detailed study of the rights of Maryland’s citizens will be time well spent.

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

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[1] Some accounts put the unit at 260 remaining men, of which only a handful survived the day.

[2] The story of the “Maryland 400’s” heroic stand is told by Patrick K. O’Donnell in Washington’s Immortals: The Untold Story of an Elite Regiment Who Changed the Course of the Revolution.

[3] https://books.google.com/books/about/The_battle_of_Long_Island.html?id=TFYOAAAAIAAJ.

[4] Named after the King’s wife, the former French princess Henrietta Maria, aka Queen Mary.

[5] https://plymouthcolonytourism.weebly.com/population.html.

[6] https://en.wikipedia.org/wiki/Battle_of_Bladensburg.

[7] A “Civil War” is normally fought over who will control an existing government. The South had no interest in taking over the government of the Union.

[8] https://www.thoughtco.com/lincoln-issues-proclamation-suspending-habeas-corpus-3321581.

[9] http://www.abrahamlincolnonline.org/lincoln/speeches/hodges.htm.

[10] Ratified on December 18, 1865.

[11] https://en.wikipedia.org/wiki/Jury_nullification#State_laws.

[12] http://constitution.org/trials/penn/penn-mead.htm.

[13] https://www.thenewamerican.com/usnews/constitution/item/22588-supreme-court-justice-sotomayor-supports-practice-of-jury-nullification.

[14] http://worldpopulationreview.com/states/maryland-population/.

[15] https://www.foxnews.com/politics/western-marylanders-push-to-secede-from-state.

Guest Essayist: Tony Williams

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In the fall of 1779, John Adams was home in Massachusetts during a respite from his diplomatic responsibilities in Europe. While he was there, Adams drafted the state constitution that built on the constitutions and experiences of other states, using them as a model of success and failure. The resulting Massachusetts Constitution was a balanced constitution.

Royal authority had collapsed in Massachusetts in 1775, and the state was governed by a provincial congress under the 1691 colonial charter. The legislature had drafted a constitution in 1778, but the sovereign people of local townships had rejected it.

The people of Massachusetts concurred with other Americans that written constitutions were perpetual fundamental law made by the representatives of the people at popular conventions called for that purpose. The Massachusetts legislature, however, was an ordinary lawmaking body that was not invested with the authority to create such a constitution.

In early 1779, all free men over 21 were eligible to vote for delegates to a special constitutional convention which began meeting in September. The constitution would need ratification by two-thirds of those same men to become fundamental law. This was an expression of the principle of popular sovereignty, or the will of the self-governing people.

The convention called a drafting committee which then appointed a subcommittee of James Bowdoin, Samuel Adams, and John Adams to write the constitution. Bowdoin and Samuel Adams deferred to John Adams to complete the task. Adams finished his assigned work and submitted it to the convention which made revisions and submitted it to the people for ratification in March 1780. It was adopted in June.

The Massachusetts Constitution of 1780 was comprised of the familiar principles of the American Founding especially those found in the Declaration of Independence. The preamble asserted that the sovereign people formed a social compact with each other to create a republican government whose purpose was to protect the natural rights of the people. They had a right to alter that government for one that best protected their safety and happiness.

The first part of the constitution was a declaration of rights. All men were born free and equal with inalienable rights including life, liberty, and property. The constitution stated that worshipping God was a right of conscience as well as a duty. In order to promote ordered liberty, virtue, morality, and happiness, the constitution simultaneously instituted a limited establishment of the Christian religion. Public money would support the Congregationalist Church, but dissenters could allocate their taxes to their own denominations.

Other principles of the Massachusetts Constitution were popular sovereignty, free and regular elections, and no taxation without consent. Fundamental rights that were protected included the rights of the accused, property rights, and the right to bear arms.

The text of the constitution was rooted upon the principles of separation of power and checks and balances. Those principles found expression in three branches of government: legislative, executive, and judicial. The bicameral legislature was divided into two houses based upon the negative experience of Pennsylvania with only one house. The governor and lieutenant governor ruled with the advice of a nine-member council. The governor could veto laws, but the legislature could override the veto by a two-thirds vote. The third branch was an independent judiciary.

The representatives and senators of the General Court legislature and the governor were elected annually. All free men over 21 could vote if they held a certain amount of property because of the prevailing view that propertyless men were dependent upon others and could not render an independent vote. The state judges served for life and during good behavior. Although the state constitutional convention removed a religious test for office, legislative and executive officials had to take an oath to the Christian religion.

The Massachusetts Constitution was predicated on the belief that, “wisdom, and knowledge, as well as virtue, diffused generally among the body of the people, [was] necessary for the preservation of their rights and liberties.” Therefore, the public would support public schools, literature, seminaries, science, agriculture, arts, and trades. This public encouragement would “countenance and inculcate the principles of humanity and general benevolence, public and private charity, industry and frugality, honesty and punctuality in their dealings; sincerity, good humor, and all social affections, and generous sentiments among the people.”

The Massachusetts Constitution of 1780 was drafted and adopted with the aid of examples and experience in other states. It contained its share of paradoxes such as religious liberty coexisting with religious establishment and broad democratic principles but property requirements for voting and officeholding. The constitution, however, represented the republican principles of the American Revolution and Founding as fundamental law.

Tony Williams is a Constituting America Fellow and a Senior Teaching Fellow at the Bill of Rights Institute. He is the author of six books including the newly-published Hamilton: An American Biography.

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Guest Essayist: Martha Zoller

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Georgia, my home state, was admitted into the Union on January 2, 1788 and was fourth of the thirteen original states to ratify the U.S. Constitution. Georgia is known as “The Peach State” or “Empire State of the South.”

When James Oglethorpe claimed Georgia (named for King George III) in 1732, he then brought settlers to Savannah in 1733, who would have thought that less than 50 years later, there would be a war for independence from England. This was one of the challenges for Georgians. Many were not that far removed from life in England and many were not sure about this new initiative called the United States of America.

That didn’t stop Lyman Hall, Button Gwinnett and George Walton from signing the Declaration of Independence in 1776. These three men would find their names on three of the 159 counties in Georgia in the fastest growing part of Georgia some 240 years later.

Georgia’s legislature chose six representatives to the Philadelphia Convention of 1787. Of those, George Walton and Nathaniel Pendleton never attended. The four who attended were William Few, Abraham Baldwin, William Pierce, and William Houstoun. William Pierce made notes on the other delegates that have become important historical documents. The two Georgia delegates who signed the finished Constitution on September 17 were Abraham Baldwin and William Few.

Neither of Georgia’s signers was a native Georgian. Abraham Baldwin had come to the state about three years before the Constitutional Convention. A native son of Connecticut with a theology degree from Yale served the Revolutionary cause as a chaplain in the Continental Army. After the war he studied law and moved to Augusta, Georgia, to practice his new profession. He was involved in government as a member of the Georgia legislature. As one of Georgia’s delegates to the convention, Baldwin cast a vote that resulted in a tie on the very controversial matter of representation in the upper house or Senate in the Congress, buying time for a compromise to be worked out. He considered this his most important contribution to the constitution. He later served in the Congress and was instrumental in founding the University of Georgia.

William Few came to Augusta as the revolutionary movement gained momentum in the mid 1770s and quickly became involved with the Patriot cause. He was a member of the committee that wrote the state constitution of 1777.

The ratification of the United States Constitution inspired Georgia to re-write their state constitution in 1789. The latest version of the Georgia Constitution was adopted in 1983 and has been amended hundreds of times through voter resolutions.

Martha Zoller is a policy advisor and has worked for Senator David Perdue and is now working for Governor Brian Kemp. Zoller spent 20 years in media. Martha is a wife, mother, Oma, lifelong Georgian, culture guru and lover of the Constitution. 

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Guest Essayist: Daniel A. Cotter

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3 – New Jersey – December 18, 1787

Third of the thirteen original states to ratify the U.S. Constitution and join the United States,

“The Garden State” of New Jersey entered the United States December 18, 1787. The New Jersey State Constitution in use today was adopted in 1947 (effective January 1, 1948) and has been amended several times since in minor ways, but its first constitution, written during the crisis of the Revolutionary War, was adopted on July 2, 1776.

Constitutional Convention

New Jersey sent five delegates to the Constitutional Convention in Philadelphia- David Brearley, Jonathan Dayton, William Livingston, William Patterson, and William Houston.  Only the first four signed the Constitution in September 1787, as Houston missed most of the Convention due to illness.   Livingston was the first Governor of New Jersey, holding the position from 1776 until his death in 1790.  His duties in that capacity limited his participation in the Convention, but he was Chair of the Committee of Slave Trade, which developed the compromise on the slavery issue.  Livingston also was an active supporter of New Jersey’s quick ratification of the Constitution.  Brearley’s main contribution appears to be helpful in developing the Electoral  College as part of the Committee of Leftovers, Dayton’s appears to have been minimal, although he participated occasionally in debates, and Patterson introduced the New Jersey Plan, which protected the smaller states against the larger ones. The New Jersey Plan proposal contemplated a unicameral legislature, as the Articles of Confederation contained, with equal voting for each state.  It also would have had the national legislature select the executive.  Although the New Jersey Plan did not prevail, its concept of protecting smaller states was reflected in the Senate provisions.  Patterson would become an Associate Justice of the Supreme Court of the United States in 1793, a position he held until his death in 1806.

The New Jersey Ratifying Convention met in Trenton from December 11 through 20, 1787, and ratified the Constitution on December 18, 38-0, becoming the third state to do so.  Not much appeared to have been debated during the days the New Jersey Ratification Convention met, as the new federal Constitution addressed the major concerns and needs of the state.  In addition, it appears only Federalist delegates were selected to attend the New Jersey Convention.  New Jersey also had a very large debt and heavy levies would have been required, so that too provided motivation for New Jersey to ratify the U.S. Constitution.

New Jersey became the first state to ratify the Bill of Rights when they were submitted, approving eleven of the twelve proposed.  Like Delaware, New Jersey in 1787 was a smaller state and with the protections of smaller states incorporated into the final Constitution, with a  strong national government, New Jersey delegates were satisfied.

The New Jersey Constitution

Immediately before the approval of the Declaration of Independence, the New Jersey delegates met in haste to consider a state constitution to address the emergency and likely imminent invasion by British forces.  Written as a temporary document to address the urgency of the state, it remained in place until 1844.  The constitution allowed all inhabitants worth at least fifty pounds the right to vote, and contained a number of different provisions, including maintenance of the common law and a prohibition on deodand (forfeiture of objects that caused someone’s death).  It also included a free exercise of religion and an establishment clause.

On June 29, 1844, New Jersey adopted its second constitution, which limited suffrage to white males and separated the government into three branches.  The 1844 constitution was one of the first to include a debt ceiling concept in it.  The 1844 constitution was amended in 1875 to conform it to the Fourteenth and Fifteenth Amendments to the United States Constitution.

The current constitution became effective in 1947 and is similar to many state constitutions, although it also contains specific provisions addressing casinos and their regulation.  The current version also includes a provision that terms such as “person” refer to both sexes.

Conclusion

Like Delaware, had New Jersey for some reason not ratified the Constitution, there would still have been a United States.  Little did the four signers of the Constitution from New Jersey in 1787 foresee that their relatively small state would be the 11th most populous in present times.  New Jersey’s delegates were instrumental in protecting the smaller states and although the Virginia Plan ultimately was the winner in the final Constitution, the New Jersey Plan protections were incorporated.  The Garden State, along with Delaware and Georgia, were the only three of the thirteen colonies to vote unanimously at their state conventions for ratification of this new union, the United States of America.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. His book, “The Chief Justices,” (April 2019, Twelve Tables Press), is available now. He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

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Guest Essayist: Andrew Hohns

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Birthplace of independence and the United States Constitution. “The Keystone State,” Pennsylvania is second of the thirteen original states to ratify the U.S. Constitution and enter the United States. The Pennsylvania State Constitution currently in use was adopted in 1968.

We have in Pennsylvania a form of government founded on principles of individual liberty and self-determination. William Penn’s “Holy Experiment,” as Pennsylvania was called, provided its inhabitants certain inviolable rights through our Charter of Privileges–freedom of religion, liberty of consciousness, the election of our legislative representatives, and protections from abusive government intrusion. Of Pennsylvania, William Penn wrote that it would one day be the “seed of a nation.”

In 1751, on the 50th anniversary of Penn’s Charter of Privileges, the people of Pennsylvania celebrated our freedoms by procuring a new bell for our state house, honoring Penn’s foresight. The inscription on the bell reads: “PROCLAIM LIBERTY THROUGHOUT ALL THE LAND UNTO ALL OF THE INHABITANTS THEREOF.” In 1835, 28 years before the Emancipation Proclamation, courageous abolitionists adopted the bell as a resonant symbol for their demands to end slavery—and they gave our State House Bell the name that we use today, the Liberty Bell.

Such was our form of government in Pennsylvania in 1774, when delegates from the 13 colonies began to gather here. In 1776, they declared these United States free and independent, filled with a people possessed of certain natural rights, among which are life, liberty, and the pursuit of happiness. It is for this reason that we now call our State House, Independence Hall. When America’s founding citizens returned to Philadelphia for our Constitutional Convention, they affirmed that solely in We, the People, there resides the authority to govern. Under this authority, they established a constitutional republic, providing a durable framework through which we govern, respecting individual liberty and relying on broad civic participation and engagement in public affairs. This radical notion of self-determination, clarified and strengthened through many years of debate, discourse, and consideration, is the first ray of light in a sunrise that endures still, shining the power of democracy in over 100 countries around the world today.

In Pennsylvania, the grounds we walk upon are parklands sown from potter’s fields, where the remains of many a brave and fallen revolutionary soldier are often interred below. The streets we walk on are paved with the same bricks traversed by Penn, and later Franklin and Jefferson, Adams and Hamilton, Washington and Lee. The heady courage of those early days—1701, 1774, 1776, and 1787—hangs in the air in Pennsylvania. It permeates our state; it lingers within every home and around every corner.

In the earliest days of our republic, Pennsylvania was called the Keystone State, and this for our role in joining the 13 colonies together. When these extraordinary gatherings of delegates met in Philadelphia, they declared support for a form of government that places individual liberty and self-governance at the center of our great experiment. They committed their lives and fortunes to one another to carry forward the nation through the inevitable and heavy burden of war, aiming toward an ideal of service and cooperation, a defense of liberty, and a furtherance of the power of industry and innovation. Because in Pennsylvania we cast our lots together, we are called a Commonwealth.

Where Pennsylvania established our first city in 1682, so too did America in 1776, for as Robert Morris wrote, Philadelphia is to America as the heart is to the human body. Since that day, the promise of liberty and all it inspires has flowed forth from our metropolis to course through the veins of a vast and growing nation.

Today, the Keystone State continues to bring together many diverse peoples and cultures, from both the whole of America and many corners of the world—Independence Hall and the Liberty Bell last year welcomed visitors from all 50 states and 76 countries. Proud to unite our 13 original colonies in declaring Independence, the Keystone State now joins and strengthens a national archway enlarged to 50 states and 7 territories, beckoning those who yearn to be free, inspiring those who defend the cause of liberty, and providing peace to those who seek to exercise the natural rights of humankind. Pennsylvania is to democracy as fertile earth to a farmer—with care and attention, we reap the plentiful harvest sown from the seeds of life, liberty, and the pursuit of happiness.

This radical form of government endures, for as we stand here in 2019, we are merely seven years away from the Semiquincentennial anniversary of the United States, the 250th year of the people, by the people, and for the people. Many and varied are the dividends of our form of government in our first 250 years—inventing the computer, the Internet, and wireless communication; giving birth to flight, breaking the sound barrier and landing a man on the moon; animating the world with motion pictures, jazz, and hip hop; creating vast opportunity through a global capital market, a start-up economy, and a culture of hard work; and protecting our young with vaccines for cholera, plague, and polio.

But in America, we do best to celebrate our history by making the history of the future, inspiring contributions and service from one another as citizens. We aim together toward that more perfect union, recognizing that much still remains to be accomplished—providing shelter for the unhoused, food for hungry, and care for the sick, defending the rights of the oppressed at home and abroad, offering aid and asylum to those in need, securing the health and well-being of our natural environment with clean air, clean water, and safe communities, teaching all of our children to read, to work, and to vote, and continuing to advance, refine, and improve our own government from town school boards to federal offices.

Our form of government relies upon our willingness to renew our high ideals in each successive generation. We aim toward universal justice, equality, and freedom, fueled by the knowledge that our work remains incomplete. The power of democracy derives from the realization that there remain injustices to combat, rights to secure and defend, and oppression and tyranny to root out. We become America in each generation by progressing toward these ambitions.

Our aspirations as a people can only be realized through the participation of each person. Our successes and our shortcomings are tied together. We rely upon each other—through volunteerism, small and uncelebrated acts of kindness, the nurturing of our children by caring teachers, the selfless bravery of men and women in our military, law enforcement, and firefighters—these common threads of personal commitment all woven together into a banner of duty to this nation and to one another. For whether we are down the street or across the country, we are all neighbors.

Now, as we approach America’s 250th anniversary, we are asked to take stock of where we have been and where we are going. We honor our nation by seeing our past for what it has been—at turns inspiring, but not without flaws, aiming toward justice, but not without a history of slavery and oppression, aspirational and sincere, but not without demagoguery and disillusionment. We likewise honor our nation by seeing our present for what it is—democracies exist in reality, and today’s reality, so it is sometimes said, is one of an America divided. The antipathy of red and blue, young and old, rich and poor: these “divisions,” reinforced through certain beguiling echo chambers of modern technology, are said to impede our civic engagement and acts of mutuality. But another view is that we share a deeply held commitment to defend the rights that make us America—personal liberty, religious freedom, protection from unwarranted intrusion, the agency to pursue one’s own hopes and goals, the ability to be whomever and whatever each of us may wish to be. When we recognize and reject the forces that would conspire against America—incivility and ignorance, intolerance and intimidation—we are then most able to honor our nation by securing for our future the promise it contains. Let us recommit to our founding principles with courage, compassion, and daring. The promise of democracy is the realization that within ordinary people swell extraordinary possibilities.

It is now for us to carry forward our nation and to deliver this more perfect union to our children and grandchildren. The path to this future is clear before us: we can volunteer, serve, and participate, engaging one another sincerely, with compassion and civility, appealing always to the highest of human capabilities. With these principles as our guideposts, we are well equipped to reflect upon the defense of our values in the modern world. Could our founding fathers have possibly anticipated that guns would be turned upon our children in our own schools? Could they have anticipated the ubiquitous web of personal information and connectivity of the internet, and the associated challenges to personal privacy? Could they have anticipated the dislocations of vast populations and the associated crises in human rights? Many are the questions that we face today, in our generation of America, to visit and revisit. The strength of our form of government derives from the conviction that We are the People with the knowledge, patience, and determination to address and solve these problems.

As we do in America from generation to generation, let us come together again—let us return to our Keystone State, Pennsylvania—inspiring our fellow citizens through service and cooperation, strengthening our national fabric by honoring the high ideals on which our nation was founded, and supporting and defending the principles of our American Republic, at home and around the world.

In the words of General Washington, “Let us raise a standard to which the wise and honest shall repair.”

Dr. Andrew Hohns is the Chairman of the Board of the nonprofit USA 250 an organization founded to spark the nation’s imagination leading into and through the United States Semiquincentennial, 2026, our Nation’s 250th birthday.  He was also appointed by Congress in 2016 to the United States Semiquincentennial Commission, the Commission established by Congress to direct the celebration of our Nation’s 250th birthday. Dr. Hohns is Managing Director at Mariner Investment Group and serves as Lead Portfolio Manager for two fund strategies related to infrastructure investment. He holds a BS in Economics from the Wharton School at the University of Pennsylvania, a Masters in Liberal Arts from the School of Arts and Sciences at the University of Pennsylvania, and a PhD in Applied Economics and Managerial Sciences from the Wharton School at the University of Pennsylvania. He also serves as a board member of the United States Fund for UNICEF and has served from time to time as an Adjunct Assistant Professor at New York University’s Stern School of Business.

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1 – Delaware – December 7, 1787

As the Constitutional Convention came to a close in Philadelphia, America’s founding representatives signed the United States Constitution on September 17, 1787. Then, the first of the thirteen original states to ratify and approve this document, this new U.S. Constitution, which replaced the Articles of Confederation, was Delaware, signing on December 7, 1787. This signing admitted  Delaware, known as “The First State,” to the United States on December 7, 1787, subject to at least nine other colonies joining in agreeing to the U.S. Constitution. The current Delaware State Constitution in use, which is the fourth constitution in Delaware,  was adopted in 1897, but its first was adopted on September 20, 1776.  The first constitution referred to the state as “The Delaware State.”

Constitutional Convention

Delaware  sent five delegates to the Constitutional Convention in Philadelphia- Richard Bassett, Gunning Bedford, Jr., Jacob Broom, John Dickinson, and George Read.  Surprisingly, all five signed the Constitution in September 1787.  (Evidence is that Dickinson was not feeling well, and left the convention a day early, asking Read to sign his name to the document.)  Of the twelve colonies who signed the Constitution, only Pennsylvania had more signers than Delaware (eight).

The delegates were sent to Philadelphia with instructions that they were okay to offer amendments to the Articles of Confederation, but only “to render the Federal Constitution adequate to the Exigencies of the Union.”  These five delegates, who had attended the Annapolis Convention, were given instructions they could not change the one state, one vote framework for the Articles.

Dickinson has been credited with proposing a solution to address a proposal that the two houses of the Congress be represented according to population, offering that the Senate provide for every state to be equal and the state legislatures to pick the Senators.

Delaware was a very small state in area and in population.  They had no major economic center or product, and yet despite small size, their coast line was large.  The Delaware Ratifying Convention met on December 3, 1787 and, shortly after meeting, became the first state to ratify the Constitution, by a unanimous vote, 30-0, on December 7, 1787.  The only other states to vote unanimously to ratify the Constitution were New Jersey and Georgia.  Delaware beat Pennsylvania by five days in ratification.

Reports of the Delaware Ratifying Convention have been lost.  But by accounts, other than a petition to reject delegates who had been selected by Sussex, not much debate ensued.  Citizens of Delaware desired a stronger national government than the Articles provided. As part of the approvals, Delaware also recommended cession of land for the new Federal Capital to be located within its boundaries.  That last offer of course did not happen.

Of the five delegates who attended the Constitutional Convention in Philadelphia, Dickinson was probably the most prominent.  Known as “Penman of the Revolution,” he wrote the Liberty Song in 1768.  In that same year and the next, he also wrote a series of papers known as Letters from a Farmer in Pennsylvania, attacking British taxing policies.

In 1788, after Delaware ratified the Constitution, Dickinson wrote nine letters as Fabius, answering various Antifederalist arguments, in an effort to reinvigorate ratification progress in other states.

The Delaware Constitution

Immediately following the Declaration of Independence, the Delaware General Assembly met and approved the calling of a state constitutional convention.  The convention met in August 1776, naming Read President.  On September 20, 1776, the convention approved the new constitution and it became effective.  Delaware became the first state to have a convention write a constitution after the Declaration of Independence.  The constitution had a bicameral legislature, an executive with broad authority after consulting with the Privy Council, and a judicial branch that the Executive and General Assembly selected. The constitution prohibited the entry of anyone from Africa or other places for the purpose of holding the individuals in slavery.

The 1776 constitution was replaced by the Delaware Constitution of 1792, which remained in effect until 1831, when a convention approved a third state constitution. The current constitution, Delaware’s fourth, was adopted in 1897 and remains in effect.

Conclusion

Unlike some larger, more influential states, had Delaware for some reason not ratified the Constitution, there would still have been a United States.  However, its delegates contributed to the Constitutional Convention in Philadelphia, including the proposal that eventually addressed small versus large state representation, and through its leadership in being the first state to ratify the Constitution and by a unanimous vote.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. His book, “The Chief Justices,” (April 2019, Twelve Tables Press), is available now. He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

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State Constitutions? – Why would each state need a constitution when we have the United States Constitution? What would it mean for the states to be run by their citizens rather than royal rule?

“Americans are the heirs of a constitutional tradition that was mature by the time of the national Constitution,” writes Donald Lutz in The Origins of American Constitutionalism.”[1] Beginning with “proto-constitutions” such as the Mayflower Compact, the Pilgrim Code of Law and the Fundamental Orders of Connecticut, Americans had spent more than 150 years learning and perfecting the art of constitution-writing — and the thirteen state constitutions which were in effect when the national constitution was ratified in 1788 were an important step in that process. “It would not be putting the matter too strongly to say that the United States Constitution, as a complete foundation document, includes the state constitutions as well.”[2] Tragically, Americans, whose knowledge of their national constitution is dismal enough,[3] show even less interest in those of their own states. This is doubly tragic when you consider that American lives are arguably more affected by the laws of their state than by federal law.

As to what it would mean for the states to be run by their citizens rather than royal rule, some colonies had not known “royal rule” for quite some time.  The charters of 1662 (Connecticut) and 1663 (Rhode Island) had given each of these colonies permission to elect their own governors rather than live under governors appointed by the king, as was the rule elsewhere. In fact it was the “self-rule” aspects of these charters that persuaded the two states to not construct new constitutions after July 4th 1776, finding instead that they could continue operating under the structure of these charters as independent states. Even in those colonies operating under royal appointees, those governors rarely interfered in the affairs of their elected legislatures, making Parliament’s “Intolerable Acts” of 1774[4] even more intolerable.

Every government, every organization for that matter, has a constitution, whether one has been purposely created for it or not; this is simply a fact of voluntary association. Until a written constitution is drafted to guide it, any organization will, over time, adopt formal or informal rules to guide the organization and its affairs. These rules comprise a constitution, often an unwritten one.

Black’s Law Dictionary[5] defines “Constitution” as “The organic and fundamental law of a nation or state, which may be written or unwritten, establishing the character and conception of its government, laying the basic principles to which its internal life is to be conformed, organizing the government, and regulating, distributing, and limiting the functions of its different departments, and prescribing the extent and manner of the exercise of sovereign powers.”

America had a constitution in 1776, or at least so thought Jefferson when he complained in the Declaration: “[The King] has combined with [Parliament] to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws.” (Emphasis added).  “Our constitution,” not “our constitutions” (which could have pointed to the several state constitutions by then in force).  While the colonies certainly lacked a common, written constitution, the last 150+ years of successful collective self-government had resulted in the informal incorporation of many features of government which combined to comprise an unwritten constitution – which Jefferson claimed was being violated.

“Reading properly and carefully, one can glean from a constitution the balance of political forces, a structure for preserving or enhancing that balance, a statement of the way people should treat each other, and the values that for the basis for the people’s working relationship, as well as the serious, remaining problems in the political order.”[6]

In July 1776, when the thirteen united colonies claimed their independence and became “free and independent states,” they had a long relationship with self-governance –Virginia, the oldest colony, since 1619; and the autonomy they enjoyed would not be so easily given up to a Parliament which, in 1766, had claimed for itself the right to legislate for the colonies “in all matters whatsoever.”[7]

By 1776, each colony was operating under a charter from the King of England, some royal, some proprietary, which defined its leadership/governing structure and the rights to be enjoyed by the colony’s inhabitants. Virginia’s 1606 charter, for instance created a thirteen-member governing council in Virginia shadowed by another thirteen-member council back in England. The colony’s citizens were to enjoy “all liberties, franchises and immunites within anie of our other dominions to all intents and purposes as if they had been abiding and borne within this our realme of Englande”[8]

On May 10th, 1776, the Second Continental Congress issued a resolution encouraging any of the colonies who had not already done so 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.” [9] Sent out on May 15th after a prologue had been added, the resolution arrived too late for several colonies. The previous January, New Hampshire had unilaterally enacted a new constitution, the first to do so.  South Carolina had followed suit on April 12th.  On May 4th, 1776, the legislature of Rhode Island, sensing the mood of the country, passed a bill that replaced an act of allegiance to the king with an oath of allegiance to the state – effectively declaring their independence. As previously noted, Connecticut’s “Fundamental Orders,” adopted in 1638 while the state was still an English colony, included no overt allegiance to England. It would not be until 1818 that Connecticut would get around to drafting a new constitution. Virginia had already issued its call for a constitutional convention, to assemble in Williamsburg on May 5th. Their new constitution was enacted 5 days before Jefferson’s Declaration was approved in Philadelphia.

Responding to Congress’ resolution, the other colonies began to take action:  Maryland, Delaware, Pennsylvania, North Carolina, and New Jersey all enacted new Constitutions later that year.

Georgia and New York put new constitutions in place the following year, Massachusetts in 1780.

These first state constitutions “were the most detailed and legally binding collective expression of the revolutionaries’ political ideas in 1776.”[10]  Often overshadowed by the Constitution of 1787, the state constitutions are a rich treasure trove of republican and democratic principles.

Why were the state constitutions still needed after the U.S. Constitution went into effect twelve years later? Simply because the formation of a new national government did not eclipse the state governments, in fact it relied upon the states to continue to provide the vast majority of governmental services within each state, which the Tenth Amendment to the U.S. Constitution obliquely reminds us: “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.”[11]

Eleven of the original thirteen state constitutions contained specific protections for individual rights. While a state document cannot deny a right secured in the national document, in some cases the states secure rights for their citizens which are not mentioned or are elucidated differently in the national document.  For instance, Pennsylvania and a few other states make it clear that “the people have a right to bear arms for the defence of themselves and the state,” significantly clearer than the confusing wording of the U.S. Second Amendment. (Emphasis added). The North Carolina constitution secures a right for its citizens to “instruct their representatives,” and requires that jury decisions be unanimous (as do several other state constitutions). Maryland secures a right for its citizens of resistance, against arbitrary power and oppression.” Delaware’s first constitution (enacted September 10,1776) outlawed slavery in the state.

In many cases, these first state constitutions take the opportunity to explain principles of government which the Framers of 1787 apparently thought were so “self-evident” as to not require mentioning. For example, the Virginia Declaration makes the following statements (here paraphrased) not found in the U.S. Constitution:

  • That all men are by nature equally free and independent, and have inherent rights that they cannot, by any compact, deprive or divest their posterity.
  • That all power is vested in, and consequently derived from, the people.
  • That magistrates should be at all times amenable to the people.
  • That elected officials should be returned to the body of the people to feel, once again, their burdens.
  • That government is instituted for the common benefit, protection, and security of the people, nation or community.
  • That a majority of the community has a right to reform, alter or abolish their government.
  • That no individual or group is entitled to exclusive or separate benefits or privileges from the community.
  • That citizens should evidence a permanent common interest in, and attachment to, their community before being allowed to vote.[12]

Today, a Massachusetts legal organization cautions: “Some of the protections bestowed by the [Massachusetts ] Declaration of Rights duplicate those enumerated in the Bill of Rights, while others confer greater protection of individual liberties. Too few Massachusetts criminal defense attorneys utilize the additional protections afforded to Massachusetts citizens under the Declaration of Rights in defending their clients. A criminal defense lawyer who fails to specifically cite the Massachusetts Declaration of Rights in objections at trial or issues raised on an appeal may needlessly consign his client to a prison cell.”[13]

Another advantage of the state constitutions lies in their generally being easier to amend than the national constitution. As a consequence, the state constitutions are amended far more frequently.  The entire constitution of a state can often be replaced more easily (Georgia and Louisiana are each currently operating under their ninth state constitution since 1776).

For those interested in further study of the 50 state constitutions, the NBER/Maryland State Constitutions Project provides searchable access to almost 150 versions of these documents. The best comparative treatment of the state constitutions, including to what extent they incorporated the leading principles of republican government, is found in Willi Paul Adams’ masterpiece: The First American Constitutions; Republican Ideology and the Making for the State Constitutions in the Revolutionary Era.

State constitutions perform an important role in the governance of America’s 320 Million citizens and play a critical role in making federalism work.  We couldn’t get by without them.

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

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[1] Donald Lutz, The Origins of American Constitutionalism, Louisiana State University Press, Baton Rouge, 1988, p.5.

[2] Ibid.

[3] https://www.washingtonpost.com/news/monkey-cage/wp/2017/06/27/too-many-americans-know-too-little-about-the-constitution-heres-how-you-can-fix-that/?utm_term=.8715e5eb6890

[4] https://en.wikipedia.org/wiki/Intolerable_Acts

[5] Black’s Law Dictionary, 4th Edition, accessed at:

[6] Lutz, p. 3

[7] The American Colonies Act 1766, aka The Declaratory Act, explained at https://en.wikipedia.org/wiki/Declaratory_Act

[8] 1686 Virginia Charter

[9] http://startingpointsjournal.com/may-resolution-declaration-of-independence/

[10] Willi Paul Adams, The First American Constitutions; Republican Ideology and the Making for he State Constitutions in the Revolutionary Era, Rowman & Littlefield, Pub, New York, 2001, Preface to the Expanded Edition.

[11] https://en.wikipedia.org/wiki/Tenth_Amendment_to_the_United_States_Constitution

[12] https://en.wikipedia.org/wiki/Virginia_Declaration_of_Rights

[13] https://www.relentlessdefense.com/what-should-i-do/massachusetts-declaration-of-rights/

 

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State Constitutions? – Why would each state need a constitution when we have the United States Constitution? What would it mean for the states to be run by their citizens rather than royal rule?

The first question poses an issue of federalism and the rule of law.  The United States Constitution was drafted to establish a particular form of government at the national level.  Its provisions were not intended mainly to address states as states but individuals who lived in those states.  Federalism as an institutional form allocated certain powers to the national government and more or less left any remaining powers to the states.  If the citizens of any given state were to enjoy the benefits and protections of limited government, some sort of constitutional rules would be required.  Otherwise the state governments would have unlimited authority.  By definition a constitution is an enforceable set of rules, alterable by the people and unalterable by the government.  A state constitution provides such a framework.

This also is one reason why state constitutions are so long, compared to the Federal Constitution.  The state governments possess reserved powers, that is, all power not granted to the national government.  Since this is a very large potential body of power, it is necessary to address any particular power that might be invoked by the state.  In turn, that requires a much more detailed set of provisions, since whatever is not addressed is by definition granted to the state government.

The second question is one of self-governance.  John Locke had argued that all legitimate government was established by a social contract founded on the “consent of the people.”[1]  For Locke this was the only effective way to limit the power of government to its ordained functions—the protection and promotion of the natural rights of life, liberty and property.  Royal rule implied a centralized and removed form of government in which the citizens had only those rights that government chose to grant to them.  In the Colonial period, constitutionalism did not exist in effect, though many spoke of an “Ancient Constitution” that, among other things guaranteed “the rights of Englishmen.”  This was however an unenforceable hodgepodge of laws and customs, not a coherent, written document.

As a result, governance from England was exercised through the king and his colonial governors.  If the states were governed by their citizens they would be able to choose their own type of institutional structure and likely (as they did) directly participate in choosing many of the public officials.  The government would in a real sense be closer to the people.  Local conditions would be better known, as opposed to attempts to make policy from the mother country.

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).

[1]   See Second Treatise of Government (1690).

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M. Stanton Evans rightly complained against what he termed “the Liberal History Lesson”, the lie that Americans got our freedom by turning from Christianity.[1] That tale is supported by other fictitious claims, such as that the statesmen who gave us our independence, the U.S. Constitution, and the Bill of  Rights were Deists, rationalists, and skeptics who wanted to separate Christianity from politics and establish a “religiously neutral” or secularist political order over these United States.  None of that fits the evidence—when all the evidence is considered.  The pertinent evidence must be summarized,[2] but the evidence from our first states’ constitutions, declarations and/or bills of rights is sufficient to make the case.[3]

Christianity, overwhelmingly Protestant Christianity, was the religious commitment of the people of every state.[4]  Early American education—at all levels including college, in all colonies and areas of the colonies/states—was overwhelmingly Christian: before, during, and long after the “Revolution” and the “Founding Era.”[5]  Christianity was fundamental and dominant in early American law, legal thought, and legal education during and after this time.[6]  Christianity was much more influential on early American political thought than we have been told.[7]  Moreover, the framers and ratifiers of the Constitution created by representatives of the several states and ratified by the respective state legislatures or specially elected state ratification conventions were not Deists, skeptics, rationalists, or secularizers, but were overwhelmingly Christians.[8]

Two states retained their manifestly Christian colonial charters as their state constitutions: Connecticut until 1818, and Rhode Island until 1842.  New Hampshire and South Carolina created their constitutions in 1776, before the colonies’ Declaration of Independence, as temporary expedients in case no accommodation could be reached with England.  Virginia and New Jersey crafted their constitutions before the Declaration too, but as permanent governmental devices.  Pennsylvania, Maryland, Delaware, North Carolina, Georgia and New York framed their constitutions, declarations, and bills of rights after the Declaration but completed the process by early 1777.[9]  The Massachusetts Constitution of 1780 was the first to be created by a constitutional convention and approved by popular vote.  Thus, says McClellan, it was “the first written constitution resting on a thoroughly republican base, and in this respect set the standard for the Federal and State constitutions that were to follow.”[10]  Though they had important similarities, the states had different histories, religious and ethnic compositions (in religion, overwhelmingly among Christian denominations), social orders, economic interests, and internal politics.  They were thirteen peoples, not one.[11]

The new state constitutions, declarations and/or bills of rights created by the states were clearly Christian, though not flawless, and the people of each state learned from the fundamental laws created by the representatives of the peoples of other states, as well as from their own.  These documents were adaptations of the inherited forms, structures, and principles of the respective colonies’ governments and laws.[12]

Our states’ first fundamental laws featured Christian rhetoric, statements of God’s—and no other god’s—attributes and authority, including His providential, covenantal governance of history, and a Christian view of the Source and rightful content of law.

Concerning civil government, they set forth a covenantal, republican view that civil government must, under God, be based upon the consent of the governed.  Concerning man, the rulers and the ruled, they affirmed that he is created with certain unalienable God-given rights, but rejected notions that man is either “neutral” or naturally good.  They affirmed the unpleasant reality of Original Sin and designed their governments to protect liberty and justice against it.  Because they knew the fallen nature of man, they designed limited republics with written constitutions and bills of rights.  Those republics had both democratic and aristocratic features, designed to protect the majority and the minority against injustices.  They were not egalitarian, and sought to protect property by means of graded property qualifications for government offices.  To protect and promote godly laws and liberty, they had Christian qualifications for public office; in respect for Christians who believe that God forbids men to swear an “oath,” they let them make an “affirmation” instead.  To promote the benefits of education in all mental, practical, and geographical areas of a state, they encouraged the towns, precincts, and voluntary associations to promote Christian instruction.

Due to the states’ colonial heritage, some of them (Virginia, North Carolina, New York) had the Anglican, or Episcopal Church as the legally established church of the state.  In Connecticut and Massachusetts the Congregational Church was the de facto established church.  In South Carolina, New Jersey, and New Hampshire, Protestantism was the quasi-established not church but religion.[13]  In Delaware, Pennsylvania, Maryland, Georgia, and Rhode Island Christianity was quasi-established.[14]  When the states finally did away with their particular de jure or de facto established or quasi-established church, they were not motivated by rationalism, “neutrality” among all religions, or secularism, but by Christianity, Christian leadership, and a desire for religious liberty within the boundaries of Christian, or Biblical ethics (later including Jews).

Because they knew the fallen nature of man, they created systems of separation of powers with accompanying checks and balances among institutions to protect liberty and justice.  For the same reason, they stated the right of the people to resist tyranny.  And to protect their people against simplistic philosophies of freedom, they reminded them of the biblical connection between Christianity, virtue, and liberty: faith in God, obedience to His commandments, and God’s blessings upon the people of the state.  Such historical realities the “Liberal History Lesson” omits.

Archie P. Jones, Ph.D., Teacher, Librarian, Author of The Gateway to Liberty: The Constitutional Power of the Tenth Amendment

[1] M. Stanton Evans, The Theme Is Freedom; Religion, Politics, and the American Tradition (Washington, D.C.: Regnery Publishing, Inc., 1994), 3-21.

[2] Benjamin F. Morris, The Christian Life and Character of the Civil Institutions of the United States (Powder Springs, Georgia: American Vision, [1864] 2007), provides more than 800 pages of pertinent evidence about Christianity and the states in general.

[3] Morris, 267-292, deals with the state constitutions framed during the “Revolution.”

[4] For extensive evidence on this, see Morris, The Christian Life and Character of the Civil Institutions of the United States, 55-138.

[5] Archie Preston Jones, “Christianity in the Constitution: The Intended Meaning of the Religion Clauses of the First Amendment,” (Ph.D. dissertation, University of Dallas, 1991), 79-144.

[6] Jones, “Christianity in the Constitution,” 145-230.  See also John Eidsmoe, Historical and Theological Foundations of Law, 3 volumes (Powder Springs, Georgia: American Vision Press, Tolle Lege Press, 2011), especially Vol. I, pages 243-468, Vol. II, pages 582-620, 687-960, and all of Volume III.

[7] Since political sermons were often part of public affairs in early America before, during and after the War for Independence, see Ellis Sandoz, ed., Political Sermons of the American Founding Era, 1730-1805 (Indianapolis: Liberty Press, 1991).  Further evidence of the influence of Christian political thought on early America see Charles S. Hyneman and Donald S. Lutz, eds., American Political Writing during the Founding Era, 1760-1805 (Indianapolis: Liberty Press, 1983).

[8] M.E. Bradford, A Worthy Company; Brief Lives of the United States Constitution (Marlborough, New Hampshire: Plymouth Rock Foundation, 1982), and M.E. Bradford, Religion and the Framers: The Biographical Evidence (Marlborough, New Hampshire: Plymouth Rock Foundation, 1991).

[9] James McClellan, Liberty, Order and Justice; An Inrtoduction to the Constitutional Principles of American Government (Washington, D.C.: Center for Judicial Studies, 1989), 84-86.

[10]McClellan, 87.

[11] Abel P. Upshur, The Federal Government: Its True Nature and Character; Being a Review of Judge [Joseph] Story’s Commentaries on the Constitution of the United States (New York: Van Evrie, Horton & Co., 1868), Reprinted by St. Thomas Press, Houston, Texas, 1977, provides a 242-page, point-by-point refutation of Story’s unhappily influential work.

[12] On the colonial charters and states’ constitutions see Conrad Henry Moehlman, The American Constitutions and Religion; Religious References in the Charters of the Thirteen Colonies and the Constitutions of the Forty-eight States; A Sourcebook on Church and State in the United States (Berne, Indiana, 1938); Benjamin P. Poore, ed., Federal and State Constitutions, Colonial Charters and Other Organic Laws of the United States, 2 volumes (Washington, D.C.: Government Printing Office, [1877] 1888); and William J. Federer, The Original 13; A Documentary History of Religion in America’s first Thirteen States (St. Louis, Missouri: Amerisearch, Inc., 2014).

[13] That is, Protestants’ religious freedom was protected.

[14] That is, Christians’ religious freedom was protected.

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When John Jay, in Federalist No. 2, said he had often noted with pleasure that “Providence has been pleased to give this one connected country to one united people—a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long and bloody war, have nobly established general liberty and independence,” he was half right.  He recognized that the peoples of the states that declared their independence in 1776 were overwhelmingly Christians and Protestants.  Yet he was certainly wrong about them being “one united people,” and about them having a purpose to establish “general liberty and independence,” for as the colonies’ Declaration makes clear, they fought to make each colony, under God, a free and independent state.

The Americans of those colonies had an overwhelmingly Christian background extending through English and Western history to the Old and New Testaments.[1]  Their theological background was dominantly Calvinistic, but with diverse expressions.  Of the 3,000,000 Americans in 1776 about

900,000 were of Scotch or Scotch-Irish origin, 600,000 were Puritan English, and 400,000 were German or Dutch Reformed.  In addition to this the Episcopalians had a Calvinistic confession in their Thirty-nine Articles; and many French Hugenots also came to this Western world.  Thus…about two-thirds of the colonial population had been trained in the school of Calvin.[2]

These colonies were the most thoroughly Protestant, Reformed, and Puritan commonwealths in the world.  Puritanism provided the moral and religious background of 75 percent of the people who declared their states’ independence in 1776.[3]  Ahlstrom says that “If one were to compute such a percentage on the basis of all the German, Swiss, French, Dutch, and Scottish people whose forebears bore the ‘stamp of Geneva’ in some broader sense, 85 or 90 percent would not be an extravagant estimate.”[4]

American culture when our early state constitutions were framed was clearly Protestant, with local variations in each state according to its ethnic, denominational and theological heritages.  Education, law, legal thought and legal education were overwhelmingly Protestant—before, during, and long after our first states framed their fundamental laws.[5]  These were deeply Christian, with theological presuppositions, philosophies, histories, and precedents reaching back through British and Western history and legal thought beyond the Reformation and the medieval period to the Bible.[6]

Although the peoples of the English colonies were basically one in their commitment to Christianity, the Christian basis of their ethical, political, and legal thought, and their desire to be free of England’s rule, they were not one but many in many other ways.  They were many in their theologies, ecclesiastical doctrines, and denominational affiliations.  Theologically, they were Calvinists and Arminians, Protestants and Roman Catholics.  Denominationally, they were Presbyterians, Congregationalists, Reformed, Episcopalians, Baptists, Methodists, Evangelicals, independents, Lutherans, German Reformed, Dutch Reformed, Hugenots, Quakers, Mennonites.  Most were from England, but some were from Scotland, Ireland, Northern Ireland (Scots Irish), France (Hugenots), the Netherlands (Dutch Reformed), or Germany (Reformed, Lutheran, Mennonite).  Though most were from England, they spoke different dialects.  As Phillips noted in The Cousins’ Wars, those who settled the various colonies were from different parts of England, had fought against each other in the English Civil War (1640s), and would, to some extent, fight against each other again in the colonies’ War for Independence, and later in our misnamed “Civil War”.[7]  As was obvious to the colonists, the New England colonies were heirs of the Puritans, quite different from colonists of the more diverse Middle Colonies, and even more different from the more traditional Anglican, Presbyterian and Baptist colonies of the South.

Nor were they one in their economic interests and endeavors.  Farming was dominant in every region.  But New England’s economy focused on mercantile activity, manufacturing, fishing, and whaling.  The Middle Colonies’ focus was on mercantile activity.  The South was dominated by agriculture and an agrarian philosophy.

The cultural difference between the people of the North, particularly New England, and of the South was deep.  Page characterized it as producing “(t)wo essentially diverse civilizations”,[8]  and eventually (1861-1865) our most destructive war.  The differences were religious, economic, cultural, and political.  Religiously, the South was more Anglican or low-church Episcopalian, Presbyterian, and traditional; the North, especially New England, was Puritan (Calvinistic Congregationalist).  Culturally, the South was individualistic, traditional, and conservative; the North was more community-centered, authority-centered, and church-centered.  The tyranny of the British king-in-Parliament, not cultural or political convergence, brought the two peoples together for their common defense.[9]

The colonies had different modes of government: in New England the township; in the South the county; in the Middle Colonies a mixture of the two.  The New England township was more overtly democratic than the Southern colonies’ governments, but had oligarchic aspects and exercised more power over the individual than Southerners would have tolerated.  Southern government was formally more aristocratic, yet substantively much more influenced by the “plain folk” than most historians admit.

The colonies had diverse histories.  Each section had been settled by somewhat different groups of people, from different places in England and Western Europe.  Though slavery existed in almost all the colonies, it was more successful in the South, so the Southern colonies had larger slave populations, and more diversity in that respect than the other two sections.  Peoples of the New England states had more in common with those of the Middle states than they did with the peoples of the Southern states. Moreover, each colony had its own unique history and regional and local differences within its borders.

The relations of the colonies to each other clearly indicate that they were not one people.  They were all under the authority of the British Empire, but each was connected to Britain by its own charter.  They were not bound only by laws of a common sovereign to them as a whole, for each had its own government.  They owed no reciprocal obligations to each other and had no common political interests or duties.[10]  As Upshur explains:

The people of one colony owed no allegiance to the government of any other colony, and were not bound by its laws.  The colonies had no common legislature, no common treasury, no common military power, no common judicatory….There was no prescribed form by which the colonies could act together, for any purpose whatever; they were not known as “one people” in any one function of government….even in the action of the parent country, in regard to them, they were recognized as separate and distinct.  They were established at different times, and each under an authority from the Crown, which applied to itself alone.  They were not even alike in their organization.  Some were provincial, some proprietary, and some charter governments.  Each derived its form of government from the particular instrument establishing it…, without any connection with, or relation to, any other.[11]

The nature and extent of the powers exercised by the Continental Congress did not make the people of all the colonies a “de facto nation” or “one people.”  That Congress was not a true civil government: it could only consult, deliberate, pass resolutions, and advise, not legislate.[12]

The Declaration of Independence did not “bring forth a new nation”; it brought forth thirteen new independent nations.  The Congress that produced that Declaration then acted only upon the authority of the consent and acquiescence of the several states—not upon any authority of a new nation consisting of all the people of the states as a collective entity.  It was then a de facto government that, in its ordinary business, relied on the belief that its actions would be approved and confirmed by their states.[13]

In no Continental Congress did the states’ representatives act as representatives of one people.  No wonder, for the standard estimate of the loyalties of the colonists is: one-third for independence, one-third against it, and one-third undecided.  Every recommendation to send representatives to a general Congress was addressed to the colonies as such, not to “the people.”  Each colony acted for itself in the choice of those deputies; none acted in the name of the whole “American people.”  The colonies after their Declaration acted as equals, not as areas having a certain percentage of the whole people of a “new nation.”[14]  However a state’s representatives were chosen, they were chosen in each particular state for itself alone, certainly not for any “nation.”

The Continental Congress exercised de facto a power of legislation in many cases, but never had that authority de jure by any grant of power from the colonies or from “the people” of “the nation.”  Congress’s acts only became valid by the states’ subsequent confirmation.  During the course of the war the people

“…never lost sight of the fact that they were citizens of separate colonies, and never, even implicitly, surrendered that character, or acknowledged a different allegiance.  In all the acts of Congress, reference was had to the colonies, and never to the people.  [Its] measures were adopted by the votes of the colonies as such, and not by the rule of mere numerical majority, which prevails in every legislative assembly of an entire nation.[15]

Acts of the “revolutionary government” were consistent with the independence and sovereignty of the states….  The Continental Congress did not have “exclusive” power to wage war; the independent states used their own sovereign authority to wage their war for independence.[16]

The people of the colonies were not one people before they joined to declare the independence of their states; uniting to form the Declaration did not make them “one people.”[17]  The Congress that declared their independence was appointed by each colony separately and distinctly.  They deliberated and voted as separate colonies—with only one vote per colony—not in proportion to each colony’s population, as they would have if their collective vote were intended to represent the will of the “national majority.”  They did not declare the independence of a new union, but of their thirteen respective states.[18]  The delegates signed the Declaration not as random individual representatives of the whole people of the states, but in groups according to their respective states.  Foreign countries, in treaties, recognized the distinct sovereignty of the states.[19]    

The states’ framing and ratification of the Articles of Confederation did not presuppose or create one people.  The Articles’ wording explicitly refutes such an idea: plainly announcing that “each State retains its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.”[20]

Clearly, the states’ framing and ratification of the Constitution did not presuppose one people.  Providence gave this geographically united country to the divided peoples of thirteen separate states.  Their different colonial histories—in 1776, seven well more than a century, four more than a century, one, more than ninety years, and one, four decades—gave the people of each state a separate identity.

The Constitution did not create one people.  It was framed by representatives of the states, whose legislatures chose the delegates they sent to what turned out to be the Constitutional Convention: not by “the people” of the United States as a whole.  In Philadelphia each state had only one vote.  The states were not allotted votes on the basis of population.  They were represented as equals because they were equally free, independent states.  The Constitution was ratified by elected representatives of each individual state—the state’s legislature or specially elected ratification convention—not by a popular vote of the people of the state, much less by a national plebiscite.

Each state that ratified the Constitution acted on the basis of its own debates and its own representatives’ decision.  In doing so, each state’s representatives determined that the new Constitution and its federal government would not be a threat to its own particular Christian constitution, declaration or bill of rights, governmental system and laws.

The Christian theory of resistance to tyranny that the colonies followed in resisting the king-in-Parliament continued long after the framing and ratification of the Constitution of the United States (and its Bill of Rights).  At least six states—New Hampshire, Maryland, New Jersey, Pennsylvania, Virginia, and Massachusetts—stated this right explicitly in their fundamental laws, and thereby implied the right of the people to use all the legitimate means of resistance endorsed by that tradition.  Article IV of Maryland‘s Declaration of Rights (1776) phrased it pointedly: “The doctrine of non-resistance, against arbitrary power and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.”  Where this doctrine was not stated, it was implicit in the constitutions and declarations of all of the states—which owed their existence to the exercise of precisely such a conviction.

At least three states—Virginia, New York, and Rhode Island—made it plain in their ratification documents that to defend their people’s inherited rights and liberty against central government injustice or tyranny they had the right to secede from the Union established by the Constitution, to take back the powers their people had delegated to the central government whenever it should become “necessary to their happiness.”  Some other states’ ratification documents made it clear that each state retains all powers it had not explicitly delegated to the central government, and that these powers remain with each state—as the Tenth Amendment, voicing a common concern of the people of each state, later made explicit.[21]  Unquestionably, in God’s providence, the peoples of the respective states intended to remain so.

Archie P. Jones, Ph.D., Teacher, Librarian, Author of The Gateway to Liberty: The Constitutional Power of the Tenth Amendment

[1] Russell Kirk, The Roots of American Order (LaSalle, Illinois: Open Court, 1974), 11-392.

[2] Loraine Boettner, The Reformed Doctrine of Predestination (Philadelphia: Presbyterian and Reformed Publishing Co., [1932] 1972), 382-383.

[3] Sydney E. Ahlstrom, A Religious History of the American People (Garden City, N.Y.: Doubleday and Co., Image Books, 1975), vol. 1, 169.

[4] Ahlstrom, 169.

[5] Archie P. Jones, “Christianity in the Constitution: The intended meaning of the religion clauses of the First Amendment ” (Ph.D. dissertation, University of Dallas, 1991), 79-144.

[6] Russsell Kirk, The Roots of American Order; Harold J. Berman, Law and Revolution; The Formation of the Western Legal Tradition (Cambridge: Harvard University Press, 1983); John Eidsmoe, Historical and Theological Foundation of Law, 3 vols., (Powder Springs, Georgia: American Vision Press, Tolle Lege Press, 2012); and Jones, “Christianity in the Constitution,” 145-230.

[7] Phillips has in mind the Puritans who settled New England and the Anglicans who settled the South.  Our War Between the States was not a “civil war” because it was not fought for control of the national government but over the right of a state to secede from the union established by the Constitution.

[8] Thomas Nelson Page, The Old South; Essays Social and Political (Chautauqua, New York: The Chautauqua Press, 1919), 259.

[9] Page, 260.

[10] Abel P. Upshur, The Federal Government: Its True Nature and Character; Being a Review of Judge Story’s Commentaries on the Constitution of the United States; With an Introduction and Copious Critical and Explanatory Notes by C. Chauncey Burr (New York: Van Evrie, Horton & Co., 1868).  [Reprinted by St. Thomas Press, Houston, Texas, 1977], 35.  Upshur’s 242-page point-by-point refutation of Joseph Story’s claim that the Constitution was intended to be based on the national majority will destroys the arguments of multitudes of Fourth of July orations, books, and lectures.  It should be required study for any analysis of the Constitution.

[11] Upshur, 36-37.

[12] Upshur, 44-50.

[13] Upshur, 57.

[14] Upshur, 58.  The states’ argument in their Declaration of Independence refutes the concept of a binding perpetual union, for the laws of nature and of nature’s God that the Declaration invokes as the standard by which one people is justified in terminating its relationship with another are prior in authority to all unions of peoples.

[15] Upshur, 61.

[16] Upshur, 64, 65.

[17] Upshur, 77, 78.

[18] Upshur, 79-81.

[19] Upshur, 90.

[20] Upshur, 94.  This is an obvious forerunner of, and is better worded than the Tenth Amendment.

[21] Archie P. Jones, The Gateway to Liberty: The Constitutional Power of the Tenth Amendment (Powder Springs, Georgia: American Vision Press, 2010), 47-53.

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Meaning of, and how early state constitutions allowed religious establishments regardless of the First Amendment

The first states, as we know, were originally colonies of Great Britain.  Even before that, some were not founded as British colonies, but independent endeavors.  Only later, after the “period of salutary neglect,” did they come under direct governance of the Crown.  From the beginning then, the American colonies, though they did have their own charters and compacts (early constitutions), also could and did have established religions—though many were also tolerant of other religious sects.

Several things must be noted regarding the early colonial and state constitutions in relation to the United States Constitution.  First the colonial and later state constitutions did allow for a single established church.  Some of these simply followed the Anglican Church model and others adopted a different church model.  But their respective constitutions did not pose any legal barriers to this.  Second, the United States Constitution in the First Amendment explicitly stated that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….”  In the early years of the Republic that clause was applied only to the national government, leaving the states free to establish their own official churches.  Many did so.  But even those that did, tended to allow for different sects of Christianity—and even different non-Christian religions.  Massachusetts was the last state to abolish its established Christianity in 1833, before the First Amendment was applied by the United States Supreme Court to the states as well as the national government.

Throughout the “establishment period” (until 1833) the states allowed dissenting churches even though they mandated official churches supported by tax money.  It was not until 1947 in the Everson v. Board of Education, that the Supreme Court began to apply the Establishment Clause to the states.  At that point any established churches would be unconstitutional in the states.  Nevertheless, freedom of religion—toleration in effect—was already the custom of the states, and all had by then abolished established churches.

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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Disestablishment in the remaining states did not depart from the substance or results of “disestablishment” in the previous states.

The South Carolina Constitution of 1778 was the most explicitly Christian and Protestant of our first states’ fundamental laws.  Its “religious” provisions were more unambiguous, detailed and lengthy than those of any other state.  This constitution is the best example of why secularist and “neutralist” accounts of religion and the Constitution seldom deal with the state constitutions, declarations, and bills of rights that were in force when our national Constitution and its First Amendment were framed and ratified.  Among many other things, the South Carolina Constitution declared the “Christian protestant religion” the state’s established religion.  It required a brief, definitely Christian confession of faith to be made by churches incorporated by the state.  It also contained an excellent “declaration” of duties to which ministers must subscribe (from the Anglican Book of Common Prayer).

Disestablishment in South Carolina came in 1778.  It was not the work of non-Christians.  It was mostly the work of the Rev. William Tennent, a Presbyterian minister among the predominantly Christian “dissenters” of the state’s interior.  The new constitution of 1778 omitted a provision for paying ministers from parish funds: making support of “religion” voluntary and equal before the law.  To promote religious liberty, the constitution extended corporate status to all Protestant religious societies that would affirm the fundamental Christian doctrines stated in the South Carolina Constitution.  Protestant churches were granted equal civil and religious privileges.  Tennent did not argue for “neutrality” among all religions, nor for the secularization of civil government and law, but for equal treatment before the law of every denomination of Christians.  He argued for liberty of conscience and judgment in “religious matters”—but did not divorce “conscience” from Christianity:

No legislature has a right to interfere with the judgment and conscience of men, in religious matters, if their opinions and practices do not injure the state….The State may give countenance to religion, by defending and protecting all denominations of Christians, who are inoffensive and useful.  The State may enact good laws for the punishment of vice, and the encouragement of virtue.  The State may do anything for the support of religion, without partiality to particular societies, or imposition upon the rights of private judgment.

He did not advocate reducing Christianity to equality with all other religions, nor anti-“religious” secularizing of civil government or law.

The South Carolina Constitution of 1790 provided for religious freedom “without distinction or preference,” which meant that Roman Catholics and other non-Protestant religious groups—of which there were very few—were granted equal religious freedom with Protestants.  Article VIII provided that “the liberty of conscience thereby declared shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace or safety of this state.”

Disestablishment in South Carolina preceded disestablishment in Virginia:  It did not present Virginia legislators or the framers and ratifiers of the U.S. Constitution or the First Amendment with a model of either “religious neutrality” or secularism.

The New Jersey Constitution of 1776 reflected a long tradition of Christian liberty in worship.  Article XVIII had strong provisions against an established church and for liberty of conscience in worship.  The very next article (XVIV) made it clear that this was a Protestant constitution:

…no Protestant inhabitant of this Colony shall be denied the enjoyment of any civil right, merely on account of his religious principles; but that all persons, professing a belief in the faith of any Protestant sect, who shall demean themselves peaceably under the government,…shall be capable of being elected into any office of profit or trust…

Not until the New Jersey Constitution of 1844 (53 years after ratification of the First Amendment) were Roman Catholics allowed to hold office in New Jersey.

Since Delaware had long been part of Pennsylvania, it had a long tradition of religious toleration.  The colony’s first charter (1701) provided for liberty of conscience, but made it explicitly clear that Almighty God is the only Lord of conscience.  It also restricted public office to those who profess to “believe in Jesus Christ, the savior of the World…”

The Delaware Constitution of 1776, like its original charter, required a Trinitarian Christian oath of office.  Roman Catholics could hold office; non-Christians could not.  There was no religious qualification for voters, but officeholders had to “acknowledge the holy scriptures of the Old and New Testaments to be given by divine inspiration”.

The constitution prohibited the establishment of any one “religious sect” in preference to another: no Christian denomination was to be preferred to another by law.  It assumed that non-Christians would not be eligible for office.  Delaware’s 1776 Constitution was neither “neutral” nor secularist regarding “church and state” or religious freedom.

The new Delaware Constitution of 1792 stated that no religious test would be required as a qualification for any state office.  This neither secularized Delaware’s civil order nor made it absolutely “neutral” among all religions, for the constitution’s preamble stated that

Through divine goodness all men, have, by nature, the rights of worshipping and serving their Creator according to the dictates of their consciences…

This formulation was not “neutral” among all religions, for it excluded atheism, agnosticism, Satanism, and polytheism; nor was it consistent with Mohammedanism.

Section I of the Delaware constitution asserted the rights of conscience in religious worship, prohibited legal preference of any “religious societies, denominations, or modes of worship,” and prohibited the kinds of practices associated with an established church.  It also declared: “It is the duty of all men frequently to assemble together for the public worship of the Author of the universe, and piety and morality, on which the prosperity of communities depends, are thereby promoted…”  This referred to the covenant-making, covenant-keeping God of the Bible.  Hence it excluded, by implication, the worship of all false gods and all false religions from the legitimate protection of “the rights of worshipping and serving their Creator according to the dictates of their consciences.”

The provisions of the 1792 Delaware Constitution were intended to be consistent with the religious and moral doctrines of the Bible, but not to reduce Christianity (or Christianity and Judaism) to a level with all other religions and religious-ethical systems conceived by fallen man in a fallen world.  Approval of the religious actions of the false religions of the world would have nullified the covenantal protection of the prosperity of the community that the Delaware Constitution sought to continue through the worship of the Author of the universe and the piety and morality that He requires.

The Pennsylvania Constitution of 1776, one of the many manifestly Christian state fundamental laws created by our statesmen of the “Revolutionary” period, stated:

All men have a natural and unalienable right to worship Almighty God according to the dictates of their own consciences and understanding:  And that no man ought or of right can be compelled to attend any religious worship, or erect or support any place of worship, or maintain any ministry, contrary to, or against, his own free will and consent…

Like other early American fundamental laws with similar provisions, it did not state that all men have a natural and unalienable right to worship false gods, or many gods, or to worship them in immoral ways.  Nor did it level all religions down to a lowest common denominator.  The “natural and unalienable right to worship” was plainly linked to Almighty God, before whom members of the Pennsylvania House of Representatives had to swear this religious test oath:

I do believe in one God, the Creator and governor of the universe, the rewarder of the good and punisher of the wicked.  And I do acknowledge the Scriptures of the Old and New Testaments to be given by Divine inspiration.

This admitted Roman Catholics to full civil and religious rights, but excluded non-Christians.

Under pressure from the Jews of Philadelphia, the Pennsylvania Constitution of 1790 dropped the requirement that the divine inspiration of the New Testament be affirmed and all religious requirements for electors.  This was too late for it to have influenced the framing of the First Amendment.  It watered down previous provisions, but did not make Pennsylvania’s 1790 Constitution religiously “neutral” or secularist.  Pennsylvania officeholders still had to affirm the being of a God and a future state of rewards and punishments.  This requirement was maintained in the Pennsylvania constitutions of 1838 and 1873.

The Pennsylvania constitutions of 1790, 1838, and 1873 were neither “neutralist” nor secularist.  All recognized the being of God and preserved as fundamental law a 1700 statute penalizing anyone who would “willfully, premeditatedly, and despitefully blaspheme, or speak lightly or profanely of Almighty God, Christ Jesus, and the Holy Spirit, or the Scripture of Truth.”  Pennsylvania’s constitutions and laws protected Christianity until at least nine decades after the ratification of the First Amendment.

Maryland’s 1776 Constitution was definitely a Christian document.  Its Declaration of Rights ended the financial privileges of the Anglican Church, stipulated that a man would no longer be compelled to attend any particular place of worship, and prohibited an established church by forbidding legal compulsion to financially support a particular ministry.

These things were achieved by the work of the dissenting denominations: Protestants (mainly Presbyterians) and Roman Catholics—and the work of outstanding individuals like Roman Catholics Charles Carroll and John Carroll.  They were not the work of rationalists, Deists, or Unitarians, much less of secularists or advocates of “neutrality” among all religions.

The Maryland Bill of Rights and Constitution were not intended to “neutralize” or secularize the relationship between church and state.  They did not abandon Christian ethical standards regarding religious freedom.  The Maryland Declaration of Rights of 1776 allowed only “persons professing the Christian religion” to exercise religious freedom.  A 1781 law required public officials to subscribe to a declaration of belief in the Christian religion.  Not until 1826—35 years after ratification of the First Amendment—were Maryland Jews allowed to hold public office.  Despite their provisions against the establishment of a state church, the Maryland Declaration and Constitution of 1776 could not have been examples for a “neutral” or a secularist First Amendment.

Georgia’s colonial charter granted the free exercise of religion or freedom of conscience to “everyone except papists,” but its 1777 Constitution removed the restriction on Roman Catholics’ religious liberties.

The 1777 Constitution also stated that no one had to support a religious teacher not of his own religious profession: so Christians had to support their church’s or denomination’s pastors.  Like some other states that sought to prevent the establishment of one denomination in a position of superiority in the state, Georgia’s 1777 constitution stipulated that no clergyman of any denomination would be allowed to serve in the legislature.  These provisions were intended to be consistent with the fundamental Protestant Christianity of the document—which required members of the legislature to be “of the Protestant religion.”

Georgia’s new constitution of 1789 dropped the religious test for office, provided that there would be no legal infringement on a man’s civil rights because of his religious principles, and established the free exercise of religion for all persons.  No one would be required to support any religious profession but his own.  This did not create absolute “neutrality” among all religions or secularization of Georgia’s civil life: the state retained its Common Law foundation and its laws enforcing Christian morality.

The 1798 Georgia Constitution clarified the meaning of the free exercise of religion, stating that: “No one religious society shall ever be established in this state, in preference to another; nor shall any person be denied the enjoyment of any civil right merely on account of his religious principles.”

Neither the 1789 nor the 1798 Georgia constitution can be used to argue for a “neutral” or a secularist First Amendment: because neither was really religiously “neutral” or secularist.  And because Georgia did not ratify the First Amendment.

Rhode Island used its colonial charter as its state constitution until 1842.  Its charter established principles favorable to religious liberty and unfavorable to an established church, providing for the “free exercise and enjoyment” of the subjects’ “civil and religious rights.”

Roger Williams, the founder of Rhode Island, was the main influence on the charter.  His intentions were certainly Christian.  The original charter was brimming with Christian rhetoric and principles.  A fundamental purpose of the charter was “enjoyment of all their civil and religious rights”.  So was “that liberty, the true Christian faith and worship of God…”  The charter also stated—as would many of the newly independent state constitutions, declarations, and bills of rights—that this liberty was not to be used “to licentiousness and profaneness, nor to the civil injury or outward disturbance of others.”

Rhode Island residents were made into a body politic to be “in the better capacity to defend themselves, in their just rights and liberties, against all the enemies of the Christian faith…”  This was Rhode Island’s fundamental law until 1842: over 50 years after ratification of the First Amendment.  It is misleading for secularizers to define an “establishment of religion” as any governmental support of “religion,” and to cite Rhode Island as an example of a state “which never had an establishment and opposed every sort of one,” for Rhode Island was definitely neither secularist nor “neutral” toward Christianity.

The evidence from the states previously surveyed as well as from these remaining states is clear and compelling.  At the time of the Declaration of Independence:

  1. Our first thirteen states all had clearly and unmistakably Christian fundamental laws in their colonial charters (Connecticut and Rhode Island), or state constitutions, declarations of rights, and bills of rights (all the rest).
  2. One state, Rhode Island, had liberty of conscience within a Christian setting.
  3. Four states had a single denomination as the state’s established church: In Virginia, North Carolina, and New York the Anglican Church; in Connecticut the Congregational Church.
  4. Eight states had a quasi-established church, an establishment of Protestantism, or of Christianity: Massachusetts (Congregational Church), New Hampshire (Protestantism), South Carolina (Protestantism), New Jersey (Protestantism), Delaware (Christianity), Pennsylvania (Christianity), Maryland (Christianity), Georgia (Protestantism).

At the time of the framing and ratification of the U.S. Constitution (1787-1789), and of the Bill of Rights and the First Amendment (1789-1791):

  1. Two states (Rhode Island and Virginia) had full “religious freedom”—without separating Christianity from their laws.
  2. One state (New York) had “full religious freedom”—with two exceptions: a Protestant test oath for office (until 1806), and a requirement that all naturalized citizens renounce allegiance and subjection to all foreign princes and potentates in ecclesiastical and civil matters.
  3. The other 10 states were either Christian or Protestant establishment (or quasi-establishment) states with religious freedom bounded by Christian morality.

Regarding “disestablishment” and religious liberty:

  1. In NO state—including Virginia—was disestablishment a result of the leadership and work of non-Christians, or a significant number of non-Christians.
  2. In every state it was overwhelmingly the leadership and work of Christians: mainly of the “dissenting” denominations and churches, chiefly Baptists, Presbyterians, and other Protestants.
  3. Some tolerant members of the established church or denomination supported disestablishment: Anglicans/Episcopalians like Madison and Jefferson in Virginia; and Orthodox Congregationalists in Massachusetts—where Unitarians had taken over many Congregational churches from within.
  4. The arguments in the various states’ struggles for disestablishment of a state’s established, or quasi-established church, were conducted as arguments between Christians, not as disputes between Christians and pagans, rationalists, agnostics or atheists.
  5. In NO state was “disestablishment” intended to produce, or did it produce “neutrality” among all religions, de-Christianization or secularism.
  6. Christianity remained fundamental to the laws and practices of each state.
  7. “Disestablishment” in the states was not a precursor of a “religiously neutral” or a secularist First Amendment.

Archie P. Jones, Ph.D., Teacher, Librarian, Author of The Gateway to Liberty: The Constitutional Power of the Tenth Amendment

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“Disestablishment” and “religious freedom” in North Carolina, New York, Connecticut, Massachusetts, and New Hampshire were motivated by different intentions than we have long been taught.

North Carolina had an Anglican establishment before independence and a non-Anglican majority that disliked the Anglican Church.  Dissenters were excluded from all offices of power and dignity and had to pay tithes to the Anglican Church.  Independence and the new constitution of 1776 changed this by precluding the existence of any established church and establishing a Protestant civil government.  Article XXXII declared:

That no person, who shall deny the being of God or the truth of the Protestant religion, or the divine authority either of the Old or New Testaments, or who shall hold religious principles incompatible with the freedom and safety of the State, shall be capable of holding any office or place of trust or profit in the civil department within this State.

Article XXXI prohibited any clergyman from holding any office in the Senate, House of Commons, or Council of State while he continued to be a pastor.  So the North Carolina Constitution provided for the disestablishment of any one Christian denomination and the establishment of Christianity as fundamental to the law of the state.

North Carolina achieved disestablishment without the aid of any non-Christians, rationalists, or Deists—because there was a balance among the various Protestant denominations, and most “dissenting” Protestants disliked the Anglican Established Church.  Scotch-Irish Presbyterians—no rationalists they!—led in the battle for disestablishment and religious liberty.

North Carolina was a clearly Protestant state until at least 1835, when it provided religious liberty for Roman Catholics, and then in 1868, when, still a Christian state, it removed religious and civil disabilities from Jews.

New York’s 1777 Constitution, the third main victory for disestablishment of the Anglican Church, provided for “free exercise and enjoyment of religious profession and worship.”  But it stated that “the liberty of conscience, hereby granted, shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State.”

New York’s constitution excluded all ministers of the Gospel from office—because of the great importance of their duties as ministers, not on anti-clerical, religiously “neutral” or secularist grounds.  It also abolished all parts of the Common Law and colonial statutes that might be construed as establishing “any particular denomination of Christians or their ministers.”  It did not do away with the Common Law as such—with its many Christian principles and rights—so Christianity remained fundamental to the laws of New York.

In 1784 New York abolished the remaining legal privileges of the Anglican Church.  It also passed a law to restrict the political power of Roman Catholics:  requiring all persons naturalized by the state to take an oath renouncing all foreign allegiance and subjection in both civil and ecclesiastical matters.  This test oath was not repealed until 1806.

Disestablishment in New York was achieved by Christians who wanted religious and civil liberty without abandoning Christianity.

Connecticut did not achieve disestablishment and religious freedom until 1818—for until that year the colonial charter served as the state’s constitution, and the Congregational Church remained established until the new Constitution of 1818.  Disestablishment was the will of the ministers, prominent laymen, and ordinary church members.  When it did come, it was supported by tolerant Congregationalists, Baptists, Methodists, most Episcopalians, Quakers, and a tiny minority of the Unitarians and Universalists.  Most rationalists in Connecticut (Unitarians and Universalists) were on the side of the establishment, not disestablishment—reversing the supposed order of “separation of church and state” mythology.

The Connecticut Constitution, in the clause after it established freedom of religious profession and worship for all persons in the state, stated that this right “shall not be construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the State.”  So much for the freedom of all religions!  The next section said “no preference shall be given by law to any Christian sect or mode of worship,” which meant that Christianity was virtually recognized as the state’s belief.  Its article on religion—drafted by a subcommittee of “Jeffersonian Republicans”—made it clear that even with “separation of church and state” this was a Christian constitution.  It referred to God as “the Supreme Being, the Great Creator and Preserver of the universe,” and said that “every society or denomination of Christians in this State, shall have and enjoy the same and equal powers, rights and privileges….”

Disestablishment in Connecticut was won by various denominations of “dissenting” Christians, with little help from non-Christians.  It was partly motivated by Christians’ desire to be free of domination by an established church that had been infiltrated by the false doctrines of Unitarianism.

Massachusetts had the most protracted conflict over disestablishment of any state.  As early as the middle of the 18th century, “Strict Congregational” churches joined Baptists in opposing the established Congregational churches, for they considered many members of the established church to be unconverted and did not want to pay taxes to support such a church.

The War for Independence did not bring a drive for “neutrality” among religions or for secularism.  As Stokes says, the new government’s constitution had “resonant and high sounding clauses concerning the sanctity of religion and liberty, immediately followed by others denying religious liberty in any adequate sense to many creeds and sects.”[1]  That is because they drew intellectual and moral distinctions that Stokes did not, because they knew some things about the world’s religions’ practices that he should have known.  The new state Constitution of 1780’s Declaration of Rights stated the duty of all men to worship God, “the SUPREME BEING, the Great Creator and preserver of the universe”—not any other gods.   It stated the right and principle of individual liberty of conscience in worship and religious beliefs, but qualified this by requiring that the individual not disturb the public peace or others’ religious worship.  The framers of the Massachusetts Constitution were rightly concerned to protect religious worship and the public peace; and to protect their people’s lives, liberty, persons and property against such religious practices as human sacrifice, cannibalism, infanticide, and “holy wars.”

Article III made it clear that “liberty of conscience” was not merely individualistic:

III.  As the happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion, and morality; and as these cannot be generally diffused through a community but by the institution of the public worship of God, and of public instructions in piety, religion, and morality:  Therefore, to promote their happiness, and to secure the good order and preservation of their government, the people of this commonwealth have a right to invest their legislature with power to authorize and require and the legislature shall, from time to time, authorize and require, the several towns, parishes, precincts, and other bodies politic, or religious societies, to make suitable provision, at their own expense, for the institution of the public worship of GOD, and for the support and maintenance of public Protestant teachers of piety, religion, and morality, in all cases where such provision shall not be made voluntarily.

This article also affirmed the legislature’s authority to require all subjects to attend the teachings of these Protestant ministers, if they could conscientiously do so.  It stated the equality of all Christian—but no non-Christian—denominations before the law:

And every denomination of Christians, demeaning themselves peaceably, and as good subjects of the commonwealth, shall be equally under the protection of the law; and no subordination of any one sect or denomination to another shall ever be established by law.

This article was not modified for 53 years (1833)—more than 40 years after the addition of the First Amendment to the U.S. Constitution.

As in Connecticut, the established Congregational Church in Massachusetts was weakened by the growth of rationalism within, and a division between the theologically orthodox and those who would later call themselves Unitarians.  An 1818 legal decision said that the Unitarian “society” that owned a church, not the Christian majority of the members of that church, could control that church.  This gave the Unitarians a great advantage and weakened the Congregational Church, but provided an opportunity for the growth of disestablishment thought, since orthodox Christians would not want to be legally subordinate to a church in the hands of apostates.

Not until 1831 did the legislature vote for disestablishment—but then it did so decisively.  In 1833 the state’s citizens voted nearly 3:1 to remove Article III from the state constitution and add an article favoring the equality of “all religious sects and denominations demeaning themselves peaceably, and as good citizens of the commonwealth…”

The growth of Unitarianism contributed to disestablishment, but disestablishment in Massachusetts was not produced by Unitarians or rationalists.  It was a result of the growth and work of the dissenting Christian denominations, especially the Baptists.  Episcopalians, since their church was not the established church, supported disestablishment, as did other dissenting denominations.  Probably many orthodox Congregationalists, persuaded by Baptists’ “liberty of conscience” arguments and not wanting to give the growing Unitarian faction in Congregational Churches the privileges of an established church, supported disestablishment.

Once again, disestablishment and religious liberty were the work of Christians, not of non-Christians.

New Hampshire’s 1778 Constitution’s Bill of Rights was clearly a Protestant document.  It stated that the “rights of conscience” are unalienable, and supported the individual’s right of liberty of conscience in worship and belief.  Its sixth article said the best security to government is “morality and piety, rightly grounded on evangelical principles”, and “evangelical” meant Protestant Christian.  It called for towns, parishes, and religious societies to “make adequate provision, at their own expense, for the support and maintenance of public protestant teachers of piety, religion and morality.”  It stated that “every denomination of Christians, demeaning themselves quietly, and as good subjects of the state, shall be equally under the protection of the law…”

Its Form of Government required every representative in the legislature to be “of the protestant religion,” and stated that one who left the Protestant religion would automatically cease to be a representative of his town or district.  Not until 1852—more than six decades after the ratification of the U.S. Constitution’s First Amendment—was the required two-thirds popular vote to repeal the Christian religious test oath approved.

The state’s constitutions of 1778 and 1792 did not support an established church, but by providing for local laws to support religion in effect established Protestantism.  New Hampshire continued to favor Protestantism in particular and Christianity in general for more than a century and a half after the First Amendment had been ratified.

As is evident from the states we have examined, state governments’ support of Christianity long after the addition of the First Amendment, Stokes’s comment that New Hampshire’s retention of these provisions is “inconsistent with the American tradition of impartiality of the State in matters involving the religious convictions of citizens”[2]  is without foundation in fact and foolish.

It is without foundation in fact because the evidence of American “church and state” relations throughout the era of “disestablishment” clearly indicates that the states have not been “impartial” in regard to religion or the “religious convictions” of citizens—and by the manifest intentions of their constitutions and laws should not have been so.  Neither the states’ “disestablishments” nor the First Amendment set up “impartiality” as the standard for our civil governments’ relationships to “religion” or to Christianity.  If there was any “impartiality,” it was meant to operate only among Christian denominations, or among religions whose ethics or exercise of religion did not include actions that violate others’ rights.  At most, it was impartiality among Christian denominations, with tolerance of other religions that at least conformed to Christian ethics.

It is foolish because impartiality or neutrality among religions is impossible:  Religions differ radically in their theological and ethical doctrines and requirements.  To be impartial or neutral among conflicting doctrines and requirements is to abandon logic.  It is also to commit the government to permitting adherents of disparate religions to violate others’ rights to life, liberty, person, and property.

“Impartiality” among all religions at first glance appears “understanding,” and “tolerant,” but upon closer inspection it is seen to be ignorance, amorality, and a lack of concern for others’ wellbeing.  “Impartiality” or “neutrality” neglects the horrific consequences of the free exercise of many religions that differ from Christian ethics.  Thank God we did not have a tradition of “impartiality” toward all religions!

Clearly, not only in Virginia, but also in North Carolina, New York, Connecticut, Massachusetts, and New Hampshire disestablishment and religious liberty were not the results—in any state—of popular intentions to live under “religiously neutral,” secularist, or de-Christianized civil government and laws.  In every state disestablishment and religious liberty were the results of Christian leadership and overwhelming support by diverse denominations of Christians, and in no state was “religious neutrality”, secularism, or de-Christianization a result of disestablishment.

Archie P. Jones, Ph.D., Teacher, Librarian, Author of The Gateway to Liberty: The Constitutional Power of the Tenth Amendment

[1] Anson Phelps Stokes, Church and State in the United States. 3 vols. (New York: Harper and Brothers, 1950), vol I, p. 423.

[2] Stokes, Vol. I, 432.

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We have long been told that the American “Founding” was a product of rationalism and of secularist political thought; that the states’ struggles for “disestablishment” and “religious freedom” were driven by a desire for “neutrality” among all religions, or for secularism; and that the states’ religiously “neutral” or secularist “disestablishment” and “religious freedom” were precursors of a religiously “neutral” or secularist First Amendment to our federal Constitution.  Advocates who use the Constitution’s First Amendment to establish “neutrality” among all religions, or secularism, have long used the battle for disestablishment of the Anglican Church in Virginia to advance their objective.

None of their arguments fit the evidence.  Let us consider the evidence of “disestablishment” in Virginia.

Virginia was the most famous victory for disestablishment of the Anglican Church.  The leaders of the debates in the Virginia legislature—Thomas Jefferson, James Madison, George Mason, and Patrick Henry—were all professing Christians: all Anglicans at that time.  Jefferson was still orthodox, financially supported several Christian ministries, and would not develop significant doubts about the Christian faith for a few decades.  When he did develop such doubts, he kept them secret: telling the recipients of such letters to keep their contents secret or not sending the letter.  Madison and Mason were orthodox.  Henry, the most influential man in the state, was a zealous Calvinist.

The main background of the struggle did not consist of any significant increase of rationalism (Deism, Unitarianism) or non-Christian thought, but of opposition to the spiritual laxity of the Anglican clergy by the numerous Baptists and Presbyterians, many Anglican laymen, and Methodists.  And of opposition to Anglican Church persecution of Baptists, Presbyterians, Methodists, Lutherans, and members of other “dissenting sects.”  Many Anglicans, like Madison, opposed this persecution.  Furthermore, the Anglican vestries wanted to rule their own churches, not to remain under the authority of the English church hierarchy.

The famous Rev. John Leland led the Baptists, and the Rev. Samuel Davies led the Presbyterians in the struggle for religious liberty.

Jefferson’s famous Act Establishing Religious Freedom opposed compulsory taxation of non-Anglicans to support things they didn’t believe.  Its ideas and rhetoric were clearly Christian, not rationalistic, nor religiously “neutral.”  Far from beginning the movement for disestablishment of the Anglican Church, Jefferson’s famous Act was a product of it.  Though Jefferson wrote it in 1777, it was not passed until 1786, under Madison’s, not Jefferson’s leadership.  At the time of his writing the act and his work for disestablishment, Jefferson was a professing Christian, not a closet Unitarian, nor a rationalist.  Jefferson’s religious views changed as he got older.  He was an orthodox Christian in at least the first half of his adult years—when he wrote the first draft of the Declaration of Independence (1776), served in the Virginia legislature, served as governor, and served as President (1800-1808).  The last decade or so of his life (ca. 1813-1826) he was a closet Unitarian.[1]  He was not a rationalist during Virginia’s struggle for disestablishment of the Anglican Church and for “religious liberty.”

Madison’s Memorial and Remonstrance Against Religious Assessments (1784) used Christian rhetoric and changed the Virginia public’s views from state support of “religion”—Christianity—through financial aid.  It was much more influential than Jefferson’s Act Establishing Religious Freedom.  That plus the removal of Patrick Henry, the most popular man in the state, its greatest orator, and the great advocate of state aid to Christianity—certainly not to “religion” in general—from the legislature by his being elected governor, enabled the bill to pass.

Anglicans were a distinct minority in the state, but were two-thirds of the legislature.  Most Anglicans in the legislature had been convinced by Christian writers that all churches should be equal before the law.  The dissenting ministers cleared the way for disestablishment.  The legislators who voted for disestablishment were mostly members of the Established Church.  The bill was not enacted to make Virginia law either “neutral” among all religions or secularist—and in fact did not do so.

Stokes credits Jefferson’s statement, in his 1821 Autobiography, that during the debate on his bill the “great majority” of Virginia legislators rejected a proposed amendment to the bill adding the name of Christ, so that it should read, “a departure from the plan of Jesus Christ, the holy author of our religion,” and that this proves that they wanted to include protection for the free exercise of every religion—including “the Mahometan, the Hindoo, and the infidel of every denomination.”[2]  For several reasons, this is difficult to believe:  First, This would have given legal protection to such contradictions of Virginia laws, the Christian Common Law, and Christian morality as the Mohammedan harem, “honor killings,” and jihads against unbelievers in that religion; the Hindu sutee (immolation of the wife on her husband’s funeral pyre), caste system, and parents’ right to murder their children, especially newborn daughters, via child sacrifice.[3]  Not to mention other pagan religions’ orgies, human sacrifice and cannibalism.

Second, this would have been contradicted by Article 16 of the Virginia Bill of Rights’ statement that Virginians should practice “Christian forbearance, love, and charity towards each other.”  That placed Christian ethics in a position of superiority to those of all other religions: an obvious contradiction to the idea that all religions are equal.  To have accepted the old Jefferson’s remembrance of Virginia’s legislators’ intentions, Stokes would have to have believed that most of Virginia’s legislators were ignoramuses or thoughtless, or that they were carried away by the passion of the moment.  But Virginia’s legislators were not ignorant, nor were they intellectual or moral dunces.

Third, all churches in Virginia were not on the same legal basis until 1787, a year after approval of Jefferson’s bill, when the special law incorporating the Episcopal Church was repealed.  Not until 1802—17 years after Jefferson’s bill—did the Virginia Assembly remove control of the glebe lands from the Episcopal Church.  Not until 1840—54 years after Jefferson’s bill—did a state Court of Appeals decision finally sustain the 1802 act and make “separation of church and state” complete in Virginia.

Fourth, Jefferson’s Bill for Establishing Religious Freedom did establish religious freedom  in Virginia when it was enacted (1786), but it did not remove all state support for the Anglican Church.  And it was not intended to make Virginia’s laws “neutral” among all religions (a logical impossibility, for religions have contradictory beliefs and practices), or secular (separated from all religions’ influence), or to de-Christianize Virginia’s laws:  far from it!  Jefferson’s famous Bill, #82 was part of a set of bills concerning religion apparently framed by Jefferson and approved by the committee he chaired in the Virginia General Assembly.  Bill #83 was “…for Saving the Property of the Church Heretofore by Law Established” (the Church of England).  Bill #84 was “…for Punishing Disturbers of Religious Worship and Sabbath Breakers”.  Bill #85 was “…for Appointing Days of Public Fasting and Thanksgiving”.  Bill #86 was “…for Annulling Marriages Prohibited by the Levitical Law” (the law of God revealed in the Old Testament book of Leviticus).  This package of bills—and their enactment—make it very clear that neither Jefferson nor the Virginia legislature was trying to make Virginia laws “neutral” among all religions, or secular, much less de-Christianized.

“Disestablishment” in Virginia was only removal of all legal preference for the Episcopal Church.  It was not fully achieved until 1840—54 years after Jefferson’s bill.  It was accomplished—overwhelmingly—by the efforts of Christians, particularly of the former “dissenting sects.”  It obviously was not intended to create, and did not produce “neutrality” among all religions, secularism, or de-Christianization.  It therefore is not, and cannot be either a precedent or evidence for “neutrality” among all religions, secularism, or de-Christianization of American law.

Archie P. Jones, Ph.D., Teacher, Librarian, Author of The Gateway to Liberty: The Constitutional Power of the Tenth Amendment

[1] The development of Jefferson’s religious thought is carefully set forth in Mark A. Beliles and Jerry Newcombe, Doubting Thomas?; The Religious Life and Legacy of Thomas Jefferson (New York: Morgan James Publishing, 2015), 13-184.

[2] The full quotation is given in Beliles and Newcome, 222.

[3] George Grant and Gregory Wilbur, The Christian Almanac; A Book of Days Celebrating History’s Most Significant People and Events, Second Edition (Nashville, Tennessee: Cumberland House, 2004), 541.

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In June 1776, George Mason wrote the Virginia Declaration of Rights. It declared natural rights, the essential liberties of the people, and republican government by consent of the people. The delegates to the Fifth Virginia Convention—the government after the royal governor had fled from Williamsburg—voted to accept the Declaration of Rights and a state constitution rooted upon revolutionary principles of rights and popular government.

When writing about religious liberties in the Declaration of Rights, Mason, influenced by the ideas of John Locke’s Letter Concerning Toleration, wrote, “All men should enjoy the fullest toleration in the exercise of religion according to the dictates of conscience.” This principle of religious toleration seemed liberal-minded during the time of the Enlightenment, or age of reason.

A young James Madison disagreed and offered an amendment that fundamentally altered the principle of toleration to a new and revolutionary one—religious liberty. The Declaration of Rights read: “All men are equally entitled to the free exercise of religion, according to the dictates of conscience.”

Madison’s fellow delegates accepted that freedom of religion was an inalienable right (and a duty to God), but they were unwilling to accept that Madison’s amendment disestablished the official Anglican Church as part of the constitution-making. Nevertheless, Baptists, Presbyterians, and Lutherans began flooding the House of Delegates with petitions calling for disestablishment. The legislature responded to the demands of their constituents, relieving dissenters of paying taxes for the support of the Anglican Church.

In early 1777, Thomas Jefferson joined the cause of religious liberty in Virginia. Jefferson believed that the Virginia constitution had a variety of shortcomings and won appointment to the committee to revise the state laws with George Wythe and Edmund Pendleton. Jefferson’s object was to eradicate “every fiber…of ancient or future aristocracy.”

As an Enlightenment thinker, Jefferson believed that religion was a matter of reason and equated religious liberty with a free mind. Jefferson penned a bill for disestablishment in 1777 but did not present it to the legislature. Jefferson’s Bill for Establishing Religious Freedom was introduced in the House of Delegates in June 1779.

The preamble asserted that “Almighty God hath created the mind free,” and thus was free from restraint by the civil government. The bill would enact disestablishment as Jefferson affirmed, “The opinions of man are not the object of civil government.”

The bill, however, was soundly defeated. Many Virginia founders including Patrick Henry, Richard Henry Lee, John Marshall, Pendleton, and initially, George Washington, supported a general assessment, or tax money, to be allocated to a denomination of a person’s choice or to schools and education rather than religion. They argued that republican government depended on the virtue of the citizenry and leaders, and that virtue was primarily encouraged by religion. The general assessment bill did not establish a particular denomination or even Christianity broadly as the state religion, but rather sought to support religion to inculcate virtue for republican self-government. The House passed a resolution for the bill in 1784, and Henry chaired the committee to draft it.

Jefferson and Madison (neither of whom was especially known for his piety) formed an improbable alliance with an array of dissenting religious groups including Baptists, Methodists, Quakers, and Presbyterians to fight the general assessment. Both sides of the debate wrote petitions to the House to influence the outcome.

Madison weighed in on the debate, anonymously writing the highly influential “Memorial and Remonstrance Against Religious Assessments.” He wrote: “The religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right.”

The Virginia Statute for Religious Freedom passed into law on January 6, 1786. The Assembly enacted the idea into law that:

No man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burdened in his body or goods, nor shall otherwise suffer, on account of his religious opinions or beliefs….We are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind.

Jefferson and the legislature then made the law and the principle of religious liberty a fundamental right that could never be revoked by a future legislature, binding future generations to the rights of man. “If any act shall be hereafter passed to repeal the present or to narrow its operation, such act will be an infringement of natural right.”

Most states pursued religious liberty as a fundamental right and disestablished their churches, though not all did, because of principle of federalism in the U.S. Constitution. In the 1830s, Massachusetts became the last state to disestablish. But, the American Revolution and founding advanced both civil and religious liberty for the American people.

Tony Williams is a Constituting America Fellow and a Senior Teaching Fellow at the Bill of Rights Institute. He is the author of six books including the newly-published Hamilton: An American Biography.

 

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At the time of the Revolution, Americans had shown that established churches could co-exist with free exercise of religious conscience. Still, religious restrictions on holding office, requirements to attend some religious service and financial support of the colony’s official church through taxes remained. Of those, as might be expected, the last was the most reviled by the public and, thereby, most easily attacked by willing politicians. It is on that ground that disestablishment of most colonial churches was initiated during the Revolutionary and Early Republican periods.

The Southern colonies, especially, moved to disestablish the official status of the Anglican Episcopal Church. North Carolina began the process in 1776, followed during the war by New York, Maryland, and South Carolina. There also began a decade-long struggle in Virginia towards that end. The Virginia constitution of 1776 declared, “THAT religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence, and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience ….” Thus was protected free exercise, but the established church yet survived. After the war, demands increased to disestablish the Episcopal Church, tainted by its connection to the Church of England. In 1784, the popular governor, Patrick Henry, proposed his “Bill Establishing a Provision for Teachers of the Christian Religion.” This would have protected de facto the preferred position of the Episcopal Church even if formal disestablishment were to occur, because it had the majority of pastors. Madison helped defeat the bill with his “Memorial and Remonstrance against Religious Assessments” when it came up for a vote in 1785. Madison was motivated in part by what he perceived as continuing persecution of religious dissent, despite the state constitution’s high-sounding declaration. He fulminated in 1784, “That diabolical, Hell conceived principle of persecution rages among some and, to their eternal infamy, the clergy can furnish their quota of imps for such business.” Finally, on January 16, 1786, the legislature adopted Jefferson’s Statute of Religious Liberty, to disestablish fully the Episcopal Church.

On the other hand, the deeply engrained theocratic tradition in New England prevented complete disestablishment of the Congregational Church. The Massachusetts Constitution of 1780 had a strongly pious Preamble, and in Article II of its Declaration of Rights asserted not only the right, but the duty, of everyone “publickly, and at stated seasons, to worship the SUPREME BEING, the Great Creator and Preserver of the Universe.” To be sure, no one would be punished for worshipping God according to the dictates of his conscience. But worship, one must. Article III emphasized the classic republican connection among good government, religion, and morality. This connection could only be maintained by the “publick worship of God, and…publick instructions in piety, religion and morality.” Accordingly, the legislature was directed to require the “towns…and other bodies politick, or religious societies” to provide financial support for such public worship and for “the support and maintenance of publick protestant teachers of piety, religion and morality.” Moreover, the people, acting through their legislature, could compel attendance at these services.

These blunt commands were softened by allowing those paying the support to direct that the funds go to a religious teacher of their own denomination whose services the taxpayer attended. If there was none, the funds went to the support of teachers the parish selected. Most likely, those selected would belong to the Congregational Church, in light of its dominance among the populace. As well, the same article prohibited the formal legal subordination of one denomination to another. This partial disestablishment of the Congregational Church was largely undermined by the support provision. Adherence to proper religious doctrine was also enforced for state officials through their declaration before taking office that they “believe the christian [sic] religion, and have a firm persuasion of its truth.”

By the time the Constitution was adopted, most states had fully disestablished their churches, though Massachusetts, Connecticut, New Hampshire, Maryland, and North Carolina retained some provision for mandatory taxation for the religion of one’s choosing. At the state ratifying conventions, many delegates had expressed fear that Congress might establish a national religion. The first Congress in 1789 debated a proposed Bill of Rights. Madison included a provision that no one’s rights should be abridged by Congress on account of religion, and that no national religion shall be established. The right of conscience was also protected in another section against invasion by the states. Significantly, the draft said nothing about state religious establishments. Elbridge Gerry of Massachusetts objected to “national” as implying that the United States was a consolidated entity, rather than a confederation. In response, the Report of the House Committee altered the language to “no religion shall be established by law.” The sections protecting the rights of conscience against infringement by Congress and the states, respectively, were unchanged. There still was no language about state religious establishments.

The amendments adopted by the House once more changed the language. Congress was disabled from establishing religion or prohibiting its free exercise. The rights of conscience were expressly protected once more against infringement by either Congress or the states. Yet again, no such language addressed state religious establishments. The clear implication of the language, then, was that states were not prohibited from having official churches, as long as the rights of conscience were maintained, but that Congress could not establish a church for the United States.

The Senate adopted its own amendments. The relevant provision prohibited Congress from “establishing articles of faith, or a mode of worship, or prohibiting the free exercise of religion.” The House’s restriction on interference with the rights of conscience by the states was dropped. A conference between House and Senate developed the language submitted to the states for approval. The Senate’s establishment language was seen as too weak, as it opened the door for Congress to fund a religious body, thereby creating an established church through the back door of preferred financial support. In turn, the House’s language that restricted state legislative power was deemed contrary to the purpose of the Bill of Rights, namely, to limit the general government. The result was, as Supreme Court justice and professor of constitutional law at Harvard, Joseph Story, wrote later in his influential Commentaries on the Constitution of the United States, “[The] whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice, and the state constitutions.” Further, Story wrote, “The real object of the amendment was, not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government…. [The] Catholic and the Protestant, the Calvinist and the Arminian, the Jew and the Infidel, may sit down at the common table of the national councils, without any inquisition into their faith, or mode of worship.”

However, simply adopting in isolation the House’s language that merely prohibited Congress from establishing religion would suggest that Congress could disestablish existing state churches.  That possibility ran counter to the federal nature of the union and endangered adoption of the amendments by undermining support in New England. That produced the awkward language that “Congress shall make no law respecting an establishment of religion.” Congress shall not establish formal religious orthodoxy through a national church, such as the overall still dominant Episcopal Church; at the same time, Congress, likely to be dominated by adherents of that church, shall not make it its business to disestablish existing state churches. The clause, one might say, incorporates a principle of antidisestablishmentarianism, too. Free exercise of religion (but not of non-religion) was fully embraced even in New England by the late 1780s, though it took several more decades of controversy to disestablish fully the Congregational Church in Connecticut (1819) and Massachusetts (1833).

Today, determining the scope and meaning of the establishment clause in controversies far removed from imprisonment for dissent, civil disabilities for attending prescribed religious services, or direct funding of specific ecclesiastical bodies has proved difficult for the Supreme Court. The clause retains both aspects of disestablishment and of its opposite. Religious test oaths are forbidden, which also means that one’s position even as a leader of a religious denomination is not a disqualifier from political office. The recent questioning by Senators Kamala Harris and Maizie Hirono of a nominee to the federal bench about his fitness for office due to his membership in the Catholic Knights of Columbus at least violates the principle behind the prohibition of such oaths.

As well, the Supreme Court has frequently reminded courts and legislatures that the establishment clause prohibits laws that demonstrate hostility to religion. Indeed, government may take a position of benevolent neutrality towards religion and may (and sometimes must) accommodate the actions of religious believers in otherwise neutral laws of general applicability. Certainly, contrary to some exaggerated assertions based on a hasty metaphor in a politically-charged letter by Thomas Jefferson, the clause does not represent a strict principle of an “impenetrable wall of separation” between church and state. Rather, the establishment clause originally represented a limit on the general government to interfere with institutions that represented the sovereign authority of the people of the states, either by displacing them with a superior national church or by prohibiting them (or, even worse, just some of them) directly. The free exercise clause (and its ubiquitous counterparts in the state constitutions) protected the individual rights of conscience and free exercise of religion, a distinction that Justice Clarence Thomas has emphasized. Today, the establishment clause attempts to strike a balance between, on the one hand, the importance to republican government of fostering the natural human inclination to religion and association in religious communities and, on the other, the social instability that historically has occurred when the realm of Caesar is fused to a particular conception of God, as well as the inevitable corruption of religious doctrine and institutions that results from dependence on government favors.

Let the unabashedly left-wing Justice William Douglas have the last word. He wrote in 1952 in Zorach v. Clausen, “The First Amendment, however, does not say that in every and all respects there shall be a separation of Church and State…. Otherwise the state and religion would be aliens to each other—hostile, suspicious, and even unfriendly…. We are a religious people whose institutions presuppose a Supreme Being…. When the State encourages religious instruction…, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe.”

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

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In the history of human society, religion and politics have almost inevitably been intertwined. Those in control of the organs of government seek to harness for their own legitimacy and power the natural human longing to participate in a project that transcends one’s everyday life. Religious belief and participation in religious ceremonies satisfy that personal longing, while they are also useful tools to control the actions of the populace and sustain the social order. Because politics has those same objectives of control and order, the levers of religious and political power not infrequently have been held by the same hands. The normal outgrowth of this is an officially-recognized religious dogma with approved outward manifestations, along with suppression, to different extents, of those who would deviate from the true path. In similar vein, those who would dissent from religious orthodoxy often make common cause with those who would challenge the reigning political faction.

In the medieval Christian West, there was a formal separation between the religious and political spheres, represented by Pope and Emperor, which reflected Jesus’s teaching about the superior domain of God and the profane (in the classic meaning) temporal world. However, there, too, the reality was different, in that those entrusted with the care of the soul often participated in power politics. The Pope and his control over the Papal States, the various warrior-bishops in the Holy Roman Empire, the English House of Lords Spiritual and Temporal, and the Archbishop/Electors that chose the Holy Roman Emperor come to mind. As well, secular rulers frequently attempted to influence, by various means, the selection of the Pope and subordinate clergy, and to secure the endorsement of the administrators of the spiritual realm for immediate political goals. The “Babylonian Captivity” of the popes at Avignon under the control of the French king is a prime example.

The end of feudalism and the emergence of the modern State were marked by increased wealth of the political rulers and by centralization of power in the person and the office of the king. In that era of royal absolutism, competing centers of power which might dilute the king’s ability to lay sole claim on the subjects’ loyalties had to be made to submit. Thus, the nobility, stripped of its important ancient privileges, increasingly became courtiers residing at the monarch’s court, where they were more easily controlled. The clergy, too, had to be neutralized. Much is told about King Henry VIII’s project to reduce the Catholic Church to the Church in England and, later, the Church of England–with the monarch as its head. Henry was not alone. With the shattering of the Universal Christian Church by the Reformation, the Holy Roman Empire’s superficial political universality came under pressure. The constituent duchies, principalities, and other assorted noble enclaves aligned based on religion, often for reasons of the rulers’ political ambitions. The specter of religious warfare induced the various parties to adopt the principle of cuius regio, eius religio, that is, the religion of the ruler (Catholicism or Lutheranism) would be the religion of the ruled. Those who did not wish to follow their rulers’ lead could emigrate to a more sympathetic realm; otherwise they might be subject to persecution.

With the vessel of religious universality broken, the essentially anarchistic imperative of Protestantism (“sola scriptura”) led to the formation of various sects beyond the relatively conservative Lutherans and the even more traditional Anglicans. Despite the establishment of the Church of England, the struggle between Anglicanism and Catholicism continued during the 16th and 17th centuries, as various English monarchs favored one or the other. Calvinist Presbyterians, nominally dissenters in England, also had a brief turn in power, through the person of James I Stuart, who had become the head of the Presbyterian Church of Scotland during his tenure as King of Scotland. Excluded from political power were adherents of various dissenting sects, such as Anabaptists and Quakers, and, except during the Oliver Cromwell “Protectorate,” other Calvinists. Their radicalism was seen as subversive of the existing order. Those and other dissenters primarily belonged to the middle classes of artisans, farmers, and merchants.

The common denominator in most European polities was the formal establishment of a particular Christian denomination and the suppression of dissenting views. There were exceptions, however. For example, the 17th century United Provinces of the Netherlands established the Dutch Reformed Church as the official religious body, yet broadly tolerated free exercise of religion even by non-traditional Christians and by Jews. This policy of relative tolerance attracted many adherents of persecuted faiths to the Dutch Republic. It also presented an alternative model to that of most state churches at the time, namely, that officially established state churches need not result in suppression of dissent.

Among the English dissenters were two groups of Calvinists, the “Pilgrim Fathers” and the “Puritans.” While the former sought to separate themselves from the Church of England, the latter hoped to purify it from within by continuing to associate their congregations with the official church. They abandoned that policy after the Restoration and became the Congregational Church. Both groups established settlements in New England. Despite their geographic proximity, their theological differences–though perhaps trivial to an outsider–kept them distinct for several decades, until the Pilgrims’ Plymouth colony was absorbed by the much larger Massachusetts Bay Colony in 1690.

In popular myth, Europeans came to British North America in search of religious freedom, which they heartily extended to all who joined them. The truth is more complex. The Pilgrims and Puritans, for example, indeed came for religious freedom, but for themselves only. Conformity in community, not diversity or toleration of dissent, was the goal. God’s law controlled, and governance was put in the hands of those who could be trusted to be faithful to the ultimate objective, the realization of the City of God on Earth.

As the Pilgrims’ “Mayflower Compact” of November 11, 1620, stated, “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 ….” Puritan colonies in New England similarly strived for their goal to “lead the New Testament life, yet make a living,” as the historian Samuel Eliot Morison summarized it. 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 theocratic nature of the 17th century New England societies meant that they limited new settlers to those who belonged to their approved strain of Puritanism. Those numbered many thousands, however, as the Massachusetts Bay Colony grew to 10,000 within four years. 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 religious congregationalism that was at the core of the Puritans’ anti-episcopalism and which justified their expulsion of dissenters from their religio-political commonwealth also caused those dissenters to form communities of like-minded believers. Some of them, such as the famous dissenters Roger Williams and Anne Hutchinson, founded settlements in what became Rhode Island. Unlike Massachusetts Bay, these new settlements allowed freedom of conscience and lacked the official religion of other New England settlements.

During the English rule, at least nine colonies had formally established churches, generally the Anglican Church, and all required office holders to be at least Christians. However, other colonies’ founding had lacked the theocratic imperative of New England. While the Anglican Church enjoyed economic and political benefits from its established position, freedom of conscience and practice was extended to other Protestant denominations. Rhode Island, Pennsylvania, and South Carolina were founded with the deliberate goal of protecting peaceable religious practice. Other colonies, seeking to attract as many settlers as possible for the financial gain of investors (Virginia, New York) or proprietors (New Jersey, Maryland, Georgia) had pragmatic reasons to tread softly on the issue of religious orthodoxy.

The position of Catholics and Jews to practice their faith was more tenuous. In England, the Bill of Rights adopted in 1689 officially declared the country a “protestant” realm and prohibited the monarch from being, or being married to, a Catholic, a prohibition reinforced in the Act of Settlement of 1701. Similarly, only Protestants were guaranteed the right to bear arms. Other statutory restrictions on Catholics, Jews, and non-trinitarian Christian sects remained in place well into the 19th century.

In North America, even enlightened charters demonstrated the limits of religious tolerance. Colonial Pennsylvania rightfully has had a reputation for religious liberality. Thus, its 1701 Charter of Privileges declares that no person “who shall Confess and acknowledge one Almighty God…shall be in any Case molested or prejudiced in his or their person or Estate because of his or their Conscientious perswasion [sic] or Practice” or to attend any religious worship or do anything else contrary to their religious beliefs. Nevertheless, that same charter, as well as Pennsylvania’s lengthy “Frame of the Government” in 1682, contained a ubiquitous feature of such constitutions, the religious test oath or affirmation, in this case that all government officials had to “profess faith in Jesus Christ.” Maryland’s Toleration Act of 1649 recognized freedom of worship for anyone “professing to believe in Jesus Christ. However, the Act also provided for the death penalty for blasphemy or “[denying] our Saviour Jesus Christ to bee the sonne of God, or shall deny the holy Trinity the father sonne and holy Ghost.”

The formal establishments remained during the 18th century. However, the enforcement of religious conformity and suppression of dissent was undermined by the growth of the populations from many different European countries, the diversity of their religious beliefs, the relative isolation of settlements due to the large size of the colonies outside New England, and the scarcity of Anglican clergy and absence of a strong hierarchy. True, local communities might be remarkably homogeneous. In the colony at large, Quakers might be attracted to Pennsylvania for shared religious values, Catholics to Maryland, and Congregationalists to New England. Anglicans might be the majority in most colonies. Yet, the variety of sects within a colony and, even more pronounced, across the several North American colonies, combined with the general desire for material success, made tolerance a pragmatic policy. Eventually, pragmatic necessity became aspirational virtue. It must not be overlooked, however, that even the most tolerant polities had no use for skeptics, agnostics, or atheists. There was no Inquisition; the reality was more akin to “don’t ask, don’t tell.” Nevertheless, freedom of religion did not mean freedom from religion.

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

 

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In thinking about what the Declaration of Independence meant for state powers, perhaps the better question is what powers didn’t the states have upon their independence? Consider the very first line and note what is emphasized: “The unanimous Declaration of the thirteen united States of America.” This is telling. Why use “unanimous” if all the states were considered one entity? Importantly, “united” is not emphasized. This also occurs in the last paragraph of the document with the reference to the “Representatives of the united States of America, in General Congress, Assembled…” “Nation” only appears once in the Declaration, and it refers to England, not America. Rather than “nation,” the reference used twice is “Free and Independent States.” Indeed, during this time and up until the Constitution was ratified, the United States was cast as a plural entity. So, if we were going to war with France, the wording would not be “the United States is going to war”, but “the United States are going to war…”

The Declaration clearly calls for the independence of thirteen new nations, not one—“a baker’s dozen of new nations,” as Willmoore Kendall put it, thirteen free and independent states.  What the Declaration meant for the powers of the states was that the states being free and independent, each state had the powers any nation is entitled to, but since God has given man ethical laws in nature and in His laws revealed in Scripture (“the laws of nature and of nature’s God”), no nation and no state is entitled to powers which violate the laws of nature and of nature’s God, nor are the people of any state justified in consenting to any powers that violate the laws of nature and of nature’s God. The Declaration leaves the form of civil government chosen by the people or the representatives of the people of each state up to the representatives and the people of that state. Each must choose for itself a form of government and powers of government which are consistent with preserving the laws of nature and of nature’s God, and thereby preserving the people’s freedom. The people of each state are justified in framing their own particular constitution, civil government institutions, and laws so long as they do not violate the laws of nature and of nature’s God.

The Declaration of Independence was both produced by the states and produced the states.  The colonies’ (then states’) representatives in the Continental Congress produced it.  It is a tremendously important but often misinterpreted document.  There was not a government of the thirteen united States. The Continental Congresses did not have the authority to require the states to do anything; the respective states’ legislatures had to decide whether to act on the recommendations of the Continental Congress. The Continental Congress was based upon the equality of all states, not upon the will of the majority of the people who live in all those states. There was no vote of the people of the States and no attempt to determine the majority will of the people who lived in those thirteen states. The Declaration was unanimous because the representatives of the people of each state agreed upon it, not because the majority, or all of the people, of all the states agreed to it.

Colonists started talking about independence in 1774, but no original powers of legislation were granted to the Congresses of 1774 and 1775. The government was temporary only; it was permitted only for a particular and temporary object, and the States could at any time recall any and every power which it had assumed. Nothing in the powers employed by the revolutionary government, as far as can be seen from its acts, is inconsistent with the sovereignty and independence of the States. Regarding external relations, Congress seemed to have exercised every power of a supreme government. They declared war; formed alliances and made treaties; contracted debts and issued bills of credit. These powers were not “exclusive” though. The colonies raised troops, commissioned vessels of war, and conducted military operations. In conducting the war Congress had no “exclusive” power, and the States retained, and asserted, their own sovereign right and power to do that. Congress exercised no power reducing the absolute sovereignty and independence of the States.  Many powers entrusted exclusively to Congress could not be effectively exercised except by the aid of the State governments. The States raised troops required by Congress. Congress was allowed to issue bills of credit, but not make them a legal tender. Nor could it require the States to redeem them, nor raise by its own authority the necessary funds for the purpose. In these and other important functions, the “sovereignty” of the Federal Government was merely nominal; its efficiency was wholly due to the co-operation of the State governments. The relation between the colonies and their Congress did not change once independence was declared. The chief difference was that the relation was now between the States and their Congress.[1]

Although the powers actually assumed and exercised by Congress were very great, they were not always allowed by the States. Thus, the power to lay an embargo was earnestly desired by Congress, but was denied by the States.[2] The Continental Congress was not a central government of the newly independent States.

There was no central government until the Articles of Confederation in 1781—five years after the colonies issued the Declaration. Even under the Articles of Confederation, it was clear that the states were intended to have the vast majority of civil government power. Article II (of the Articles) clearly stated that “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.”

Article III established the United States as a league of states that emphasized the right of each state to govern its own internal affairs. It was “a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare…” The purpose of the Confederation was clearly defensive. It was deliberately left for each state to determine for itself how to order its own internal affairs.

Article VI limited the powers of the central government. Centralized power is incompatible with federalism and a confederate form of government. The power must be spread out and limited.

Article VII authorized state control of military ranks. The federal army was to be a very small standing army, supplied by the state militias.

Article VIII. Each state’s taxes were to be determined by the legislature of that state—not by the central government.

Article IX declared what the rights of the central government were. It meant that each state was a sovereign nation that had to be considered in forming any common governmental system for the peoples of the states to live under. The primary powers the central government had under the Articles were to declare war against foreign powers; establish standard weights and measures; mint coins and print currency; and serve as a mediator in all disputes between the states.

The Articles of Confederation was our first national constitution. The newly independent states created it because they recognized their weakness compared to European nations—and wanted to be able to defend themselves against attempts by other nations to conquer them.  They made their first constitution a confederacy because they wanted to continue to rule their own internal affairs, but still be able to join with the other states to defend against foreign aggression—based on religion or any other causes.

Although it was not ratified until March 1781, it was given to Congress in November of 1777, and it was essentially the structure of government that the United States operated under all through the War of Independence. In 1779, the Continental Congress passed a resolution acknowledging the operating status of the Articles prior to its being fully ratified by the states in 1781.[3]

The states declared their independence in order to be and remain independent, self-governing states. Their Declaration of Independence is neither our fundamental governing document nor the controlling authority for American civil government, law, and politics.  It is simply our original states’ declaration of their right to fight for their respective independence from England and of their equal status as free, independent nations. They created the Articles of Confederation to maintain their individual sovereignty, but to provide their united military power. When government under the Articles proved defective, many in the states sought to create a stronger central government; many others feared that the new central government would be too strong. The new governmental system that the colonies established under the Constitution was meant to retain the great majority of governmental power in the respective states, not to centralize power in the new, limited national government, nor to enable future officials in that government to centralize power. Those who advocated ratifying the finished Constitution insisted that the new central government did not and would not be a threat to the powers of the states.

Jennie Jones, Instructor of Government and History, Weatherford College

[1] Abel P. Upshur, The Federal Government: Its True Nature and Character; Being a Review of Judge [Joseph] Story’s Commentaries on the Constitution of the United States (New York: Van Evrie, Horton & Co., 1868), Reprinted by St. Thomas Press, Houston, Texas, 1977, p. 64-65

[2] Upshur, p. 66

[3] Dr. George Grant, Ph.D. Lit., King’s Meadow Humanities Curriculum: American Culture, Instructor’s Guide (Franklin, Tennessee: King’s Meadow, 2011). p. 202, 293

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In declaring their independence from the British Empire, “the Representatives of the united States of America” acted “in the Name, and by Authority of the good People of these Colonies.” The “United Colonies are, and of Right ought to be, Free and Independent States.” Plural, not singular. But also united: as one of Mr. Shakespeare’s characters says, there’s the rub. The American States are free and independent respecting Great Britain. But are they free and independent respecting one another? And if so, to what extent? “As Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and do all other Acts and Things which Independent States may of right do,” but may they do these things severally, without regard to each other, or only as a united body? What is the character of the American Union?

Notoriously, Abraham Lincoln and Jefferson Davis later would find themselves in disagreement over this matter. But in the generation between the founding and the Civil War, a slaveholding Southern democrat, and Democrat, delivered a cogent analysis of America’s constitutional Union, promising to enforce the terms of that Union as he understood them. No one doubted that he would; Andrew Jackson was not a man to be crossed.

In 1828, Congress enacted a tariff law, one so sharply resented that South Carolinians, led by John C. Calhoun, called it the “Tariff of Abominations.” Calhoun resigned from the vice presidency and entered the Senate to fight the tariff. By the early 1830s, South Carolina handed Jackson a serious constitutional crisis.

Jackson was far from an enemy of States’ rights. In his First Inaugural Address of March 1829 he had announced that “In such measures as I may be called on to pursue in regard to the rights of the separate States I hope to be animated by a proper respect for those sovereign members of our Union, taking care not to confound the power they have reserved to themselves with those they have granted to the Confederacy”—that is, the federal government. Nine months later, in his First Annual Message, he praised the Framers’ design, which consisted of a federal government with “limited and specific, not general, powers”; “it is our duty,” he continued, “to preserve for it the character intended by its framers.” “We are responsible to our country and to the glorious cause of self-government for the preservation of so great a good.” This being so, “the great mass of legislation relating to our internal affairs was intended to be left where the Federal Convention found it—in the State governments.” He warned Congress “against all encroachments upon the legitimate sphere of State sovereignty.”

Nullification of duly enacted federal laws was another matter, however. As early as the Jefferson Day Dinner in April 1830, Jackson fixed Calhoun with his formidable stare and toasted “Our Federal Union—it must be preserved.” The warning went unheeded; indeed, the nullification movement spread to other Southern states. On November 1, 1832, South Carolina solemnly nullified the tariff law, threatening to secede from the Union if the federal government moved to enforce it. South Carolina, the state legislators intoned, “will forthwith proceed to organize a separate government and to do all other acts and things which sovereign and independent states may of right do”—thus echoing the language of the Declaration of Independence without noticing its underlying principle of unalienable natural rights.

In his Fourth Annual Message of December 1832, by which time he had been duly elected to a second term in office, Jackson reported that “in one quarter of the United States opposition to the revenue laws has arisen to a height which threatens to thwart their execution, if not to endanger the integrity of the Union.” He followed this a few days later with a proclamation refuting Southern pretensions. To claim a constitutional right to nullify federal laws as unconstitutional, “coupled with the uncontrolled right to decide what laws deserve that character, is to give the power of resisting all laws; for as by the theory there is no appeal, the reasons alleged by the State, good or bad, must prevail.” But the Constitution, the supreme law of the land, provides only two appeals from allegedly unconstitutional federal laws: judicial review and constitutional amendment. If the South Carolina doctrine “had been established at an earlier day, the Union would have been dissolved in its infancy.”

Jackson then reviewed the history of the American Union as defined and refined during the Founding period. The Union, he observed, predates not only the Constitution but the Declaration of Independence. In October 1774, the First Continental Congress met in Philadelphia in response to legislation enacted by the British parliament and king. After the Boston Tea Party, Britain aimed to punish Massachusetts by curtailing citizens’ rights—suspending the right to jury trials, among other measures. Calling these the “Intolerable Acts,” the delegates set down the Articles of Association, boycotting British imports (including slaves) and suspending American exports to England. To reinforce these proposals, Congress recommended sumptuary restrictions: no “shows, plays, and other expensive diversions and entertainments,” including horse races and cock fights. These curtailments of consumption would back the restrictions on trade. Congress further proposed the formation of local committees to expose violations of these policies—effectively enforcement by shaming. In Jackson’s words, “they agreed that they would collectively form one nation for the purpose of conducting some certain domestic concern and all foreign relations.”

The Articles of Association amounted to a treaty among the colonies, not a government. Two years later, the Declaration of Independence anticipated redefining the Union on governmental lines. Describing Americans as “one People,” the Signers announced that the United States were ready “to assume among the Powers of the Earth, the separate and equal Station to which the Laws of Nature and of Nature’s God entitle them.” All independent peoples are entitled to such a “station” or status because “all Men are created equal”—”endowed by their Creator with certain unalienable Rights,” among which number “Life, Liberty, and the Pursuit of Happiness.” If a group of such equal persons consent to a government that does what governments rightly do—aiming to secure those rights—then they deserve diplomatic recognition from other peoples so organized. Conversely, governments that fail to secure those rights forfeit that consent. The long list of grievances against the British king and parliament that follows provides a sort of photographic negative of justly used governmental powers. These include the power of declaring war, settling peace, domestic legislation, and government by law with an independent judiciary. The abuse of those powers by the British government rightly led to disunion; union, by implication, requires their proper use within the framework of the Laws of Nature and of Nature’s God by the consent of the people.

After vindicating their claim of independence on the battlefield (Jackson had been one of the militiamen, at the age of thirteen), the Americans further defined the terms of their Union with their first constitution, the Articles of Confederation. In Jackson’s words, the states thereby pledged to “abide by the determinations of Congress on all questions which by that Confederation should be submitted to them,” with no state entitled to “legally annul a decision of the Congress or refuse to submit in its execution,” although the Articles provided no means of enforcing this provision. Inasmuch as the 1787 Constitution formed “’a more perfect Union’ than that of the Confederation,” how could that law permit the Union to backslide beyond even the unenforceable Union enacted under the Articles?

“I consider, then, the power to annul a law of the United States, assumed by one State, incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed.” More, “this right to secede”—which Jackson clear-sightedly perceived as inherent in the assertion of the sovereign right to annul—“is deduced [by the nullifiers] from the nature of the Constitution, which, they say, is a compact between sovereign States who have preserved their whole sovereignty and therefore are subject to no superior.” But Jackson correctly identifies the American people as the sovereigns, not the state or federal governments, and under the Constitution the executive is charged with enforcing federal law. “The Constitution of the United States…forms a government, not a league; and whether it be formed by compact between the States or in any other manner, its character is the same.” That government “operates directly on the people individually, not upon the States,” as it had under the Articles.

“It is the acknowledged attribute of free institutions that under them the empire of reason and law is substituted for the power of the sword.” As argued in the Declaration of Independence (and earlier by John Locke and other natural-rights philosophers), it “needs not on the present occasion be denied” that “a State or any other great portion of the people, suffering under long and intolerable oppression and having tried all constitutional remedies without the hope of redress, may have a natural right, when their happiness can be no otherwise secured, and when they can do so without greater injury to others, to absolve themselves from their obligations to the Government and appeal to the last resort,” namely, the force of arms. The right to revolution under such circumstances is a right not only of Americans but “a right of mankind.” “It is not the right of the State, but of the individual, and of all the individuals in the State.” “Like any other revolutionary act,” secession “may be morally justified by the extremity of the oppression; but to call it a constitutional right is confounding the meaning of terms,” inasmuch as “a compact is an agreement or binding obligation.” If that compact “contains no sanction, it may be broken with no other consequence than moral guilt,” as a league among independent nations might be broken; “a government, on the contrary, always as a sanction, express or implied, and in our case it is both necessarily implied and expressly given” in the provision made “for punishing acts which obstruct the due administration of its laws.” The name for “an offense against sovereignty” is treason. Jackson charges that the nullifiers’ “object is disunion…. Disunion by armed force is treason,” and Jackson leaves no doubt that he will use his executive power as president of the United States to punish its perpetrators accordingly. Thus Jackson clearly defines popular sovereignty not as a principle justifying the political superiority of the States over the federal government (as nullifiers and secessionists did), nor as a principle justifying might-makes-right majority rule of a nation over the states (as Stephen Douglas would later do), but as an instrument justified only by its adherence to the standard of natural rights. The sovereign people have divided their sovereignty between the States and the general government; accordingly, States’ sovereignty and States’ rights are limited to those objects the united people did not assign to the federal government; the federal government, for its part, is limited to the powers enumerated by the Constitution and ratified by the people. “It is not for territory or state power that our Revolutionary fathers took up arms; it was for individual liberty and the right of self-government.”

In a letter to Congress in January 1833, Jackson warned that “If these measures can not be defeated and overcome by the power conferred by the Constitution on the Federal Government, the Constitution must be considered as incompetent to its own defense, the supremacy of the laws is at an end, and the rights and liberties of the citizens can no longer receive protection from the Government of the Union.” With no major source of revenue other than the tariff, the federal government itself would shrivel and collapse and the states would take over the rule of the people resident within them. Citing the Constitutional obligation of the Executive to “take care that the laws be faithfully executed,” Jackson signed the “Force Bill” on March 3, 1833, the day before his Second Inaugural Address. In the words of his most recent biographer, Bradley S. Birzer, he then “called up militias, ordered three divisions of artillery to South Carolina, gave General Winfield Scott command over Charleston Harbor, ordered the reinforcement of Charleston’s federal forts, and placed naval warships just offshore.” In the Address, he wrote that “The eye of all nations is fixed on our Republic. The event of the existing crisis will be decisive in the opinion of mankind of the practicability of our federal system of government.” Taking notice, South Carolina backed down.

By the time of his Farewell Address four years later, Jackson could assert with confidence, “Our Constitution is no longer a doubtful instrument, and at the end of nearly a half century we find that it has preserved unimpaired the liberties of the people, secured the rights of property, and that our country has improved and is flourishing beyond any former example in the history of nations.” He nonetheless warned, “We behold systematic efforts publicly made to sow the seed of discord between different parts of the United States and to place party divisions directly upon geographical distinctions; to excite the South against the North and the North against the South, and to force into controversy the most delicate and exciting topics—topics upon which it is impossible that a large portion of the Union can ever speak without strong emotion.” Jackson does not deny the wrong of slavery, only that the consequences of disunion would be worse, reintroducing the likelihood of international war to North America without liberating the slaves. Recalling the Farewell Address of his most distinguished predecessor, he asked, “Has the warning voice of Washington been forgotten, or have designs already been formed to sever the Union?”

Will Morrisey is William and Patricia LaMothe Professor Emeritus of Politics at Hillsdale College, and is a Constituting America Fellow; his books include Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government.

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American Revolution and Expanding the States – How the American Revolution and nationhood voided the Proclamation Line of 1763, allowing expansion for American settlement of the Western frontier

In 1763, with “the scratch of a pen,” North America had changed forever.[1] After years of looming as an ever-present danger, the French threat had finally been removed from Canada and the lands east of the Mississippi. The territory had been hard won as a result of the 1763 Treaty of Paris that formally ended the French and Indian War waged on the British colonies’ western frontier since 1754. “That Enemy who hath so long stuck like a Thorn in the Sides of our Colonies is removed,” wrote Massachusetts governor Francis Bernard; now “North-America” was “[e]ntirely British.”[2] Native American unrest followed. That same year, the newly crowned King George III, fearful of further rebellion and citing it as “essential to our Interest,” stopped western expansion with a theoretical line on a map that ran through the Appalachian Mountains (which run from modern day Canada to Alabama).[3] The Proclamation of 1763, as it was known, barred Americans from collecting their promised spoils of war, and unknowingly became one of the American Revolution’s earliest causes.

The French and Indian War had been fought globally, but had been ignited in America over disputed lands just west of the Appalachians that the British, French, and Natives each believed to be rightfully their territory. At the center of the outbreak was a twenty-two-year-old Lt. Col. George Washington of the Virginia Militia, whose expedition and skirmish in the area around modern-day Pittsburgh had in part sparked the conflict. Washington was one of many American colonists who would fight for King and Country, but who also hoped to reap the lucrative gains of the frontier.

Peace was supposed to place the land into the waiting hands of American colonists. But as speculators laid claim to millions of acres and settlers migrated to reap the benefits of the rich farmlands of the Ohio Valley, it sparked a rebellion of unified Native American tribes.[4] Known as Pontiac’s Rebellion, the conflagration was ultimately suppressed at great British expense and effort. Hoping to stop an unrestrained colonial rush into the west in order to prevent further Native hostility (and both to retain control over the colonies and trade and to promote settlement in Quebec and Florida), the Proclamation halted American migration and “reserve[d]” the land “under” the King’s “Sovereignty, Protection, and Dominion, for the use of the said Indians.”[5]

Although the Proclamation was virtually unenforceable and was deemed temporary, the royal decree still triggered a sharp backlash and even outward violence from colonists who had invested in western lands, sought to settle, or been denied their promised rewards for military service. From the Mississippi Land Company to the Ohio Company, potential fortunes had been stifled, as land could not formally change hands from the Natives without royal approval and licensing.

Still, colonial resistance to the Proclamation of 1763 went beyond personal economic interests. It was one of the first of many British failings that colonists saw as distancing them from the mother country. The British Army, which was supposed to defend all subjects yet was historically viewed with deep fear by Anglo-Americans, was potentially weaponized to avenge the King’s “Displeasure.”[6] Colonists were limited in their movement, their property rights were hindered, and more substantially promises offered by the Crown had been invalidated. Furthermore, it seemingly protected Native Americans’ interests over the American colonists’. It created “two distinct worlds” whereby any claims to being a subject disappeared west of the line and the military held authority.[7] Colonists, like Washington, pressed their western claims up to and beyond the Revolution’s outbreak. As he complained, regardless of whether the Proclamation was “founded in good, or ill policy,” a promise of land grants had been made to French and Indian War veterans — one that was “to all Intents & purposes considered, as a mutual contract.”[8]

Although the Proclamation wasn’t actively enforced and with the line pushed further west due to the Treaties of Fort Stanwix and Hard Labor in 1768 and the Treaty of Lochaber in 1770 (prompting further speculation), the Second Continental Congress meeting in Philadelphia in 1776 still considered the issue as worthy of inclusion in the Declaration of Independence. For, in the Patriot view, the King “endeavoured to prevent the population of these States,” and “refus[ed]…to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.”[9] In doing so, the Congress acknowledged the Proclamation as being more than just a financial issue; it was a long remembered ideological and governmental grievance.

Twenty years after the 1763 Treaty of Paris opened the frontier to American colonists, the 1783 Treaty of Paris both ended the Revolution and ceded all lands east of the Mississippi River to the United States. Under the Articles of Confederation there was further delay in western expansion by design and conflict over territorial claims between various states.[10] It was under the new U.S. Constitution that additional disputes were resolved, existing state borders formalized and expanded westward, and the remaining lands organized into the Northwest and Southwest Territories, with statehood dependent upon population.[11] Furthermore, Secretary of War Henry Knox attempted to spread American “civilization” to the Native Americans, as he believed it would “most probably be attended with the salutary effect of attaching them to the Interest of the United States.”[12] In 1792, Kentucky entered the United States as the fifteenth state and first in the region formerly barred by the Proclamation of 1763 (Tennessee and Ohio would follow shortly). Although the paper barrier had fallen, tension with the British (as well as the Spanish) and Natives remained, as the land, its culture, and its borders were contested through the War of 1812. Meanwhile, the issue of the expansion or restriction of slavery in the new states simmered for over half a century, before erupting in the Civil War.

Craig Bruce Smith is the author of American Honor: The Creation of the Nation’s Ideals during the Revolutionary Era and an assistant professor of history at William Woods University. For more information: www.craigbrucesmith.com

[1] Colin G. Calloway. The Scratch of a Pen: 1763 and the Transformation of North America. (Oxford, England: Oxford University Press, 2006), p. 14-15.

[2] Ibid.

[3] The Royal Proclamation, Oct. 7, 1763. http://avalon.law.yale.edu/18th_century/proc1763.asp

[4] For economic motivation see: Woody Holton. Forced Founders: Indians, Debtors, Slaves, and the Making of the American Revolution in Virginia. (Chapel Hill: University of North Carolina Press, 1999).

[5] The Royal Proclamation, Oct. 7, 1763. http://avalon.law.yale.edu/18th_century/proc1763.asp; Jennifer Monroe McCutchen. “Proclamation Line of 1763,” Digital Encyclopedia of George Washington. https://www.mountvernon.org/library/digitalhistory/digital-encyclopedia/article/proclamation-line-of-1763/; Fred Anderson. Crucible of War: The Seven Years’ War and the Fate of Empire in British North America, 1754-1766. (New York: Vintage, 2000), p. 580.

[6] Ibid; Calloway. The Scratch of a Pen, p. 92-93.

[7] Patrick Griffin. American Leviathan: Empire, Nation, and the Revolutionary Frontier. (New York: Hill & Wang, 2007), p. 21; Alan Taylor. American Revolutions. (New York: W.W. Norton and Company, 2016), p. 61; Brendan McConville. The King’s Three Faces: The Rise & Fall of Royal America, 1688-1776. (Chapel Hill: Omohundro, 2006), p. 235.

[8] George Washington to Lord Botetourt, 8 Dec. 1769. Founders Online. https://founders.archives.gov/documents/Washington/02-08-02-0188

[9] The Declaration of Independence. 4 Jul. 1776, https://www.archives.gov/founding-docs/declaration-transcript

[10] Benjamin Harrison to Virginia Delegates, 19 September 1783, footnote 3. https://founders.archives.gov/?q=%22proclamation%20of%201763%22&s=1111311111&sa=&r=65&sr=

[11] US Constitution, 1787, https://www.ourdocuments.gov/doc.php?flash=false&doc=9&page=transcript; Northwest Ordinance, 1787, https://www.ourdocuments.gov/doc.php?flash=false&doc=8&page=transcript;

Southwest Ordinance, 1790

https://constitution.org/uslaw/southwest_ordinance.pdf

[12] Henry Knox to George Washington. 7 July. 1789. Founders Online. https://founders.archives.gov/documents/Washington/05-03-02-0067

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Having founded republican regimes in America, regimes animated by respect for the laws of Nature and of Nature’s God as enunciated in their Declaration of Independence from the British monarchy, the Founders remained vexed at the confederal form of the American state–the relations among the several states in the confederation and the relationship between the weak federal government and those states, relationships framed in the Articles of Confederation. True to its title, The Federalist centrally addresses this question—literally so. James Madison, scribe of the Constitutional Convention and one of the principal designers of the new Constitution itself, wrote the forty-third or central number of the collection, as well as the six preceding essays and the fifteen subsequent. The core of the book belongs to him, and his topic throughout the series is the character of American federalism as the Constitution would now constitute it.

Madison begins by identifying the need to balance government energy with stability, both in defense of liberty—a natural right—and “the republican form”—the regime which emanates from that right. Liberty and the regime of liberty require energy for self-defense and for execution of the laws enacted by the regime; liberty and republicanism also require stability in order establish the “national character” and to fortify the confidence of the people in their new regime. “The task of marking the proper line of partition between the authority of the general and that of the State governments” proved arduous, given the rightful jealousy of the citizens of each state as they guarded their right and power to govern themselves, a jealousy that nonetheless needed to be balanced by considerations of public safety and economic prosperity, threatened by factionalism within and among the states under the Articles of Confederation. Natural rights are one thing, but they can never be secured without due consideration of  “the infirmities and depravities of the human character,” evils that undermine popular governments no less than monarchies and oligarchies.

Madison assures his readers that the form of the “general” or federal government remains “strictly republican.” “No other form would be reconcilable with the genius of the people of America; with the fundamental principles of the Revolution; or with that honorable determination which animates every votary of freedom to rest all our political experiments on the capacity of mankind for self-government.” Such a government will derive “all its powers directly or indirectly from the great body of the people” and not “from an inconsiderable proportion or a favored class of it.” Each of the three branches of the newly-designed federal government does indeed meet that criterion; they all pass the ‘regime’ test.

But what about the ‘state’ test? Does the federal government possess the needed energy, the requisite power, truly to govern? Without a strong federal union, America will become another Europe, full of small and medium-sized states armed against one another, their liberties “crushed between standing armies and perpetual taxes,” their prosperity shackled by high tariff walls. At the same time, does its structure limit but also focus that energy in a way that does not consolidate the states into one amorphous mass, compromising the rights of citizens to govern their own lives as they really live them—in towns and counties within states? Self-governing citizens must never be reduced to spectators, gazing at the actions of ‘statesmen’ far above and beyond their control.

After reaffirming, in the central, forty-third Federalist, “the great principle of self preservation” and “the transcendent law of nature and of nature’s God, which declares that the safety and happiness of society are the objects at which all political institutions aim,” Madison turns to the restrictions of the authorities of the American states enunciated in the new Constitution—restrictions imposed precisely because those states had failed adequately to secure the natural rights identified in the Declaration of Independence and vindicated in the war for independence and the revolution the war advanced. Among other things, the states shall not enter into treaties, coin money, impair the obligation of contracts, or grant the titles of nobility (changing themselves into aristocracies). But would these restrictions weaken the states too much. Of particular concern to critics were the Constitution’s clauses granting the federal government the power “to make all laws which shall be necessary and proper for carrying into execution” its enumerated powers to set foreign and domestic policies for the American government as a whole, and the designation of the laws enacted by those powers as “the supreme law of the land.”

There is no way of defining one’s way out of that concern. What are “necessary and proper” laws? And if the “supreme law of the land” isn’t lodged in the general government, where would it be lodged, if not in the states, which had misused their supremacy? In Federalist 45, Madison writes, “Were the plan of the [Constitutional] convention adverse to the public happiness, my voice would be, Reject the plan. Were the Union itself inconsistent with the public happiness, it would be, Abolish the Union. In like manner, as far as the sovereignty of the States cannot be reconciled to the happiness of the people, the voice of every good citizen must be, Let the former be sacrificed to the latter.”

Madison then shows how the Framers solved the problem. Although the States were indeed stripped of their sovereign powers—treaty-making, coinage, regime change, and so on—unlike the general government they would form “constituent and essential parts” of that government. By establishing the Electoral College, the Framers required state-by-state election of presidents; each voting district for House of Representatives remained entirely within the boundaries of a state, with no interstate districts; and the United States senators would be elected by state legislatures, with each state sending two senators, regardless of its size.

Further, the administrative or bureaucratic side of government would favor the states. There would be far more state employees than federal employees. This remains true even to this day, with the vastly expanded federal bureaucracy now in place, although of course it is much less true than it was in the first 150 years of American constitutional government. The causes of that shift of power have everything to do with the partial abandonment of our constitutional scruples, beginning in the twentieth century, rather than to the Constitution itself.

Fundamentally, “the powers delegated by the proposed Constitution to the federal government are few and defined,” whereas “those which are to remain in the State governments are numerous and indefinite.” Moreover, the federal government’s powers largely concern external matters; the day-to-day concerns of most citizens—their “lives, liberties, and properties”—will continue to find redress from the local, county, and state governments.

As Madison tough-mindedly remarks in a subsequent paper, the new Constitution puts the states to the test. If the sovereign American people “should in future become more partial to the federal than to the State governments, the change can only result from such manifest and irresistible proofs of a better administration as will overcome all their antecedent propensities.” The stronger federal government set down in the new Constitution will inaugurate a kind of competition in good government, breaking the states’ monopolies.

In all this, as Madison writes in the forty-ninth Federalist, the Framers have structured the new federal government and the American system of governments overall in such a way as to secure natural rights while minimizing the infirmities and depravities of the human nature all persons share. Not the passions but the reason of the American public should “sit in judgment” of the government: “It is the reason, alone, of the public, that ought to control and regulate the government. The passions ought to be controlled and regulated by the government.” “As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form,” and so does federalism, rightly understood. If such were not the case, “the inference would be that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another.”

Will Morrisey is William and Patricia LaMothe Professor Emeritus of Politics at Hillsdale College, and is a Constituting America Fellow; his books include Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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A recurrent theme during the debates in 1787 and 1788 over adoption of the Constitution was the structural incompatibility of “confederation” with “consolidation.” The latter was the feared absorption of the states into a unitary general government, so that they ceased to be sovereign members of a “union.” As counties or districts were consolidated within a state, so states would be in the United States.

The Articles of Confederation had guarded against that. In addition to laying out a number of substantive powers and the detailed means by which those powers were to be exercised, they carefully delineated the boundary between the states and the Congress: “Each state retains its sovereignty…, and every Power [sic]…, which is not by this confederation expressly delegated to the United States, in Congress assembled.” Moreover, under the Articles, Congress acted as a true “federal head” on the corpus of the states. Not only did the states have equal voting rights, but Congress acted on the states, not on the citizens directly. The last was the constitutional role of the state legislatures. Thus, under Article VIII of the Confederation, all charges assessed by Congress were to be paid by the states in prescribed proportion, and the “taxes for paying that proportion shall be laid and levied by the authority and direction of the legislatures of the several states ….”

By contrast, the new Constitution allowed Congress to bypass the state legislatures and act directly on the people through the powers laid out in Article I, Section 8, including the power to control its own sources of revenue by taxation. More ominously, clause 18 of that section gave Congress the power to make all laws “necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.” If that were not enough, Article VI of that document declared that, among other types of law, the statutes of Congress would be the supreme law of the land, and thereby override any state laws that Congress might deem contrary to the exercise of its own powers.

Both the “sweeping” or “elastic” clause (the aforementioned “necessary and proper clause”) and the “supremacy clause” drew the alarm of the Constitution’s opponents. Jefferson, writing to Senator Edward Livingston in 1800, illustrated their concerns, which had not disappeared with the document’s adoption. Congress had recently chartered a mining company.  Jefferson sarcastically compared this action to a popular nursery rhyme: “Congress are authorized to defend the nation. Ships are necessary for defense; copper is necessary for ships; mines, necessary for copper; a company necessary to work the mines; and who can doubt this reasoning who has ever played at ‘This is the House that Jack Built’?”

Even the preamble of the Constitution drew criticism. In passionate speeches to the Virginia ratifying convention in June, 1788, Patrick Henry drew a stark distinction: Had the preamble spoken of “we [sic] the States,” it would have been a confederation. Rather, it spoke of “We, the people, instead of the States of America,” a clear designation of a consolidated government. Henry saw that type of government as a grave threat to basic liberty. He specifically cited the “relinquishment of the trial by jury, and the liberty of the press” as well as threats to the states’ maintenance of their militias.

Attacking from another direction, he denounced Congress’s new power to tax the people directly, another feature of consolidated government, which replaced the Confederation’s system of assessments collected by the states for the federal head. In colorful language, he described the pathology of the new system: “In this scheme of energetic Government, the people will find two sets of tax-gatherers–the State and the Federal Sheriffs….The Federal Sheriff may…ruin you with impunity….Have you any sufficient decided means of preventing him from sucking your blood by speculations, commissions, and fees? Thus thousands of your people will be most shamefully robbed: Our State Sheriffs, those unfeeling blood-suckers, have, under the watchful eye of our Legislature, committed the most horrid and barbarous ravages on our people ….If Sheriffs thus immediately under the eye of our State Legislature and Judiciary, have dared to commit these outrages, what would they not have done if their masters had been at Philadelphia or New York?”

Henry charged, the defenders of the Constitution also were mistaken when they asserted that the federal and state governments would exercise their respective powers as in a “parallel line,” with each confined to its proper objects. Rather, there was no clear line drawn generally in the Constitution between the two levels of government. Even when a specific line was drawn, no mechanism existed to prevent one sovereignty from encroaching on the other. Inevitably, Henry argued, the more powerful general government must necessarily subvert the state governments. Hence, the “necessity of a Bill of Rights appear [sic] to me to be greater in this Government, than ever it was in any Government before.” Indeed, Henry rhetorically preferred the English structure, with its Bill of Rights to limit the King, to the proposed American Constitution that lacked such a document.

The structure of checks and balances among the branches of government and the split sovereignty of the Constitution’s version of federalism were, as Madison and other supporters had insisted, the bulwark to constrain the general government and to protect the people’s rights against arbitrary power. Henry represented the views of many in the various state conventions and, indeed, in the Philadelphia drafting convention, that their plasticity and permeability made such political measures insufficient. Henry’s fellow-Virginian, George Mason, instrumental in forming the Constitution in Philadelphia, left that convention before the final vote, due to that body’s refusal to include a bill of rights. Several other delegates departed for similar reasons. These critics insisted that a firm and clear enumeration of limits on the general government was needed, just as Virginia and some other states had in their own constitutions.

The objections voiced by Henry and others in the several state conventions, caused many of those bodies to submit lists of proposed amendments to the Constitution along with their votes to approve the charter itself. Consistently, these proposals sought to establish a clear line between the two sovereignties’ legislative powers. However, a nuanced, but substantively essential, difference in the language emerged between submissions from states that approved the Constitution early, contrasted with actions by later conventions. Between December 12, 1787, and June 21, 1788, the proposals from Pennsylvania, Massachusetts, Maryland, South Carolina, and New Hampshire, all contained variations on the following language: “That it be explicitly declared that all Powers not expressly delegated by the aforesaid Constitution are reserved to the several states to be by them exercised.” [Emphasis added.] (Massachusetts). That formulation approximated that in the Articles of Confederation. Thereafter, the three states that sent such proposals framed them without the word “expressly.”

The verbal difference illustrated a shift in the federal nature of the two sovereignties and was clearly understood. This shift was reflected in Madison’s language in what became the Tenth Amendment. His initial proposal in the First Congress read, “The powers not delegated by this constitution, nor prohibited by it to the states, are reserved to the states respectively.” When an amendment to this language was proposed on the floor of the House to insert “expressly” [delegated], Madison referred to the extensive debate in the Virginia convention. There, he had opposed such an addition as inconsistent with the structural change in the respective constitutional positions of the states and the general government in the new Constitution. He saw the proposed change to his draft as returning the government to the Articles of Confederation. Madison prevailed; the eventual Tenth Amendment did not include this critical adverb. Years later, in McCulloch v. Maryland, Chief Justice Marshall used this textual difference between the two charters to demonstrate the shift in sovereignty and to sustain his broad reading of the general government’s legislative powers.

Still, it would be historically incorrect to say that the principal objective of the Bill of Rights was to protect the states’ power to legislate. Rather, as reflected in the first eight amendments, the objective was to protect expressly the rights of the people from intrusion by the general government into their liberty. Even Henry spent considerable oratory emphasizing the threat the general government posed directly to the rights of the people. If it was necessary for the people’s liberty to have clear limitations against the state government in the Virginia constitution, how much more were they required against the general government?

The Bill of Rights only applied to the general government, not the states, as the Supreme Court affirmed in 1833, in Barron v. City of Baltimore. Protection of state authority to legislate was, to be sure, an incidental aspect of the project. For example, the First Amendment’s Establishment Clause sheltered the continued existence of established state churches. As well, the Second Amendment protected the states’ ability to sustain a militia in the event the federal government used its powers to frustrate the formal state governments’ control over that body. But that amendment did so by recognizing the right of the people, individually, to keep and bear arms, and to organize themselves into militias outside the corporate state governments, if needed.

Moreover, to the extent that the Bill of Rights protected the states’ legislative powers, this was not an unalloyed blessing for individuals. For example, Thomas Jefferson and other Republicans of the time denounced John Adams and the Federalist Party for passage of the Sedition Act of 1798. They claimed the statute violated the First Amendment and exceeded Congress’s legislative powers. At the same time, Jefferson encouraged his political allies in states that they controlled to prosecute Federalist editors under state anti-sedition laws. It was not until the Supreme Court in the 20th century began to incorporate Bill of Rights protections into the due process clause of the Fourteenth Amendment and apply them to the states, that states were prevented from curtailing individual rights beyond what the federal government could do.

Unfortunately, the fears of Henry and other skeptics about the reach of federal power and the erosion of state sovereignty have come true. From a constitutional perspective, the Tenth Amendment is a shadow of what it represented at the time of the ratification debates. If Congress acts directly on individuals under the broad reach of the commerce power, the Tenth Amendment is no real barrier. Only if Congress, instead of legislating directly, seeks to “commandeer” the states into adopting federal policies or administering federal laws is there a violation of the states’ residual sovereignty. Even that obstacle is easily evaded, if Congress attaches the states’ compliance with prescribed federal policies as a condition of receiving federal funds. Yet, as the American people have come to experience, states and localities still legislate vigorously, much more than during the Republic’s early years despite the erosion of their constitutional sovereignty. However, their ability to do so is primarily a function of practicality. It is simply too inefficient to have most local matters administered by federal officers and bureaucrats.

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

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“Federalism secures to citizens the liberties that derive from the diffusion of sovereign power.”   – Justice Sandra Day O’Connor in Coleman v. Thompson (1991)

There is a beauty in our structure of governance—a structure as carefully engineered as a Greek temple or medieval cathedral, and likewise meant to stand for centuries. In our federalist system, the branches and levels of our government are separate yet intertwined, both opposing and relying on one another to create a system that is both strong and delicate.

But like those engineered structures of old, whose beauty and durability can be compromised by misunderstanding and neglect, the same holds true for the support beams undergirding our republic.  A failure to appreciate their role, a misguided effort to subvert their role, and the whole structure, the whole republic collapses.  Most importantly, undo the various institutions of federalism (either through affirmative effort or neglect), and the republic decays and ultimately dies.

The body of the Bill of Rights represents an enumeration of further constraints on federal power, starting with the phrase, “Congress shall make no law…”.  Given that the Constitution itself is an accounting of the full measure of the federal government’s power—the entire breadth of that power, with nothing more left to speculation, the Founders wanted to ensure that people understood that there were further constraints within those powers granted—starting with very specific enumerated constraints and ending with two very broad declarations of the power of individuals and other levels of government:  the 9th Amendment, which makes it clear that simply because some rights were discussed in the Bill of Rights that this does not mean that other rights exist (rights are innumerable. Governmental power is finite); and the 10th Amendment, which makes the broad, but essential, declaration that all that is not surrendered to the government is retained, and that individual rights are protected by the diffusion of power our federalist system operates under.

The Founders were skeptical of concentrated power—whether that power was concentrated in a central, federal government or concentrated in a particular branch of that government.  Concentrated power, as history had taught them (and, for the Founders, we’re talking both classical and proximate history) was apt to be abused—tyrants from Caesar to King George V had taken root because power had been concentrated in some central body.

But as invariably happens, because what is past is prologue and those who fail to learn history are doomed to repeat it, over time these already-precariously balanced institutions become threatened by those who want to see them undone—those who care little for individual rights, but, because of their own parochial interests, wish to see the power of government increased and concentrated.

One of the surest ways to minimize government intrusion into individual rights is to make government bodies as accountable as possible and practicable—and this meant, to the Founders, to leave as much of the day-to-day interaction between people and their government to be at a level closest to the people, with federal power constrained to dealing with issues of national defense and ensuring the free-flow of commerce between the states.

In fact, it was via this Commerce Clause power that the federal government began its expansion into spheres traditionally reserved to states and localities—with the predictably disastrous results.  In 1935 and 1936, as the nation was grappling with the Great Depression, the Supreme Court issued two decisions invalidating key elements of President Franklin Delano Roosevelt’s New Deal agenda as being violative of the Commerce Clause.  Frustrated with the Supreme Court’s adherence to basic principles of federalism, FDR then, essentially, threatened the Supreme Court with a “court packing” scheme in which he would appoint a new justice to balance any justice over the age of 70.

This would have enlarged the court to 15 members, and acquiescing to the president’s pressure, the court began ruling in favor of the New Deal by using a new interpretation of the Commerce Clause that essentially left the government with limitless power, allowing legislators and government bureaucrats to use the most marginal of “interstate commerce” nexuses to justify the constitutionality of a law: things like a “glancing goose” theory to justify the federal regulations governing local wetlands (the idea being that a goose, flying from state to state, might “glance down” at a wetland and want to land, thus justifying federal control).

The effect is that citizens lose the ability to effectively hold government accountable and assert their rights, since it becomes difficult to “push back” against ever-expanding federal control.  Whereas, when a county or state wants to regulate a wetland in someone’s backyard, a property owner can go to a county council or to their state capitol to find a remedy.  But if a citizen wants to push back against the US Environmental Protection Agency (or the US Army Corps of Engineers, which also regulates wetlands), it becomes nearly impossible—requiring legions of lawyers with federal expertise, a limitless bank account, and the patience of a saint.

But most-important, instances like this are illustrative of the interest the founders had in limiting federal government power because of the implications to individual rights.  In this instance, we’re talking about the right to hold and enjoy private property.

It took nearly sixty years for the Supreme Court to finally find limitations to the federal government’s power under the Commerce Clause, and to re-assert the Tenth Amendment.  From 1992 onward, the Supreme Court issued a series of decisions demonstrating the importance of federalism in the protection of individual rights (and the powers of states and local governments).  Even the so-called “glancing goose” theory was finally rejected and the federal government’s power to regulate “isolated” wetlands was struck down.

But other threats to federalism remain—and the nation must guard itself against those threats, especially those undertaken in the name of greater “democracy”.  We are not a “democracy”—federalism makes that manifest.  Yet beyond the expansive interpretation of the Commerce Clause, other efforts have sought to undermine these republican institutions.  The ratification of the 17th Amendment, which took power out of the hands of state legislators with regards to the appointment of senators to the United States Senate was an early example.

Done in the name of encouraging popular democracy, the 17th Amendment has had devastating results in terms of accountability. Senators are less accountable.  Whereas before, they would have to report, regularly, to elected officials who served at a level closer to their constituents, now these senators are only accountable once every six years when they stand for election.

Despite this undermining of federalism, there are those who want to see this eroded even more!  Efforts to change the apportionment of the Senate so that it more-closely resembles the U.S. House of Representatives would completely undo the very protections to individual rights envisioned by having two different houses of Congress in which membership is determined in different ways.  The founders did not want the most-populous states to be able to dictate policy to the least-populous states (not without great protections for the citizens of those states).

Worst of all, efforts to undermine the Electoral College would essentially bring the republic to an end as we know it.  The Electoral College exists as a testament to these federalist principles – acting as a check against democratic impulses that can turn a civil society into mob rule.  The values and interests of rural and agrarian Americans differ greatly from the values and interests of Americans who live in cities.  This has been true since before the American founding and it remains true to this day.

This is why the founders created the Electoral College as the best system for electing a President—to balance the interests between these rural and urban Americans and ensure that a President cannot be elected from the most-populated states with a view towards holding the rights of rural Americans to a second-class status.

Whether it is an effort to remove the Electoral College via amending the Constitution or side-stepping the Constitution’s precepts through interstate compact, the end-result is the same:  the collapse of our federalist system, and another affront to the protections of the 10th Amendment.

Our founders created a structure of government that is both delicate and complex.  But that delicate complexity, like the construction of monuments of old, has a strength that can stand the test of time.  We have to guard ourselves against the destruction of that system—whether through willful subversion or ignorant neglect.

Regardless, in the end, the result is the same.

Andrew Langer is President of the Institute for Liberty, and Host of the Andrew Langer Show on WBAL in Baltimore.

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The Constitution establishes a dual governmental structure consisting of state and national governments.  Although its purpose was to create a strong national government, the Constitution also sought to preserve the independent integrity of the states.  This bifurcated system of power was codified in the Tenth Amendment, which divides sovereign power between those delegated to the federal government and those reserved to the states.  The Tenth Amendment prohibits the national government from exercising undelegated powers that will infringe on the lawmaking autonomy of the states.

The framers believed that by protecting the pre-existing structure of state governments the Constitution could safely grant power to the national government, since the former would independently monitor the latter’s exercise of power.  Similar to the way in which the colonial governments had mobilized opposition to oppressive acts by Parliament, the state governments would serve as vigilant watchdogs against abuses committed by the federal government.

The doctrine of federalism refers to the sharing of power between two different levels of government, each representing the same people.  The founding generation was so committed to federalism that even a nationalist like Justice Marshall acknowledged in McCulloch v. Maryland that the national government was “one of enumerated powers” and could “exercise only the powers granted to it.”  Indeed, federalism concerns were so important to the Founders that nearly all the arguments opposing the new constitution involved the threat to state sovereignty.

Although there is no single ‘federalism’ clause in the Constitution, the Tenth and Eleventh Amendments are often the focus of the Court’s federalism decisions.  In the constitutional scheme, federalism provides an avenue for local self-determination, in addition to a vertical check on government oppression, with the states serving as a localized control on the centralized national government.  Under the framers’ view of federalism, as expressed in the Tenth Amendment, the national government would exert supreme authority only within the limited scope of its enumerated powers; the states meanwhile would exercise the remainder of sovereign authority, subject to the restraint of interstate competition from other states.

Because the framers took for granted the sovereign powers of the states, the Constitution is somewhat one-sided in its references to governmental authority.  It explicitly lists the powers of the federal government; but to the extent it defines state powers, it does so primarily through negative implication, by setting out the limited constraints on those powers.  Furthermore, the Tenth Amendment, though not granting power to any governmental entity, recognizes that any and all powers not granted to the federal government have been reserved to the states.

During the nineteenth century and throughout the early twentieth, the Court adhered to a federalist vision, under which it often used the Tenth Amendment to limit federal power.  But after 1937, the Court switched positions, adopting a nationalist model.  In the wake of the New Deal, the expansion of federal powers increasingly eroded the Tenth Amendment protections, and the Court from 1937 to roughly the 1990s largely ignored the Tenth Amendment.  During that time, only one federal law was held to violate the Tenth Amendment.

The year 1937 is seen as a transformational year in the Court’s approach to the exertion of national power; in that year, President Roosevelt sent to Congress a bill that would authorize him to appoint one new Supreme Court justice for each sitting justice who had served ten years or more and had not retired within six months after his seventieth birthday.  Under this ‘court-packing’ plan, the number of Supreme Court justices was to be raised to fifteen.  Whether the Court was influenced by this bill and its likely passage cannot be known for sure; but shortly thereafter, the Court began upholding New Deal legislation of the kind that had previously been struck down.  Initiating a new era of constitutional interpretation, the Supreme Court endorsed a permanent enlargement in the scope of federal power, at the expense of the states.  Under this relaxed posture toward congressional power, the Court would later uphold a wide range of statutes over the next fifty years, including purely local incidents of loan sharking.

After almost sixty years of dormancy, federalism made a constitutional comeback in the 1990s.  In its federalism revolution, the Rehnquist Court reinvigorated the doctrine of federalism and restored power to the states.  Under the Court, there occurred a slow but steady trend towards curbing the power of the federal government and using the Tenth Amendment to safeguard the states from overreaching by the federal government.

This revival of federalism, one of the country’s most basic constitutional arrangements, became the hallmark identity and achievement of the Rehnquist Court.  And this federalism revolution, which fostered a new respect for the sovereignty of the states, also revived the Tenth Amendment as a limit on congressional power.

The Tenth Amendment continues to be a constitutional force and was instrumental in National Federation of Independent Business v. Sebelius (2012), the Supreme Court’s noteworthy decision on the Affordable Care Act preserving state autonomy.

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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Federalism is an intrinsically American governing principle whose relevance has increased with the nation’s geographical expansion. It sprang from our Founding Fathers’ unwavering commitment to liberty and their sober conviction that without strong safeguards, power would inevitably migrate to the national government and inexorably erode the rights of the governed. With the goal of preserving freedom by preventing the consolidation of control in any one political structure, the Founders came together to draft the U.S. Constitution. Mindful and somewhat humbled by the failure of the Articles of Confederation, they understood that a central authority was necessary to provide for the common defense and general welfare – and most important of all – to protect the liberty for which they had fought so hard. However, they also recognized that giving the federal government unchecked power would likely lead to a tyranny not so very different than the one they had just overthrown.

The Founding Fathers also recognized that government closest to the people being governed was the most just and effective. Compared to the original 13 states, the country has become remarkably vast and diverse lending even greater credence to this ideal. Local authorities understand conditions in their states better than a federal agency that might be located three time zones away. State governments are nimble enough to implement good policies more rapidly than a federal bureaucracy, and it is easier to hold local law and policy makers accountable for poor decisions. As Alexander Hamilton explained in Federalist no. 17, “It is a known fact in human nature that its affections are commonly weak in proportion to the distance or diffusiveness of the object. Upon the same principle that a man is more attached to his family than to his neighborhood, to his neighborhood than to the community at large, the people of each State are apt to feel a stronger bias towards their local governments than towards the government of the Union.”

And whether the Founders foresaw it or not, federalism created a fertile environment for policy innovation to flourish. The states have the freedom to craft solutions to problems unique to their locale without having to petition the federal government for permission to address an issue that might only have resonance in one part of the country. Federalism empowers states to develop policies that, if effective, can be shared to solve common problems. Damaging ideas can be discarded before being widely implemented. More than 130 years after the Founding Fathers drafted the U.S. Constitution, Justice Louis Brandeis in New State Ice Co. v. Liebmann observed that a “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.” The freedom to innovate also serves as a crucial political safety valve for Americans who feel powerless in the face of federal dysfunction or a federal government that they believe fails to address their concerns. Federalism helped shape the nation we have become and continues to exert a strong influence on American society today.

For the Constitutional Framers, success in Philadelphia would require striking just the right balance of power between competing governing entities. Their solution was an ingenious design that gave the federal government the authority that it needed to unite the nation while devising a system of internal and external checks to diffuse power so that the national government would ultimately be subject to the will of the states and the people. Internal checks and balances were incorporated giving the three branches of the federal government the ability to check each other so that none of them could consolidate too much power. Then the Constitutional Framers established that the states would be co-equal and as such could act as an external check on the national government. This external check, referred to by Alexander Hamilton as the “double security” heralded the arrival of the “compound republic.” Their constitutional equality empowered and even compelled the states to rein in a federal government that overstepped its bounds.

America’s Founders envisioned the states as co-equal partners with the federal government and included constitutional provisions devised to undergird the states’ sovereignty and ensure that no state would be rendered powerless due to population or geographical size. Every state is represented in the U.S. Senate by two senators giving each an equal voice irrespective of population or geographical size. Before the adoption of the 17th Amendment which provided for direct election of U.S. Senators, they were selected by state legislatures underscoring the significance of state legislative bodies to the Constitutional Framers. The Founding Fathers also put the states on equal footing in proposing amendments to the newly-drafted Constitution. Either two-thirds of both houses of Congress or applications from two-thirds of the state legislatures is required to propose a constitutional amendment. Ratification authority over proposed amendments devolves to the states. The Constitution enumerates what governing responsibilities fall to the federal government and in which branch of government authority resides. And as if to ensure that there would be no misunderstanding that the states would serve as its partners, not its subjects, the Tenth Amendment explicitly states that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States are reserved to the States respectively, or to the people.” James Madison sums the concept up perfectly in Federalist 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.”

Almost from the beginning, federalism faced strains which intensified during the 20th and first years of the 21st century as it became associated with restrictions on the very liberties it was created to protect. This led progressives to abandon state sovereignty. During the same period, the United States’ focus turned increasingly global with more policies legitimately decided at the federal level. Further erosion occurred due to a decline in civic literacy resulting in many Americans mistaking federalism for its opposite – concentration of power in the national government – as well as to the states’ failure to heed Founding Father John Dickinson’s warning, “It will be their own faults, if the several states suffer the federal sovereignty to interfere in the things of their respective jurisdictions.” These are the factors that caused a great governing principle to gain a reputation for being a relic of a bygone era. The states started accepting laws, regulations and executive orders without challenging their constitutionality. The reward for the states’ obeisance was federal dollars coopting them in order to solidify their dependence on the federal government. Without protest, the states exchanged their co-equal status with the national government for one of subservience. It happened just as James Madison foresaw when he observed, “There are more instances of abridgement of freedom of the people by gradual and silent encroachment of those in power than by violent and sudden usurpations.”

Federalism is experiencing a renaissance! This rebirth began quietly in the 1980s when then President Ronald Reagan issued Executive Order 12612 to restore the division of governmental responsibilities between national and state governments. The Order was ultimately rescinded by Clinton in the following decade. However, the conviction that federalism might hold the keys to address dysfunction in federal institutions continued to grow in popularity. Americans noticed the sharp contrast between state functionality and federal dysfunction and distrust of Washington, DC reached historically high levels. According to the Pew Research Center, only 18 percent of Americans trust the federal government to do what is right “just about always” (3%) or “most of the time” (15%).

Contributing to federalism’s resurgence is its “rediscovery” by Americans on the Left who view federalism as a tool to advance progressive policies – especially on environmental and immigration issues. State sovereignty is once again being recognized for what it is and always has been – a governing principle that transcends political affiliation and was endowed by the Founders to future Americans as a mechanism to preserve freedom.

Federalism is a founding and defining principle of my organization – the American Legislative Exchange Council (ALEC). ALEC is America’s largest, nonpartisan, voluntary membership organization of state legislators dedicated to the principles of limited government, free markets and federalism, and state lawmaker members of ALEC have been leaders in pushing back against federal encroachment into matters better handled by the states. Several state legislatures have established Commissions on Federalism to evaluate and review any federal law that could potentially violate the state’s sovereignty. ALEC has adopted model policy to create such commissions as well as model policy that encourages the states to unite to evaluate examples of federal overreach. The model policy can be accessed here. However, state lawmakers need education in federalism in order to recognize federal infringement of state sovereignty. To help solve this problem, ALEC has adopted model policy calling for the continuing education for state lawmakers in federalism. Because it is imperative that attorneys who represent separate and independent sovereign states and their subdivisions have a clear understanding of the jurisdiction and authority of the states as well as the fundamental principles of federalism, ALEC has adopted model policy calling for federalism education for public attorneys. These model policies can be accessed here and here. Prioritizing the teaching of constitutional principles, including federalism, in schools would improve America’s civic literacy and engagement. Thomas Jefferson, recognizing the future need to protect the United States’ political heritage, prescribed a general education for all Americans, “to instruct the mass of our citizens in these their rights, interests, and duties, as men and citizens.” ALEC model policy to put Jefferson’s words into action can be accessed here.

When understood and practiced, federalism gives rise to dynamic political activity. Regulatory reform, an excellent example of federalism in action, is entering a critical juncture at the federal and state level.  Federalism plays a unique role in regulatory reform especially with technology, financial regulation, and affordable housing issue areas. The emphasis is placed on accountability, problem solving and economic theory to reduce risk and increase freedom rather than compounding risk and imposing regressive effects on families and small businesses. While Executive Order 13771 Reducing Regulation and Controlling Regulatory Costs has reduced the rate of regulatory accumulation, progress is uneven across agencies. Regulatory reform legislation remains stalled in the Senate, and the policy focus in the U.S. House of Representatives is likely to shift to oversight activities to undermine efforts to reduce regulatory complexity with the introduction of legislation that emphasizes additive rulemaking.

There has been a growing trend for states to pursue some form of regulatory reform, and states with a few years of experience of regulatory review are near the end of picking the “low hanging fruit.” Those states are grappling with questions on how to make regulatory fixes permanent and how to improve complex and engrained regulatory programs more effectively.

Canada has much to share with the states on effective regulatory reform which is proceeding rapidly at the provincial level.  There is a unique opportunity to inform the eight states and two provinces in the Great Lakes region about the effectiveness of a regulatory reform effort based on the British Columbia model and economic analysis and to demonstrate the benefits for economic development and trade with a regional analysis. If successful, this model can be replicated in other regions.

Although Article V of the U.S. Constitution describes pathways to propose amendments to the U.S. Constitution for both Congress and the states, only Congress has exercised this power. The Founding Fathers included an amendment process for the states anticipating a time when Congress might become the problem rather than a source of solutions to the country’s problems. When two-thirds of state legislatures submit applications to Congress, Congress is compelled to call a convention of states to consider and potentially propose a constitutional amendment. The convention has the same power that Congress does to introduce an amendment, and like a Congressionally-proposed amendment, one that results from a convention of states, would still require ratification by three-fourths of the states before being incorporated into the U.S. Constitution. Current applications address a wide array of topics, including a federal balanced budget amendment, Congressional term limits, campaign finance and regulatory reform, and some applications are open calls for a convention of states without a specific topic to be considered. Although none of the state-driven Article V initiatives have breached the 34-state threshold, some are closing in on this benchmark. Proposing amendments is a potent tool that states can use to rein in federal overreach. More information about the Article V process can be found here.

We are entering an era of renewed appreciation for federalism. National priorities that were once seen as universally held are now characterized by partisan bickering, and while Congress is trapped in an endless loop of gridlock, our nation’s challenges, including our national debt, are quickly becoming existential threats. As distrust in the federal government grows and policies advanced in Washington, DC with little or no input from outside the Beltway fail, more and more Americans are looking to the states for solutions to their most intractable problems. People on both sides of the aisle are acknowledging the states’ potential for policy leadership and innovation, just as our Founding Fathers intended. However, in order to retain the power granted them in the Constitution, the states must steadfastly assert their authority. In a 1791 letter to former Virginia State Senator Archibald Stuart, Thomas Jefferson wrote, “It is important to strengthen the State governments … it must be done by the states themselves, erecting such barriers at the constitutional line as cannot be surmounted either by themselves or by the General Government.” It’s time for states to hold Jefferson’s “constitutional line” – the nation will be better for it.

Lisa B. Nelson is CEO of the American Legislative Exchange Council, the nation’s largest and oldest voluntary membership organization of state legislators focused on limited government, free markets and federalism. Karla Jones directs the Center to Restore the Balance of Government—the ALEC Center on federalism. Learn more about federalism, ALEC and policies that increase freedom at www.ALEC.org

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James Madison, the “father of the Bill of Rights”

As we celebrate the 227th anniversary of the adoption of the Bill of Rights (December 15, 2018), American politics and civic life seems more and more divided. The founding generation often saw a political environment that was just as divided as ours, if not even more so. Virginia statesman James Madison gives us an example of principled compromise to achieve the principles of limited government and inalienable rights as he became the “father of the Bill of Rights.”

The origins of Madison’s work creating the Bill of Rights was rooted in his experience in the 1780s. In Virginia, he witnessed the established Anglican Church violating the freedom of conscience of religious dissenters. As a result, he became the primary advocate for Thomas Jefferson’s Virginia Statute for Religious Freedom. In early 1787, Madison was preparing for the Constitutional Convention and wrote an essay entitled “Vices of the Political System” detailing the flaws of the Articles of Confederation. One of the main problems in his view was that tyrannical majorities in the states passed unjust laws violating the rights of minorities.

At the Constitutional Convention, Madison supported the constitutional principles that would limit government and protect individual liberties. However, he lost one central feature of his plan of government—a national veto over state laws to prevent majority tyranny in the states. Still, he became one of the greatest supporters of the Constitution.

During the ratification debate, the Federalists who supported the Constitution had to promise that they would pass a bill of rights if the Antifederalist opponents agreed to a bill of rights. Madison opposed a bill of rights because he thought that they were often just “parchment barriers” that overbearing majorities violated in the states. At this point, he thought “the amendments are a blemish.”

Madison conducted an extensive correspondence with his friend Thomas Jefferson, who was in Paris at the time. Jefferson lamented the absence of a bill of rights in the Constitution and asserted, “A bill of rights is what the people are entitled to against every government on earth.” Madison began to change his mind.

Madison ran against Virginian James Monroe for a seat in the House of Representatives and made a campaign promise to support a bill of rights, particularly liberty of conscience. He also composed President George Washington’s Inaugural Address, which indicated support for a bill of rights in the First Congress.

Representative Madison became the champion for a bill of rights in the First Congress, but met a hostile reception for the idea. Most representatives and senators thought that the Congress had more important work to do setting up the new government. Madison was undeterred and dedicated to the cause of protecting the people’s liberties.

On June 8, 1789, Madison rose on the floor of the House to deliver a speech in favor of a bill of rights. His arguments were founded on a harmonious political order and the ideals of justice. A bill of rights would convince the Antifederalists of the “principles of amity and moderation” from the Federalists, especially when they fulfilled a sacred promise made during the ratification debate. Rhode Island and North Carolina, which had withheld their ratification of the Constitution, would also join the Union. Mostly, the Bill of Rights would “expressly declare the great rights of mankind secured under this constitution.”

Madison then skillfully guided the amendments through the Congress. He reconciled all the various proposals for amendments from the state ratifying conventions and kept the amendments protecting essential liberties. He wanted them to be woven into the text of the Constitution, and sought a key amendment to protect religious freedom, a free press, and a trial by jury against violation by state governments. He lost both these provisions but still guided the Bill of Rights through Congress. Congress approved twelve amendments, and President Washington sent them to the states.

On December 15, 1791, Virginia became the last state to ratify the first ten amendments known as the Bill of Rights. The Bill of Rights fulfilled Madison’s goals of reconciling the opponents of the Constitution and protecting individual liberties. He did not get everything he wanted but compromised often along the way to secure limited government and the essential rights of the people.

Tony Williams is a Constituting America Fellow and the author of Washington & Hamilton: The Alliance that Forged America and the forthcoming Hamilton: An American Biography.

Constituting America’s Ninth 90 Day Study on State and Local Government

Preface: The Tenth Amendment to the United States Constitution reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” The amendment’s purpose is intended to strengthen the Founders’ resolve that each American maintains ownership of the United States government on every level, and to which each entrusts a position of leadership among its elected. In this way, the American people remain free to govern themselves through leaders they choose. The U.S. Constitution, Federalist Papers among other founding discussions, displays how the smaller governing bodies magnify local control each American citizen must keep. This control within agreed upon, respective state constitutions ensures governing remains surrendered to the American people and not surrendered by the American people to an unreachable federal level that cannot be checked or replaced by each citizen who put it there. The 2019 Constituting America 90 Day Study on State and Local Government expounds upon the gravity of that which makes America thrive due to strict limits of its federal governing powers, directing attention to the true holders of America’s power, her people, and consent of the governed that results in a flourishing United States.

Condensed Table of Contents

  • Introduction
  • States and Their Constitutions: History Surrounding Admission of Each New State to the Union
    • First States – The Thirteen Original Colonies After the American Revolutionary War and Constitutional Convention (1787)
    • New States and the American Industrial Revolution (1791)
    • Westward Expansion (1803)
    • Admission of States, and the Civil War (1861-1865)
  • A Growing United States to World War I (1914-1918), the Great Depression and New Deal to the Gulf War (1990-1991)
  • Statewide Leadership and Representation
  • County and City Leadership, and Representation
  • Judges: State, County and City Judiciary
  • Funding State and Local Government
  • Elections: State, County and City
  • Contemporary Issues in State and Local Government
  • Conclusion

Detailed Table of Contents With Links to Essays as They Are Published

Introduction – History and constitutional background of American Founders’ and Framers’ views on local governments for a strong, free, prosperous United States

Tenth Amendment to the United States Constitution – Purpose for limited federal powers and what the amendment means for state and local government; Bill of Rights as “a Line drawn as clearly as may be between the federal Powers vested in Congress and the distinct Sovereignty of the several States upon which the private and personal Rights of the Citizens depend.” – Samuel Adams

Federalist 45 on Connection of the States to the Federal Level – “…each of the principal branches of the federal government will owe its existence more or less to the favor of the State governments, and must consequently feel a dependence, which is much more likely to beget a disposition too obsequious than too overbearing towards them.” – James Madison

States and Their Constitutions: History Surrounding Admission of Each New State to the Union

  • American Revolution and Expanding the States – How the American Revolution and nationhood voided the Proclamation Line of 1763, allowing expansion for American settlement of the Western frontier by Craig Bruce Smith, Ph.D., Assistant Professor of History, William Woods University
  • Free, Independent and Sovereign? – The Declaration of Independence on free, independent, sovereign states as the original 13 colonies came together to form the United States; what this meant for state powers and the growing nation as a whole by William Morrisey, William and Patricia LaMothe Chair in the United States Constitution, Hillsdale College; Constituting America Fellow; Author, Self-Government, The American Theme: Presidents of the Founding Civil War; and The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government
  • Free and Independent: The States’ Declaration and the Articles of Confederation – The Declaration of Independence on free, independent, sovereign states as the original 13 colonies came together to form the United States; what this meant for state powers and the growing nation as a whole by Jennie Jones, Instructor of Government and History, Weatherford College

Religious Freedom and Early State Constitutions – Meaning of, and how early state constitutions worked regarding religious freedom and the First Amendment

State Constitutions? – Why would each state need a constitution when we have the United States Constitution? What it would mean for the states to be run by their citizens rather than royal rule

 First States – The Thirteen Original Colonies After the American Revolutionary War and Constitutional Convention (1787) 

1 – Delaware – December 7, 1787 

As the Constitutional Convention came to a close in Philadelphia, America’s founding representatives signed the United States Constitution on September 17, 1787. Then, the first of the thirteen original states to ratify (approve, endorse, accept, formally confirm, validate, sign) the new U.S. Constitution, which replaced the Articles of Confederation, was Delaware, signing on December 7, 1787. This signing admitted (entered, received statehood) Delaware, known as “The First State,” to the United States December 7, 1787. The current Delaware State Constitution in use was adopted in 1897

2 – Pennsylvania – December 12, 1787

Birthplace of independence and the United States Constitution. “The Keystone State,” Pennsylvania is second of the thirteen original states to ratify the U.S. Constitution and enter the United States. The Pennsylvania State Constitution currently in use was adopted in 1968

3 – New Jersey – December 18, 1787

Third of the thirteen original states to ratify the U.S. Constitution and join the United States, “The Garden State” of New Jersey entered the United States December 18, 1787. The New Jersey State Constitution in use today was adopted in 1948

4 – Georgia – January 2, 1788

Georgia is fourth of the thirteen original states to ratify the U.S. Constitution to join the United States of America January 2, 1788. Georgia joined the Confederacy January 19, 1861. The Georgia State Constitution that is the latest version and currently in use was adopted in 1983. Georgia is known as “The Peach State” or “Empire State of the South.”

  • Georgia on My Mind by Martha Zoller, Policy Advisor, Office of the Governor, Brian Kemp; Political Pundit; Former Congressional Candidate, Georgia

5 – Connecticut – January 9, 1788

Fifth of the thirteen original states to ratify the U.S. Constitution, Connecticut was admitted to the United States January 9, 1788. The Connecticut State Constitution currently in use was adopted in 1965, and is known as “The Constitution State.”

6 – Massachusetts – February 6, 1788

“The Bay State,” Massachusetts, is sixth of the thirteen original states to ratify the U.S. Constitution and thus be admitted to the Union of the United States. The Massachusetts State Constitution adopted its current one in use was adopted in 1780

7 – Maryland – April 28, 1788

Maryland is the seventh state admitted to the United States, ratifying the U.S. Constitution April 28, 1788. The current Maryland State Constitution in use was adopted in 1867. Maryland is known as the “Old Line State.”

Secession – Reasons and consequences for states seceding from the Union; strength of America and why states do not secede today

8 – South Carolina – May 23, 1788

The eighth state to ratify the U.S. Constitution, South Carolina, was admitted to the United States May 23, 1788. It was also the first state to secede from the Union. The current South Carolina State Constitution was adopted in 1896. South Carolina is known as “The Palmetto State.”

9 – New Hampshire – June 21, 1788

Known as “The Granite State,” New Hampshire was ninth of the thirteen original states to ratify the U.S. Constitution, admitting it to the Union June 21, 1788. The New Hampshire State Constitution in use today was adopted in 1783. Article VII of the U.S. Constitution says nine states would be sufficient to ratify and officially make the U.S. Constitution law of the land. New Hampshire was the ninth and final state needed to accomplish this official ratification which ended government under the Articles of Confederation

10 – Virginia – June 25, 1788

“Old Dominion” as Virginia is known, was tenth of the thirteen original states to ratify the U.S. Constitution, admitting it to the Union June 25, 1788. The Virginia State Constitution in current use was adopted in 1971; the Virginia Constitution of 1776 compared to the MA Constitution of 1780

11 – New York – July 26, 1788

Eleventh of the thirteen original states to ratify the U.S. Constitution, New York was admitted to the Union July 26, 1788 and is known as “The Empire State.” The current New York State Constitution was adopted in 1895

12 – North Carolina – November 21, 1789

Twelfth of the thirteen original states to ratify the U.S. Constitution, North Carolina, “The Tar Heel State,”  was admitted to the United States November 21, 1789. The North Carolina State Constitution currently in use was adopted in 1971

13 – Rhode Island – May 29, 1790

Last of the thirteen original states to ratify the U.S. Constitution, Rhode Island was admitted to the Union May 29, 1790. The Rhode Island State Constitution in current use was adopted in 1986. Rhode Island is known as “The Ocean State.”

  • Rhode Island: The Small Colony That Solidified the United States by Kyle Scott, Ph.D., Board of Trustees, Lone Star College System; Professor of Political Science, University of Houston; Author of The Limits of Politics: Making the Case for Literature in Political Analysis, and The Federalist Papers: A Reader’s Guide

Admitting States to the Union – Article IV, Section 3 on entry of new states to the Union, and how the U.S. Constitution protects each state individually and as a whole nation; all of the original thirteen states except Rhode Island sent delegates to the 1787 Constitutional Convention to complete the new U.S. Constitution that includes Article IV; the Northwest Ordinance

 

New States and the American Industrial Revolution (1791)

 

14 – Vermont – March 4, 1791

On March 4, 1791, Vermont, known as “The Green Mountain State” was the first admitted to the Union after the U.S. Constitution was ratified by the original thirteen colonies. The current Vermont State Constitution in use was adopted in 1793

15 – Kentucky – June 1, 1792

Known as “The Bluegrass State,” Kentucky is the fifteenth state to enter the Union, having ratified the U.S. Constitution June 1, 1792. The current Kentucky State Constitution in use was adopted in 1891

16 – Tennessee – June 1, 1796

Tennessee entered the Union as the sixteenth state, having ratified the U.S. Constitution June 1, 1796. “The Volunteer State” currently uses its latest version of the Tennessee State Constitution adopted in 1870

 

Westward Expansion (1803)

 

17 – Ohio – March 1, 1803

The seventeenth state to enter the Union, known as “The Buckeye State,” Ohio ratified the U.S. Constitution on March 1, 1803. The current Ohio State Constitution in use was adopted in 1851

18 – Louisiana – April 30, 1812

Known as “The Pelican State,” Louisiana was the eighteenth admitted to the United States, ratifying the U.S. Constitution April 30, 1812 just before the start of the War of 1812. The current Louisiana State Constitution in use was adopted in 1975; Louisiana Purchase, territory history prior to the statehood

Guest Essayist:

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

19 – Indiana – December 11, 1816

The U.S. Constitution ratification date of December 11, 1816 marks Indiana as the nineteenth state to enter the Union. The Indiana State Constitution currently in use was adopted in 1851. Indiana is known as “The Hoosier State.”

20 – Mississippi – December 10, 1817

“The Magnolia State” of Mississippi is the twentieth admitted to the Union, having ratified the U.S. Constitution December 10, 1817. The current Mississippi State Constitution in use was adopted in 1890

21 – Illinois – December 3, 1818

Admitted to the Union December 3, 1818, Illinois is the twenty-first state to ratify the U.S. Constitution. Known as “The Prairie State,” the Illinois State Constitution adopted in 1970 is the version currently used

22 – Alabama – December 14, 1819

The December 3, 1818 ratification of the U.S. Constitution by Alabama brought the twenty-second state into the Union. “The Heart of Dixie” currently uses the Alabama State Constitution adopted in 1901

23 – Maine – March 15, 1820

Known as “The Pine Tree State,” Maine is the twenty-third to enter the Union, doing so by ratifying the U.S. Constitution on March 15, 1820. The current Maine State Constitution in use was adopted in 1820

24 – Missouri – August 10, 1821

“The Show-Me State” of Missouri ratified the U.S. Constitution August 10, 1821 making it the twenty-fourth state to join the United States. The Missouri State Constitution currently in use was adopted in 1945

Founders’ Vision for Keeping the States Strong, United, and Free – Thomas Jefferson’s 1798 Nullification in the Kentucky Resolution, how it contributed to John Calhoun’s 1830s Nullification, acts showing how each state has a duty and right to question and determine if federal laws exceed constitutional limits on federal powers, obstructing state sovereignty

25 – Arkansas – June 15, 1836

Twenty-Fifth of the growing United States to be added was Arkansas, known as “The Natural State.” The current Arkansas State Constitution in use today was adopted in 1874

26 – Michigan – January 26, 1837

Michigan, known as “The Wolverine State,” was admitted to the United States January 26, 1837 making it the twenty-sixth to ratify the U.S. Constitution. The current Michigan State Constitution in use was adopted in 1963

27 – Florida – March 3, 1845

On March 3, 1845, Florida, “The Sunshine State,” ratified the U.S. Constitution admitting it to the Union as the twenty-seventh state. The adopted 1968 Michigan State Constitution is the version in use today

28 – Texas – December 29, 1845

The “Lone Star State” of Texas ratified the U.S. Constitution on December 29, 1845 making it the twenty-eighth to enter the Union. The Texas State Constitution currently in use was adopted in 1876

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

29 – Iowa – December 28, 1846

The U.S. Constitution ratified by Iowa on December 28, 1846 admitted “The Hawkeye State” as the twenty-ninth to enter the Union. The 1857 Iowa State Constitution is the adopted version currently in use

30 – Wisconsin – May 29, 1848

Thirtieth to join the United States, Wisconsin, known as “The Badger State,” ratified the U.S. Constitution May 29, 1848. The Wisconsin State Constitution currently in use was adopted in 1848

  • “On Wisconsin!” by Val Crofts, Social Studies Teacher, Wisconsin; Member, U.S. Semiquincentennial Commission

31 – California – September 9, 1850

Ratifying the U.S. Constitution September 9, 1850, California, known as “The Golden State,” was the thirty-first admitted to the United States. The California State Constitution adopted in 1879 is the version currently in use; the Mexican War and Compromise of 1850

Guest Essayists:

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

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

32 – Minnesota – May 11, 1858

Minnesota ratified the U.S. Constitution May 11, 1858 making it the thirty-second to join the United States. The current Minnesota State Constitution in use today was adopted in 1857. Minnesota is known as “The North Star State.”

33 – Oregon – February 14, 1859

Joining the Union February 14, 1859 by ratifying the U.S. Constitution, Oregon became the thirty-third state. Currently in use is the Oregon State Constitution ratified in 1857, and adopted in 1859 once Oregon became a state

 

Admission of States, and the Civil War (1861-1865)

 

34 – Kansas – January 29, 1861

“The Sunflower State,” as Kansas is known, ratified the U.S. Constitution January 29, 1861 as the thirty-fourth admitted to the United States. Prior to the start of the Civil War and eight states having just seceded, Kansas was admitted as a free state; Bleeding Kansas; The Kansas State Constitution currently in use was adopted in 1861

Guest Essayist:

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

35 – West Virginia – June 20, 1863

Admitted in June 20, 1863 by ratifying the U.S. Constitution, West Virginia became the thirty-fifth state. It is known as “The Mountain State” with the West Virginia State Constitution in current use adopted in 1872

Guest Essayists:

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

Gary Porter, Executive Director, Constitution Leadership Initiative

36 – Nevada – October 31, 1864

The thirty-sixth state admitted to the Union was Nevada, having ratified the U.S. Constitution October 31, 1864. “The Silver State,” as it is known, currently uses the Nevada State Constitution adopted in 1864

Guest Essayist:

Andrew Langer, President, Institute for Liberty; Host, The LangerCast, RELMNetwork.com; Constituting America Fellow

37 – Nebraska – March 1, 1867

March 1, 1867 ushered in the thirty-seventh state, Nebraska, to ratify the U.S. Constitution and join the United States. The Nebraska State Constitution in use today was adopted in 1875. Nebraska is known as “The Cornhusker State.”

Guest Essayist:

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

Bill of Rights, State and Local Government – How the Bill of Rights was aimed at the federal government because states had their own bills of rights; Barron v. Baltimore (1833) supports this until the Fourteenth Amendment, ratified in 1868

Guest Essayists:

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

Gary Porter, Executive Director, Constitution Leadership Initiative

38 – Colorado – August 1, 1876

Colorado, “The Centennial State,” ratified the U.S. Constitution August 1, 1876, making it the thirty-eighth state to enter the Union. The year 1876 also marks adoption of the Colorado State Constitution in use today

Guest Essayist:

David Kopel, Research Director at the Independence Institute, and Adjunct Professor of Advanced Constitutional Law at Denver University, Sturm College of Law

39 – North Dakota – November 2, 1889

Ratifying the U.S. Constitution November 2, 1889, North Dakota was admitted to the Union as the thirty-ninth state. Known as “The Peace Garden State,” it uses the North Dakota State Constitution adopted in 1889

Guest Essayists:

Donna Pearson and Kim Porter to co-author, University of North Dakota

40 – South Dakota – November 2, 1889

The “Mount Rushmore State” of South Dakota, on the same day as its northern counterpart, ratified the U.S. Constitution November 2, 1889 making it the fortieth to enter the United States. Plus, in the same year of 1889, the South Dakota State Constitution in use today was adopted

Guest Essayist:

Patrick Garry, Professor of Law, University of South Dakota

41 – Montana – November 8, 1889

Entering the Union as the forty-first state, Montana ratified the U.S. Constitution November 8, 1889 and is known as “The Treasure State.” The current Montana State Constitution in use was adopted in 1973

42 – Washington – November 11, 1889

Washington, known as “The Evergreen State,” became the forty-second to ratify the U.S. Constitution, admitted to the Union November 11, 1889. The Washington State Constitution was adopted in 1889 and is the version in use today

Modern State and the Capacity for Political Liberty of Citizens to Participate in Civil Governance –Debate on ‘overseas empire’ and its implications for federalism as structured within the U.S. Constitution

Guest Essayist:

William Morrisey, William and Patricia LaMothe Chair in the United States Constitution, Hillsdale College; Constituting America Fellow; Author, Self-Government, The American Theme: Presidents of the Founding Civil War; and The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government

43 – Idaho – July 3, 1890

Known as “The Gem State,” Idaho ratified the U.S. Constitution July 3, 1890 admitting the forty-third state to the Union. The Idaho State Constitution currently use today was adopted on the same day as the state’s admission to the Union, July 3, 1890

Guest Essayist:

Gary Porter, Executive Director, Constitution Leadership Initiative

44 – Wyoming – July 10, 1890

July 10, 1890 marks the admission of Wyoming as the forty-fourth state to ratify the U.S. Constitution and join the United States. Known as “The Equality State,” it currently uses the Wyoming State Constitution adopted in 1889

45 – Utah – January 4, 1896

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

46 – Oklahoma – November 16, 1907

Forty-sixth to ratify the U.S. Constitution was “The Sooner State,” Oklahoma, thus admitting it to the United States. The Oklahoma State Constitution adopted in 1907 is the current version used today 

47 – New Mexico – January 6, 1912

Admitted to the United States January 6, 1912, New Mexico became the forty-seventh state to ratify the U.S. Constitution. The New Mexico State Constitution used today is the version adopted on the same day as its statehood, January 6, 1912. New Mexico is known as “The Enchanted State.”

48 – Arizona – February 14, 1912

“The Grand Canyon State” of Arizona became the forty-eighth and last of the contiguous states to enter the Union, ratifying the U.S. Constitution February 14, 1912. The Arizona State Constitution in use today was adopted in 1912

 

A Growing United States to World War I (1914-1918), the Great Depression and New Deal to the Gulf War (1990-1991)

 

49 – Alaska – January 3, 1959

Known as “The Last Frontier,” Alaska was the forty-ninth to ratify the U.S. Constitution and be admitted to the United States. The Alaska State Constitution currently in use was actually ratified in 1956 before Alaska entered the Union, and went into effect upon statehood January 3, 1959

Guest Essayist:

Bethany L. Marcum, Executive Director, Alaska Policy Forum

50 – Hawaii – August 21, 1959

The last and fiftieth state to enter the Union, “The Aloha State” of Hawaii, ratified the U.S. Constitution August 21, 1959. The Hawaii State Constitution adopted in 1959 is the version in use today

Territories of the United States – Major territories of the U.S. include American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands; history surrounding types of territories or commonwealths connected to the United States; how the Organic Act establishes a U.S. territory and its governance; purpose and difference between remaining a territory or obtaining statehood

State Capitals and State Capitols – Importance of state capital cities and their respective state capitol buildings where legislatures meet; significances even in design and construction offering symbols of America’s history with separate places for the house, senate, governor and state judiciaries as reminders of the separation of powers in every level of government from federal to local as envisioned by America’s Founders and Constitution Framers

Guest Essayist:

Greg Davidson, Executive Clerk to the Governor

Washington, D.C. – February 21, 1871

While not a state in the Union, Washington, D.C. was founded July 16, 1790 and serves as the nation’s capital. The name is derived from America’s first president, George Washington, who selected the location. The federal district is named for Christopher Columbus, and officially the nation’s capital became the District of Columbia on February 21, 1871; the Twenty-Third Amendment to the United States Constitution provides D.C. ability to participate in the Electoral College

 

Statewide Leadership and Representation

 

Form of Government – Purpose and impact of Article IV, Section 4 of the U.S. Constitution in that “The United States Shall guarantees to every state in the Union a Republican Form of Government” – How the republican (representative) styles such as Commission Form, County Administrator, Elected Executive, City-County Consolidation, Constitutional Row Offices or Home Rule Authority ensures power remains in the hands of each American, preventing a monarchy or aristocracy in each state and local government

Guest Essayists:

Marc Clauson, Professor of History and Political Economy, and Professor in Honors, Cedarville University

Gary Porter, Executive Director, Constitution Leadership Initiative

State Representation – How state representation is set up, how most have a bicameral system like Congress; significance of Nebraska as a unicameral legislature

Governor – Role and purpose of a state governor

Guest Essayist:

Greg Davidson, Executive Clerk to the Governor

Appointments – Influence and impact appointments have on state governments as made by the governor; how appointments are made, and which ones must the state legislature approve

Guest Essayist:

Greg Davidson, Executive Clerk to the Governor

Lieutenant Governor – Role, purpose and how the lieutenant governor serves as president of the senate in some states

Legislative Sessions of State Legislatures – History, role and purpose of state legislatures; how often state legislatures are in session and in relation to Congress

Guest Essayist:

Greg Davidson, Executive Clerk to the Governor

Special Sessions – Purpose and importance of a special session called by the governor or legislature; impact of long legislative sessions on state and local, depending on the state or region

Guest Essayist:

Greg Davidson, Executive Clerk to the Governor

State Senators – Role and purpose, how a state senate (upper chamber) is smaller than a state house of representatives (lower chamber), yet each senator represents more people than the representatives

State Representatives – Role and purpose of state representatives

Speaker of the State House of Representatives – How chosen in most states, speaker purpose and roles

Attorney General – Role and purpose for attorneys general of the states; history, and as compared to the Attorney General of the United States

Secretary of State – Role and purpose for the secretary of state or commonwealth of the states; history, and as compared to the Secretary of State of the United States

 

County and City Leadership, and Representation

 

“All Politics is Local” – The view that “all politics is local” and why; purpose for the amount of local governments that exist such as counties, municipalities, towns and townships, special districts and school districts within the United States; effects of sparse versus dense geographic areas represented, urban versus rural for effective, constitutional representation

Guest Essayists:

Marc Clauson, Professor of History and Political Economy, and Professor in Honors, Cedarville University

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

County Leadership – Elected and appointed county roles; purpose and impact of county boards, county executives, county managers, assessor, treasurer, supervisor, commissioners; history and development of counties and their governance, functions of the county seat; how some are airport hubs, for example, and maintain other significant functions different from city government; relationship to state level leadership for local management of statewide issues

Guest Essayist:

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

City Leadership – Elected and appointed city roles; purpose of city council and impact of local city councils, city managers, administrators and other municipal, legislative bodies

Guest Essayist:

J. Eric Wise, Partner, Gibson Dunn & Crutcher LLP in New York City

Mayor – Role of a mayor, and significance in how states differ regarding the mayoral role as compared to other elected seats; how in some states a city mayor may carry significant power as compared to that of the governor; examples such as Mayors Robert Moses or Rudy Giuliani of New York City and how each, in his service, affected not only the city but the entire state

Home Rule or Dillon Rule? – Meaning, purpose and impact of “Home Rule” or “Dillon Rule” authority, how each works for local government in comparison to state; initiative and referendum, delegation and management to make and implement local policy decisions as made by voters and local leadership

Guest Essayist:

Marc Clauson, Professor of History and Political Economy, and Professor in Honors, Cedarville University

Gary Porter, Executive Director, Constitution Leadership Initiative

 

Judges: State, County and City Judiciary

 

Lower Courts – How local judiciary systems work; lower courts from state supreme to municipal that sit below the United States Supreme Court

Guest Essayist:

Gary Porter, Executive Director, Constitution Leadership Initiative

State Supreme Courts – How state supreme courts work in relation to the United States Supreme Court; how America’s Founders intended the nation’s judiciary would serve as lower than, and not superior to, the legislative branch in order only to function as interpreter and not maker of law; Alexander Hamilton in Federalist 78, “The interpretation of the laws is the proper and peculiar province of the courts.”

Guest Essayist:

Daniel A. Cotter, Adjunct Professor, The John Marshall Law School; Past President, The Chicago Bar Association

Judicial Finality and Effects on State and Local Government – Reconsidering Judicial Finality, an essay by Louis Fisher from his book on Reconsidering Judicial Finality and the Supreme Court, with an emphasis on state and local effects

Guest Essayist:

Louis Fisher, Scholar in Residence, Constitution Project; Former Senior Specialist in Separation of Powers, Congressional Research Service and Specialist in Constitutional Law with the Law Library of Congress. Author, including the forthcoming, Reconsidering Judicial Finality: Why the Supreme Court is Not the Last Word on the Constitution (University Press of Kansas, spring of 2019)

 

Funding State and Local Government

 

Taxation and the States – Concerns that the Constitution did not explicitly restrain elected officials by specific limitations on the taxing power, then they will use the taxation power to extend the reach of federal government

Guest Essayist:

Gordon Lloyd, Professor of Public Policy, Pepperdine University; National Advisory Council, Walter and Leonore Annenberg Presidential Learning Center, Ronald Reagan Presidential Foundation; Co-author: The Two Narratives of Political Economy

Funding States and Cities: How Dollars Work – Connection to Congress regarding funding of states and municipalities; how taxes, which is how governments have money, work for the United States as a whole and individual states down to the most local levels; what and how from federal, to state, to county, to city gets funded

Funding States and Cities: The Arguments – Why America’s founders wanted limited government; what this means in relation to the ongoing arguments presented by America’s voters and their elected representatives for and against raising and lowering taxes

Comptroller, Tax Assessor/Collector – Role and purpose for the states as an elected or appointed office in charge of the state budget

State Agencies – How agencies work, their connections to federal government, impact on state and local governments as bureaucracies; whether agencies help or weaken individual constituent representation

 

Elections: State, County and City

 

Apportionment – Population and how it works to affect development of not only congressional representation, but also city, county and state governing bodies, and districts

Guest Essayist:

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

Statewide Elections – Role, importance, and how statewide elections differ from federal elections

Down-Ballot – How local elections differ from statewide elections; role and importance of local elections though they tend to receive lower voter turnout

Guest Essayist:

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

 

Contemporary Issues in State and Local Government

Time to Reawaken Federalism –An essay on the roots of our nation’s debt and dysfunction today

Guest Essayist:

Michael Maibach, Managing Director and Board of Trustees, James Wilson Institute on Natural Rights and the American Founding

The Importance of “Clearing Title” to Public Lands – An aspect of protecting property rights and encouraging settlement of western lands

Guest Essayist:

Andrew Langer, President, Institute for Liberty; Host, The LangerCast, RELMNetwork.com; Constituting America Fellow

The Federal Government’s “Duty to Dispose” of Public Lands – When states became states, and the federal government’s failure to make good on the agreement

Guest Essayist:

Andrew Langer, President, Institute for Liberty; Host, The LangerCast, RELMNetwork.com; Constituting America Fellow

Land and the States – How the massive ownership of federal lands in western states negatively impacts state and local governance

Guest Essayists:

Andrew Langer, President, Institute for Liberty; Host, The LangerCast, RELMNetwork.com; Constituting America Fellow

Regulations – Effects of congressional regulations on issues held by the states, intrastate and interstate

Would the United States Exist Without Borders? – Significance of borders between cities, counties, each state in the Union, and the entire United States

Civil Society and Local Government – Meaning, importance and how free and independent states of America maintain it; civil as related to citizens and their concerns; polite, courteous, well-mannered approach; consequences for failure in relation to solving political concerns and issues today

Guest Essayist:

William Morrisey, William and Patricia LaMothe Chair in the United States Constitution, Hillsdale College; Constituting America Fellow; Author, Self-Government, The American Theme: Presidents of the Founding Civil War; and The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government

Battle for Power Between Congress and the States – How to keep the Founders’ intentions for “we the people” who are in charge of their own governing

Guest Essayist:

J. Eric Wise, Partner, Gibson Dunn & Crutcher LLP in New York City

 

Conclusion – Reserved

 

Click Here to sign up for the free “Today’s Essay” for this year’s 90 Day Study! 

Are you allowing political discussions at your holiday gatherings? Probably not.

 

Our society is losing the ability to have a civil civic conversation. And this is bleeding into our ability to discuss meaningful political issues, even with those we love.

 

My generation wants to change this. And we can, if we are given the tools to do so.

 

68% of middle school and high school students said they would benefit from an interactive presentation on civil civic conversation, using role-playing activities to show the art of conversation. This is something I wish I had experienced in my high school.

 

As a student, I often disagreed with my peers on political matters. Political topics were often avoided during conversations out of fear of disagreement and arguments arising. One day, I decided to invite one of my classmates (who was the polar opposite of me on every political issue) to sit with me at lunch to try to find common ground.

 

We found we agreed on 5%! Although it wasn’t much, we found that we both loved our country and wanted the best for the American people. And more importantly we were able to listen to each other calmly and present our beliefs in a non-emotional way. We took the time to listen to each other to understand, not just to respond.

 

With your generous support, we can teach America’s students
the art of civil, civic conversation.

 

62% of students said controversial issues should be discussed in the classroom. We are willing to talk about the meaningful issues facing our nation! But here’s the catch. 60% of educators said they are unwilling to bring up controversial issues in the classroom.

 

Not only are students not learning about the U.S. Constitution like they used to, they are not being allowed to discuss controversial issues in class. Therefore, they are not learning how the Constitution is relevant today.

 

This is where Constituting America, with your help, can make a difference! This year we spoke to over 80 classrooms and civic organizations, a 23% increase from last year! We spoke to students about the nonpartisan relevancy of the U.S. Constitution AND taught them how to incorporate constitutional values into civil, civic conversations.

 

In our first ever focus group and poll, made possible by a generous donor, Constituting America discovered the problems facing our students today:

 

● One high school senior mentioned that she felt unprepared for college by not speaking about or forming an opinion about specific issues in high school. The fact that her teachers did not express their opinions “set a precedent for students to not share their opinion, or be less willing to.”

● A high school junior mentioned that his teachers “[don’t] want to hear about it and say not to talk about it,” even if the topic is school appropriate.

 

There is a clear disconnect between students’ desire to interact with and become informed about both sides of controversial issues and the options provided to them by our school system.

 

With your generous support we will be adding a role-playing segment to our constitution education presentation.

 

We want to give students real life experience in applying their Constitutional knowledge to issues of the day. We will invite students to argue on both sides of issues, so their peers get the opportunity to hear both sides, teaching them how to listen to those with whom they disagree…civilly!

 

But we can’t execute our “Civil Civic Conversation” program without your generous support!

 

Will you make your best year-end gift to fund our 2019 programs, including our Civil Civic Conversation initiative?

 

Your tax deductible, year-end gift today will ensure that we start next year in a strong position to teach the Constitution through the many programs we offer. We thank you from the bottom of our hearts for your continued support of Constituting America.

 

Together, we can ensure that my generation is able to heal the partisan divide plaguing our nation, equipped with the tools in our great Constitution.

 

All my best,

Juliette Turner

Executive Director

 

PS – Your generous year-end donation will fund the many school speaking requests we already have for the spring semester, our upcoming summer Winner Mentor Trip, and our 90 Day Study on the importance of state sovereignty within our federal system. We thank you in advance for the best gift your budget will allow.

 

Reprinted from the Library of Congress

Click here for the original document and more information

A copy of this proclamation was sent to the executives of the States by the President in a brief form letter (October 3). This form is recorded in the “Letter Book” in the Washington Papers.

City of New York, October 3, 1789.

Whereas it is the duty of all Nations to acknowledge the providence of Almighty God, to obey his will, to be grateful for his benefits, and humbly to implore his protection and favor, and Whereas both Houses of Congress have by their joint Committee78 requested me “to recommend to the People of the United States a day of public thanks-giving and prayer to be observed by acknowledging with grateful hearts the many signal favors of Almighty God, especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness.”

The Senate concurred in the House resolve to this effect, September 26.

Now therefore I do recommend and assign Thursday the 26th. day of November next to be devoted by the People of these States to the service of that great and glorious Being, who is the beneficent Author of all the good that was, that is, or that will be. That we may then all unite in rendering unto him our sincere and humble thanks, for his kind care and protection of the People of this country previous to their becoming a Nation, for the signal and manifold mercies, and the favorable interpositions of his providence, which we experienced in the course and conclusion of the late war, for the great degree of tranquillity, union, and plenty, which we have since enjoyed, for the peaceable and rational manner in which we have been enabled to establish constitutions of government for our safety and happiness, and particularly the national One now lately instituted, for the civil and religious liberty with which we are blessed, and the means we have of acquiring and diffusing useful knowledge and in general for all the great and various favors which he hath been pleased to confer upon us.

And also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations and beseech him to pardon our national and other transgressions, to enable us all, whether in public or private stations, to perform our several and relative duties properly and punctually, to render our national government a blessing to all the People, by constantly being a government of wise, just and constitutional laws, discreetly and faithfully executed and obeyed, to protect and guide all Sovereigns and Nations (especially such as have shown kindness unto us) and to bless them with good government, peace, and concord. To promote the knowledge and practice of true religion and virtue, and the encrease of science among them and Us, and generally to grant unto all Mankind such a degree of temporal prosperity as he alone knows to be best.79

From the original in the writing of William Jackson. It was signed by Washington, who had written in the day “third” in the date.

This was the first national Thanksgiving Day proclamation under the Constitution.

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If the writers contributing to this year’s 90-Day Study have identified a main theme for their essays, it is the difference between the way Congressional representatives understood their Constitutional duties in the first century-and-a-quarter of our Union and the ways Congressmen have come to act since Progressivism came to dominate American opinion. From a lawmaking institution whose members consulted the Constitution and, behind it, the natural rights enunciated in the Declaration of Independence, Congress has become a constituent-service institution which attempts to oversee and negotiate with the bureaucratic apparatus of a massive national state. To be sure, it still debates and enacts laws, but very often leaves the details of those laws to the administrative agencies which enforce them, agencies which collectively amount to a fourth branch of government, and an unelected one at that. Given the re-conception of the Constitution as a ‘living’ or ‘elastic’ document, those laws may have only a remote connection to the plain meaning of the (formerly) supreme law of the land.

It has become difficult for us even to conceive of the way Congress once operated, and indeed how American politics and government generally once operated. For this, we need to turn to an eyewitness, and as luck would have it, we have one.

At the age of twenty-four, a future newspaper reporter and editor, recently a schoolteacher in the Erie Canal town of Lockport, New York, met and took the measure of the most distinguished cohort of United States senators in our history as those men attempted to navigate the American Union around the most dangerous regime crisis since the American Revolution itself. Thomas Jefferson had predicted that the presence of slaves in the land of the free was “the rock upon which the old Union would split,” and that rock sat just beneath the surface when Oliver Dyer arrived for work at the Senate for the session of 1848-49.

The Mexican War had just concluded, and new territories wrested from Mexico, including California, had been annexed. The plantation oligarchs who controlled the governments of the Southern states had seen that only the acquisition of new territories and ultimately the addition of new states in which slavery was legal, would protect their ‘peculiar institution’ (and thereby their political power) from the solidly anti-slavery Northern states, which were outpacing the South in population and industrial wealth. With popularly-based House of Representatives firmly in Northern hands, and likely to remain so, the Senate, its membership unaffected by population shifts, stood as the oligarchs’ best power base for defending their regimes and even extending their influence in the federal government. As Dyer writes, “It was the fixed policy of the South to keep the free States from outnumbering the slave states.”

With the sympathetic James K. Polk in the White House, “the war was forced on for the purpose of acquiring territory into which slavery could be extended.” But the bill appropriating funds for fighting the war had a rider attached by Pennsylvania Democratic House member David Wilmot of Pennsylvania, stipulating that no territories acquired from Mexico would allow slavery. This “greatly embittered and exasperated the South,” “for it struck at the very life of slavery, inasmuch as to limit slavery was to strangle it.” The Wilmot Proviso eventually “was killed in Congress,” but “it survived in the country,” and Dyer now knew as he wrote his memoir in 1889, the regime struggle between Southern oligarchic regimes and Northern republican regimes would end only at Appomattox or, more accurately, only with the post-Civil War attempt at ‘Reconstruction’ or regime change in the South by the triumphant republicans.

As early as the 1830s, genuinely factional political parties had begun to arise in the United States. The Founders had hoped to avoid the formation of such parties, parties organized not merely around various local interests and divergent national policies, but the fundamental issue of what kind of political regime the United States should have. The Founders had hoped that they had settled this matter: The United States was to be a democratic and commercial federal republic. But as the invention of the cotton gin made slaveholding more profitable, Southern plantation owners consolidated oligarchic instead of republican regimes in their states. The struggle between democratically-based republicanism and slaveholder-based oligarchy commenced.

The struggle began within the Democratic Party. Although a slaveholder, Andrew Jackson based his electoral successes in 1828 and 1832 squarely on a popular base; the Democratic Party he established, with the help of his Northern ally, the brilliant political organizer Martin Van Buren, was indeed a democratic party. Opposing him, however, was an even greater organizer and far superior political theoretician, South Carolina Senator John C. Calhoun. Explicitly rejecting the moral foundation of American republicanism as enunciated in the Declaration of Independence—the equal, unalienable rights to life, liberty, and the pursuit of happiness held by all human beings as such—Calhoun instead maintained that the laws of nature and of nature’s God ordained a racial hierarchy entitling plantation oligarchs to rule African slaves without their consent.

Opposing both Jacksonian mass democracy and Calhounian oligarchy, the Whig Party formed in the 1830s out of the remnants of the old, long-defunct Federalist Party, John Quincy Adams’s anti-slavery National Republican Party, and even the short-lived Anti-Masonic Party, which had suspected the secretive Freemasons of conspiring against republicanism. The Whigs wanted to maintain Constitutional safeguards on undiluted majority rule, opposed the extension of slavery into the territories, supported a national banking system as well as interstate railroads and canals, to be funded by protective tariffs which would also defend newly-founded American industries against foreign competition. Whereas the Democrats, still the majority of American voters, found themselves split between Jacksonian republicans and Calhounian oligarchs or ‘aristocratic republicans,’ the Whig coalition had stayed sufficiently unified to elect William Henry Harrison to the presidency in 1840.

The party system had a function that we today might easily overlook. Today, we are accustomed to seeing the administrative tasks of government performed by university-trained professional administrators. But throughout the nineteenth century there was no such class in the United States; professional bureaucracies were a European phenomenon. Who, then, did the administrative work of government in those days? None other than the political parties. Each newly-elected president would appoint ‘his’ partisan supporters to the government, from Cabinet officers down to local postmasters. With so many jobs at stake, interest in election ran very high. With the dangerous and impassioned debate over the character of the American regime on one hand, and the material interest in who would find comfortable work on the other, no one complained of political apathy in the America of that time.

This is where Oliver Dyer’s story begins. Son of a shoemaker, Dyer learned a more promising trade, studying shorthand stenography—what its inventor, the Englishman Isaac Pitman, called “Sound-Hand” in a widely-distributed 1837 pamphlet. (You listen to a “sound”—a speaker’s voice—then hand-write what he says in an abbreviated code which allows you to keep up with even a fast-talking Congressman). Adding some improvements of his own, Dyer marketed the Pitman System to schools and quickly caught the attention of upstate New York politicians, who arranged for him to serve as a recorder for both the Whig Party’s and the anti-slavery Free Soil Party’s conventions of 1848.

There young Dyer learned the ‘low’ side of politics, the politics of party insiders and wire-pullers. He begins his memoir, Great Senators of the United States of Forty Years Ago, with an account of how the Albany-based Whig boss—the marvelously-named Thurlow Weed—teamed with his protégé William Seward to manipulate delegates into nominating Mexican War general Zachary Scott over the celebrated Kentucky Senator Henry Clay—adding, in the bargain, another Weed man, Millard Fillmore, to the ticket. For good measure, Weed then extended a tentacle into the Free Soil Party convention (held on his home turf in upstate New York), arranging the nomination of former president Martin Van Buren. With the erstwhile Democrat Van Buren drawing votes away from Democratic Party nominee Lewis Cass (a “dull, phlegmatic, lymphatic, lazy” Michigan senator “without an atom of magnetism in his nature,” allied with the Calhoun Democrats), Weed’s beneficiary Taylor carried New York and with it the nation. Poor Clay never knew what hit him, but Oliver Dyer did.

Dyer explains “the secret of [Thurlow Weed’s] political power” under the old party-based system of American politics. Newspapers at that time were owned and operated by political parties, and Weed controlled the Albany Evening Journal. Albany was more important than New York City, not only because it was the state capital but because Manhattan Island was icebound in winter; astonishingly to us today, there were no railroad lines running out of Manhattan, whereas politically-connected Albany had them. Weed wrote a regular column in his newspaper, making strategic mention of his political friends and foes alike as he kept the lines of communications open between himself and New York Whigs. “There was seldom a young man, in any part of the State, who gave promise of becoming a person of influence, that was not kindly and flatteringly mentioned in that column, no matter to what party he belonged. And does any one suppose that young men thus mentioned would not feel friendly to Thurlow Wed, and be ready to do him a personal favor?” Indeed so: “Mr. Weed’s kindness, shown at a time when the young man feels the need of a friend, sinks into the depths of his heart and brings forth fruit abundantly.” This beneficence toward the young, who “are perpetually coming on” the stage as “the old are constantly passing off,” extended not only to his fellow Whigs but to young Democrats, as well.  But much more than this, Weed proved a supremely artful political boss, ruling not by command but by influence. After all, he controlled the elected officials who controlled the distribution of jobs. As another young man, Henry Adams, had occasion to observe some years later, Mr. Weed was an entirely unselfish man in one way: he gave but he never took, arranging employment and expecting not mere lucre but only political gratitude in return.

His reportorial credentials and political alliances thus established, it is no wonder that Oliver Dyer found himself on the floor of the United States Senator in December 1848, recording the speeches of John C. Calhoun, Thomas Hart Benton of Missouri, Daniel Webster of Massachusetts, and of Henry Clay himself—the man Abraham Lincoln would call “my beau ideal of a statesman.” From well-played ‘low’ politics to the very high: For the next year Dyer received the best political education of any future journalist of his generation, and maybe of any generation in America. He sketches portraits of all these men, and of several other Senate eminences besides.

He begins with Sam Houston from the newly-admitted state of Texas, “about whose name more romance clustered at that time than encircled the name of any other citizen,” formerly the governor of Tennessee at the age of 34, then self-exiled to Cherokee territory where he “liv[ed] in barbaric dignity” for a short time before capturing Mexican general Santa Anna during the Texas War of Independence, rising to the presidency of the Republic of Texas, and then to election as senator in 1845. Houston had been Dyer’s hero as a boy in Lockport. “As we children on the Niagara frontier were brought up to hate the British, wild beasts, Indians, and foes of every kind whatsoever, and were taught to believe in the good old-fashioned fire and brimstone hell, and in cognate Scripture tenets, undiluted with any revisionary Sheol or Hades, I suppose that our militant religion had a robustness and an edge which are impossible to the faith of boys brought up on the humanitarianism and the diluted theology of the present day. At any rate, we all prayed fervently to God to avenge Travis, Crockett and Bowie on the Mexicans.” So much so, that “Twenty-four boys, of which I was one, formed a company to march down and ravage Mexico; but news of Houston’s defeat and capture of Santa Anna at San Jacinto came in time to save that ill-fated republic from the impending invasion.” “We were simple people who believe in God, and loved heroes who won battles in accordance with our prayers; and from that time General Sam Houston was set in our hearts alongside Jackson and Washington.” Nor did Senator Houston disappoint his admirer. Although his experience with Whig and Free Soil Party politicians “had rather chilled my expectations as to all sorts of heroes,” Houston proved “a magnificent barbarian, somewhat tempered by civilization.” True, his “wild life” had “unfitted him for civilization,” so that he “was not a man to shine in a deliberative assembly,” but Dyer found him “a sincere lover of his country,” “indomitably patriotic,” standing “firm by the Union to the day of his death” in 1863.

An anti-slavery Union man himself, Dyer first found Calhoun “to be a perfect image and embodiment of the devil,” with an inner complexion of a dark soul shining through the skin of his face.” But upon Calhoun speak, he reconsidered. In debate, Calhoun maintained “his dignified demeanor and exquisite courtesy to the end” under the slashing attacks of Senator Benton, the unbending foe of the Calhounite principle of states’ rights and even secession in the defense of slaveholding. As was his wont, Calhoun took the time to explain his political principles to the earnest young Yankee; prudent attentiveness to the young was not monopoly of Mr. Weed. Dyer faithfully recalls Calhoun’s argument, which hinged on his claim that each state within the United States is “a sovereign state,” inalienably so, with natural rights placed “in the hearts and minds of individual freemen.” Dyer does not call the reader’s attention to the distinction between “freemen” and the Declaration’s “all men,” as Senator Calhoun surely did not. “As I became better acquainted with Calhoun, I liked him better. At last, I had a genuine affection for him, and mourned over what seemed to me to have been his political decadence; and I have mourned over it to this hour.” Dyer learned from Calhoun—who had forgiven his bitter rival, Jackson—“to distinguish between a man’s principles and his personal character, and there developed in me a disposition to extend to the convictions and conduct of others the same forbearance and charity which every man likes to have accorded to his own conduct and convictions.” But this does not cause him to omit quoting a speech Calhoun had made years earlier, in which he averred that although “many in the South once believed that [slavery] was a moral and political evil,” “we [now] see it in its true light, and regard it as the most safe and stable basis for free institutions in the world.” The regime issue had been joined, with men of outstanding character and ability on both sides.

In Thomas Hart Benton of Missouri, Calhoun had “a bitter and relentless foe,” as well as a formidable one. “It would be difficult to find two other contemporary Americans, of equal distinction, so absolutely contrasted in body, mind, principles, tastes and manners as were Benton and Calhoun.” “To rub Calhoun’s nature”—physically slender, theorizing, gentlemanly—“against Benton’s”—physically massive, practical, tough to the point of ruthlessness—“was like rubbing the tender skin of an infant against the corrugated hide of a rhinocerous.” Indeed, this “Roman gladiator who somehow had become embedded in the nineteenth century,” this “robust and ferocious Christian,” had a servant scrape his body daily with “the roughest kind of horsehair brush,” callousing his skin and toughening his mind for political combat. (“The Roman gladiators did it, sir”—the word “sir being a formidable missile on his tongue.” Benton’s “egoism was so vast, so towering, so part and parcel of the man, that it was not at all offensive and never excited disgust,” being “as proper to him as its apex is to a pyramid.” The “old ironclad” loved the things that were his own: his country (hence his hatred of Calhoun, who wouldn’t have minded breaking it up) and his family above all. Her mind broken by a stroke, Mrs. Benton once appeared unexpectedly at a reception held in their home for a French prince; Benton took her by the hand, seated her beside him, and carried on the conversation “with that impressive dignity in which it is doubtful if he had an equal.” When asked if he would obey protocol and kneel before the Czar, he stood on his republican dignity: “No sir! No sir! An American kneels only to God and woman, sir.” Unlike Calhoun, “he was a staunch friend of the poor—of poor blacks, as well as poor whites,” and when in the Tennessee legislature he introduced a bill providing jury trials for slaves.

The aristocratic Calhoun and the democratic warrior Benton found their complement in Henry Clay, a man of “good nature” and “inborn democratic republicanism.” With his photographic memory for persons, names, and places, Clay made any stranger—“however humble in station”—feel “at once at home with the affable and cordial Kentuckian.” In floor debate, Calhoun drew his listeners to him with his high-mindedness; Benton drew them into an ego so capaciously American as to make them want to join with it. Clay “spoke to an audience very much as an ardent lover speaks to his sweetheart when pleading for her hand.” As Clay’s recorder, Dyer saw that “the more successful a lover’s speech is on such an occasion, the less readable it is when it gets into cold print,” but Clay carried his fellow senators along with “his hearty and sympathetic spirit of fellowship”—the sort that, he hoped, might pervade his beloved Union. Clay loved commerce, industry, and hard work not out of love of profit but love of country. “Clay was poor—poor notwithstanding his thirty-five years of public service; for he was not one of those statesmen who, on a five-thousand-dollar salary, manage to lay up two hundred fifty thousand dollars per annum.”

If his peers were remarkable for their character, Daniel Webster outshone them in intellect. “Webster was somewhat lacking in character”; having won a point in principle, “he would lapse into indifference and suffer the fruits of his victory to be snatched from him by men of inferior intellect.” But in intellect he had no equal among the public men of that day—not even Calhoun. “The perfection of common sense,” his mind in debate kept together the details of the bill he argued for or against; the rules of the Senate; the character of each senator he engaged; the fundamental principles of the Union. “If it had not been for Webster, Calhoun would have carried everything before him.” In his published speeches in defense of natural-rights republicanism “he taught the country what the true nature of its government is,” out of the teachings of the Founders. “He logically, powerfully, clearly and popularly demonstrated the baneful character of the disunion and secession heresy,” and in so doing set in motion the resolve of those people who finally preserved it.

Dyer among them. After his year in the Senate he studied and practiced law, in Washington, but soon moved to journalism in New York, where he wrote for and edited several major newspapers. Having learned politics, low and high, before he began to write about them, he campaigned courageously against the city’s underworld, siding with embattled religious and civic reformers. In 1852 he promoted the career of Sarah Willis, who became the first regularly-featured woman newspaper columnist in America after Dyer hired the divorced mother of two boys, doubling her previous salary. Like his heroes of ’48, he wasn’t afraid to take risks for the right as he saw it. And like his old benefactor, Mr. Weed, he’d pull a string or two for a young talent.

By 1889, when Dyer published his reminiscences, the Civil War had been won but the political reconstruction of the Southern states along republican lines had in many respects failed. Now allied with poor whites against the freedmen, the oligarchs had recovered much of their power. Northerners had decided to move on, hoping for a gradual amelioration of race relations. Dyer concludes with a benediction for all the great senators “of forty years ago,” including Calhoun, despite “his unfortunate political aberration.” Dyer couldn’t know, and would not live to see the new political aberrations of the century to come, at home and abroad. We who have seen them will also see why Congress again finds itself sharply factionalized: Congress members and many voters sense that the regime issue once more is at stake, as it was in the decades leading to the Civil War. Because Progressivism altered the structure and therefore the character of American government and education, we no longer have senators capable of stating the principles beneath today’s conflict. This leaves it for citizens themselves to recover the meaning of the American Constitution as understood by its framers.

Will Morrisey is William and Patricia LaMothe Professor Emeritus of Politics at Hillsdale College, and is a Constituting America Fellow; his books include Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government.

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“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 of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” –First Amendment to the United States Constitution

Fake news? Real news? Newswriting has no end. What matters most among abundant sources of information, however, is an ability to maintain freedom of speech including that of the press. Certainly, without integrity in journalism news is not news and only amounts to opinion. Yet, above that, the United States Constitution includes the law that Congress is not allowed to abridge (prevent, suppress, gag) the press. To do so invites tyranny.

Known as the Fourth Estate, an independent institution that keeps an eye on government, Edmund Burke, a British statesman, is said to have observed the vital role of the press in effective, accountable, representative governing:

“there were Three Estates in Parliament; but, in the Reporters’ Gallery yonder, there sat a Fourth Estate more important far than they all.”

For reasons such as Burke noted, much effort is invested in preserving freedom of speech and of the press as the Founders intended in the United States Constitution. So the American people may observe laws being made and participate in the legislative process, Congress and the press use opportunities availed by latest innovations such as modern technology to help connect Americans to the workings which make up that process.

However, even with best efforts to report on events from local to worldwide, it is no small task to ensure stories are accurate especially in today’s 24-hour news cycle. Human beings, imperfect and owning personal beliefs, provide no lack of doubt to go around regarding trustworthiness of all who write and disseminate “the news.”

This fact is part of what makes the business of journalism difficult, drawing ire on both sides of the political aisle. The work of media production is a business full of competition for readers, viewers, and ratings. It is also important. The press was important enough an institution to get placed specifically in the United States Constitution. Included in the Constitution – the law of the land – a free press matters within the system of checks and balances between the legislative, executive, and judicial branches of American government.

As if it were not challenging enough to serve in elected office, Members of Congress must continually pay attention to what they say and how they say it in public, or in whatever form arises that could put them “on the air.” They learn how easy it is to feel that one’s words were taken out of context. It is definitely easy to misunderstand the words of others in normal day-to-day communications, and elected leaders especially must be sure to understand their own views in order to convey what they mean clearly when news can move quickly throughout a day. This means Members of Congress must pay attention so they are not quoted in a way they deem unfavorable or untruthful about their stance on issues, or is unfair coverage.

The press plays an important role in making sure news is accurately covered, timely, and what is generally considered newsworthy. Members of Congress, on the other hand, must handle the moving of bills through the legislative process while keeping constituents informed on what is happening. It is challenging to see reports on legislation moving through the process that receive negative coverage for which Members must stop to do damage control. A reason is often within the very process – legislation not yet completely through a step. When news pieces go out that say what a bill does or does not do, and a controversial question arises as a result of the news, reactions to the bill may bring on a firestorm Members believe they must stop work in order to address and “put out fires.”

It is not necessarily bad that this happens as it is an example of the required checks on government the press affords. At the same time, integrity of the press, and trust that journalists are doing their homework by asking questions that offer the best, balanced coverage is a must.

Journalists must make every effort to report the truth about where a bill is in the process, whether amendments are currently being offered, and so on to accurately show what is occurring.

Gaining an appreciation for how Congress and the press work helps shed light on the important role of each. Managing how the press and Congress operate so both function as designed takes an understanding of each other, by each other, and by the American people who consume the news and participate in the legislative process.

Amanda Hughes serves as Outreach Director, and 90 Day Study Director, for Constituting America. She is the author of Who Wants to Be Free? Make Sure You Do!, and a story contributor for the anthologies Loving Moments(2017), and Moments with Billy Graham(forthcoming).

Sources:

United States House of Representatives – Media Resources
https://www.house.gov/media

United States Senate – Media Galleries
https://www.senate.gov/galleries/

The Dirksen Center Resources – “Reporting on Congress: The Role of the Media”
http://www.dirksencenter.org/print_expert_media2.htm

History, Art & Archives – United States House of Representatives Multimedia, “Tradition in the House Press Gallery”
http://history.house.gov/Oral-History/People/OHPeople-Media/West-Tradition-in-the-House-Press-Gallery/

The National Press Club
https://www.press.org/

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There are three ways Congress lives up to its mandate from the Founding Fathers – documenting their actions, recording their votes, and communicating with their constituents.  Each method has changed as technology evolved.  Each technological advance has expanded the availability of official records, and opened more avenues for communication and accountability.

America’s Founding Fathers understood the importance of communication and accountability between citizens and their elected representatives.

Even before the U.S. Constitution, the Continental Congress approved provisions for communicating with citizens, and assuring citizen accountability through knowledge of the actions of their elected representatives.

Articles of Confederation

…and shall publish the Journal of their proceedings monthly, except such parts thereof relating to treaties, alliances or military operations, as in their judgment require secrecy; and the yeas and nays of the delegates of each state on any question shall be entered on the Journal, when it is desired by any delegate; and the delegates of a state, or any of them, at his or their request shall be furnished with a transcript of the said Journal, except such parts as are above excepted, to lay before the legislatures of the several states.

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

The U.S. Constitution mandates open communication and documentation.

Article 1, Section 5, Clause 3

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

During its ratification, the importance of citizens interacting with their elected representatives was institutionalized in the Bill of Rights.

Amendment 1

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.

Alexander Hamilton and James Madison made communication between citizens and their elected representatives fundamental to the integrity of representative Democracy.

Federalist No. 56

February 19, 1788

It is a sound and important principle that the representative ought to be acquainted with the interests and circumstances of his constituents.

Every day the Congress approves the “Journal” of the previous session. This is the official outline of actions taken during the previous meeting of each Chamber, like a set of minutes. It is codified in Section 49 of Thomas Jefferson’s 1812 Parliamentary Manual that governs Congressional operations.

Staff of the House Clerk’s Office, and the Secretary of the Senate physically write, and now type, every word said during Congressional sessions.  These are transcribed and printed in the Congressional Record.  Printed daily editions of the Congressional Record were distributed to Legislative Offices. A very limited number of copies were also available through those offices to the public.

This changed in January 1995, when the Library of Congress made digital copies of the Congressional Record available on its website. Continuous improvements now allow for user friendly search of the Record and all legislation, by anyone on the web, anytime, anywhere.

The Congressional Record remains the official transcript of proceedings.  Since March 19, 1979 in the House and June 2, 1986 in the Senate, the Cable-Satellite Public Affairs Network (C-SPAN), a nonprofit private entity, provides live coverage of each Chamber. The cameras are owned and maintained by the Architect of the Capitol, while their operations and broadcasts are operated by staffs of the Chief Administrative Officer in the House and the Secretary of the Senate. C-SPAN receives the signal and airs it on its various cable television channels.

Live television fundamentally expanded the Congressional audience. Instead of the small public viewing galleries, anyone can now watch what happens instead of reading about it.  Archived videos of each session can be accessed 24-7 on C-SPAN’s website.

Starting in 2007, every public hearing in the House is broadcast live, and archived as podcasts on each Committee’s website.  The Senate only provides the traditional list of witnesses and publishes opening statements.

For over 184 years Congress used voice voting.  The process of calling each Member’s name remains the Senate’s format.  The House started using an electronic voting system on January 23, 1973.  This reduced voting time from 45 minutes or more to 15 minutes.  Clustering votes on noncontroversial bills, under “Suspension of the Rules”, can reduce vote times to five minutes.  This saves as much as 400 hours a year in vote and “quorum call” time and provides immediate documentation of how each Member votes.

Every day, citizens learn about the actions of the Legislative Branch through a free and vibrant news media and through direct communication with their elected representatives. Credentialing and supporting journalists covering Congress began in 1838.  Today, the media galleries, operated by the House CAO and Secretary of the Senate, but managed by the media themselves, credentials over 6,000 correspondents from around the world.

Up until 1995, Members responded to their constituents’ requests and comments using paper, just like public officials had done for centuries.  Handwriting gave way to typewriters, which evolved into word processors.

That all changed in 1995.  Dramatic operational savings, achieved from strategic reforms in the House, gave Speaker Newt Gingrich the ability to invest in the CyberCongress.  Former executives from IBM and other technology companies were recruited by the Chief Administrative Officer.  They designed and implemented the most dramatic technology revolution in Congressional history.  This giant leap took House communications from the 18th Century into the 21st in one giant leap.

The epic leap changed the layout of Capitol Hill and the culture of Congress forever.

  • Five miles of fiber optics and thirty miles of T-1 lines, with all servers and switches installed through the Capitol Building and all five House office buildings and annexes.
  • A Pentium computer in each Member, committee, and leadership office. This allowed for paperless transactions from “Dear Colleague” letters, to Whip operations, to financial record keeping, purchasing, and work orders.
  • Uniform service contracts, equipment, training, and support to immediately make the entire system immediately operational.
  • Moving all operational documents and databases onto a compatible digital database.
  • A distributed architecture of secure servers, with sufficient firewalls to allow for Internet access, LAN, and intranet operations even to district offices, without fear of hacking or other security breaches.
  • A unified email system.
  • Enough server power and memory to support a 310 percent increase in electronic-based communications in the House in the first year, and doubling each year for ten years.
  • A decision support center allowing for virtual caucuses, virtual committee meetings, and strategic planning meetings accessing distant users.
  • Placing all Member support services online. This included all financial data, human resource data, and personal property inventory data being available electronically. It also allowed for desktop procurement and other forms of electronic commerce.

The CyberCongress took only ten months to be fully operational and came in under budget.

Today, Members and their staffs handle all constituent communication and case work over the web.  Members have also become very savvy regarding social media.  Facebook, Twitter, Instagram, and countless Apps, generate virtual and real engagement on a vast scale.  Survey Monkey, Periscope, and other videos Apps, have reinvented the concept of town meetings.

Early on, some Members were terrified of Congress embracing the Information Age.  “I don’t want to be talking to my constituents all the time, I want to get real work done” groused one senior Member.

Thankfully, even the doubters have now realized that representative democracy must move with the times.

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

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“..and to petition the Government for a redress of grievances.” –First Amendment to the United States Constitution

Some get caught up in illegal activity. Others are honest in their attempts to represent client concerns. Who are they? Lobbyists. Political lobbying has existed as long as voters and elected leaders have. The meaning of “lobby” is the only newer thing about it. The term lobbying was found in newspapers in 1820, lobbyism in 1824, and lobbyist in 1846 as the first uses of lobby in print. Around 1810, political use of lobby was known in the northeast legislatures. Some speak of Ulysses S. Grant having coined the term in the 1860s when people would wait for him in the Willard Hotel lobby to talk, or as possibly beginning outside of British Houses of Parliament.

Yet, lobby comes from an earlier usage of the German word “louba” meaning hall or roof. In the 18th century, people would come to British theaters and became known as lobby loungers. They would come not to watch a play, but gather outside of box seat areas to visit with prominent people. Such occurrences became known in America as well.

A more commonly heard use of lobbying connected to political use relates to people congregating outside of the House Chamber waiting to catch a lawmaker’s attention and was known as such since the beginning of the United States Congress. Spectators, vendors, and ambassadors would fill the area which created noise for the Chamber where acoustics and ventilation were already poor.

At the time, there were no offices or other areas for constituents to meet with their Representatives, making the lobby area a best place for visits. It became the Old Hall where the House of Representatives met, and is now Statuary Hall in the United States Capitol, before the 1857 opening of the new House Chamber which included an area that was called the Speaker’s Lobby. There, people would wait to see the Speaker who officed behind the Speaker’s chair, and representatives would talk, relax yet maintain an ability to keep up with proceedings on the Floor, and meet with constituents and people who were gaining notice as professional lobbyists. The area became a popular place to meet until 1908 when the first offices opened for Representatives to meet with visitors. The new House Chamber could now accommodate Representatives for a growing America adding more and more states to the Union.

To “lobby” has been termed from various sources as one who comes to visit, to connect with others. Politically, to lobby is to seek the ear of an elected official to influence votes on legislation. This description makes any constituent who writes, visits, or calls his or her congressman, a “lobbyist.” And as guaranteed by the First Amendment to the United States Constitution, any American citizen may petition the government without fear of punishment or retaliation. What is it, then, that makes people cringe at the word, lobbyist?

Unfortunately, it has been all too easy for businesses and organizations to hire professional lobbyists who could work around legal ways to influence lawmakers. These lobbyists could essentially bring laws to pass with great impact and fund candidates running for office. This is why people who meet requirements for being lobbyists are required to register as lobbyists based on the amount of time they spend representing clients in front of lawmakers. Under the Lobbying Disclosure Act, they are required to report what they do and money they spend on their efforts. Many bring gifts to legislators and they are required to report what they spend on those gifts which is a limited amount by law.

This does not mean that all lobbyists are dishonest or lobbying is bad. Lobbying can be a helpful tool to reach legislative goals that individuals want to reach as groups. Each individual voter wants to be heard. This includes voters who are part of organizations and businesses. Such voters may be part of groups with similar interests and can bring a large voice to bear on Members of Congress.

This is also why it is important for each individual voter, whether part of an organization or business that lobbies or not, to remain engaged in the political process, America’s Founders set in place, in some way and especially at the ballot box.

“If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be. If we are to guard against ignorance and remain free, it is the responsibility of every American to be informed.” –Thomas Jefferson

It can seem that the Legislative Branch of American government is at such a large-scale that individual involvement is of little or no consequence. Yet, Members of Congress want to hear from constituents and they will tell constituents that letters, visits and phone calls do make a difference. Representatives who run to serve in elected, public office are people who vote too. They had to spend time listening to individuals with concerns and who encouraged them to run for office.

Representatives wish to follow through with promises made and the reasons they felt compelled to run for an elected seat. However, accountability is continually needed on all fronts – by those elected and those who voted them in. As long as America has representative government with no king, it means “We the People” people are in charge. It is important to remember that each American citizen holds the greatest opportunity to influence and voice concerns to leaders elected not to obtain power, but to serve.

Amanda Hughes serves as Outreach Director, and 90 Day Study Director, for Constituting America. She is the author of Who Wants to Be Free? Make Sure You Do!, and a story contributor for the anthologies Loving Moments(2017), and Moments with Billy Graham(forthcoming).

Sources:

History, Art & Archives – Lobbying in the Lobby
http://history.house.gov/Blog/2015/January/01-21-Lobby/

History, Art & Archives – The opening of the current House Chamber
http://history.house.gov/Historical-Highlights/1851-1900/The-opening-of-the-current-House-Chamber/

The National Museum of American History – Lobbying
http://americanhistory.si.edu/democracy-exhibition/beyond-ballot/lobbying

United States House of Representatives Office of the Clerk – Lobbying Disclosure
https://lobbyingdisclosure.house.gov/

Thomas Jefferson – Monticello
https://www.monticello.org/site/jefferson/if-we-are-guard-against-ignorance-spurious-quotation

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As the two previous essays have explained, we are increasingly governed not by our elected officials in Congress, but rather by an administrative state which makes most of the national government’s policies.  How has this affected the way Congress functions, and how it represents the people?  The administrative state has fundamentally changed the way Congress works, and this change has taken place over two distinct eras.

Throughout most of the twentieth century, while the administrative state was being constructed and expanded, Congress decentralized its power to committees.  These committees specialized in the subjects that the bureaucracy was created to regulate: agricultural production, workplace safety, consumer product safety, aviation policy, financial regulation, environmental protection, and so forth.  By decentralizing its own power into these specialized committees, Congress created a system that enabled it to supervise and oversee the work of the administrative state.

Congress was able to remain in control of the administrative state, in spite of the fact that the bureaucracy was ostensibly controlled and supervised by the executive branch.  Congress remained in charge due to two powers: the power to empower agencies by authorizing them to make policy, and the power to appropriate money to agencies.  Agencies needed Congress to give them power and funding.  This meant that when members of Congress – typically those on the relevant committee – demanded agencies to make certain decisions, the bureaucrats were happy to oblige.

Congress’s structure, throughout the twentieth century, in other words, was perfectly designed to supervise the administrative state it created.  But it was no longer representing the people in the making of law.  Instead, individual members had power, due to their committee assignments, to please their own constituents rather than deliberating with their colleagues on the bills that would promote the good of the country.

During this period, both parties in Congress largely supported the increasing role of the administrative state in making policy.  Members of Congress, regardless of their party affiliation, enjoyed the benefits that they derived from the administrative state.  Political ideology mattered a lot less than whether a member could bring home benefits to his or her constituents, and members were happy to play this role regardless of their partisan affiliation.  Congress could pass vague bills that promised to accomplish huge goals such as cleaning the air and improving automobile safety, but the costs would be imposed by the agencies that implemented the regulations necessary to attain those goals.

This is surely one reason why, throughout the twentieth century, the nation witnessed a steady increase in reelection rates to Congress, the rise of career members of Congress, and a decrease in voters’ sense that the government reflects their wishes.

Things have changed in important ways since the last century, however.  Instead of both parties in Congress agreeing on the legitimacy of the administrative state, and using it to promote the narrow interests of their constituents, one party has begun to question the legitimacy of the modern administrative state completely.  As the Republican Party became more consistently conservative, culminating in the 1994 and 2010 midterm elections, partisan politics has reemerged in Congress.  Newt Gingrich, the Speaker of the House after 1994, took some powers away from committees and centralized some power in the Speaker’s hands, allowing the party leaders in Congress to bring partisan politics, and the fight over the size of the national government, back into Congress.

In this second phase of the relationship between Congress and the administrative state, Congress is no longer content to oversee the exercise of administrative power.  Instead, one party in Congress seeks to constrain this administrative state, while the other defends it.  This has made Congress more polarized and more gridlocked, but it has also caused Congress to become weaker.  Congress was still an “impetuous vortex” in the twentieth century, just as James Madison had predicted it would be.  It ostensibly delegated power to the bureaucracy, but it controlled the bureaucracy behind the scenes.  Today, on the other hand, Congress has become so deeply divided that its members no longer act institutionally, defending and expanding congressional control of the administrative state.  Instead, they fight over the legitimacy of the modern state itself.

Paradoxically, the administrative state did not gain its powers at the expense of Congress.  Rather, Congress gained the most when it delegated lawmaking power to the bureaucracy, because members could claim credit for fixing problems but avoid the responsibility for the modern state’s costs.  As Congress has become increasingly polarized and gridlocked, it neither oversees the administrative state systematically, nor has it regained the original responsibility for making laws that our Constitution’s Founders envisioned it should have.  It is increasingly relegated to the periphery of American politics, eclipsed by the President, by the Supreme Court, and the bureaucracy.  Far from the republic’s crown jewel, Congress sadly has become the country’s most despised political institution.  It no longer resembles the representative, lawmaking body that the Founders intended it to be.

Joseph Postell is Associate Professor of Political Science at the University of Colorado-Colorado Springs.  He is the author of Bureaucracy in America: The Administrative State’s Challenge to Constitutional Government.  He is also the editor of Rediscovering Political Economy and Toward an American Conservatism: Constitutional Conservatism during the Progressive Era.  Follow him on Twitter @JoePostell.

 

Samuel Postell is a Ph.D. student at the University of Dallas.

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The progressive administrative state now seems entrenched in contemporary American political governance.  While progressivism first arose on the political scene in the late nineteenth century, and the administrative state came into being with the sudden increase in centralized government during the 1930s, the two came together only later in the twentieth century to form what is now known as the progressive administrative state.

The term administrative state refers to the reach and power of the vast web of administrative agencies that populate the executive branch of the U.S. government.  Administrative agencies, directed by the executive branch and run by unelected bureaucrats, possess the power to issue legally binding rules and adjudicatory orders.  The heads of agencies may be appointed by the President, and through these heads the agency may be influenced by the President or by Congress, but otherwise the agencies have no elected officials and sometimes little political accountability.  The rules issued by the wide array of federal executive agencies far outnumber the laws democratically enacted by Congress.

The term progressive refers to a political philosophy that favors an ever larger federal government that will assume ever more authority over social and individual life.  Progressives believe that modern life is so complex that it necessitates a pervasive central government run by elites who can direct society with enlightened expertise.  Progressivism mistrusts traditional cultural values and non-governmental social institutions, such as religion and local communities and civic voluntary organization, and believes that the private sector is the source of injustice.  Thus, a strong central government is needed as an antidote or override to those other institutions.

Since the 1960s, progressivism has also referred to a set of substantive ideological beliefs characterizing a leftist political agenda.  Thus, the progressive administrative state has used the power of big government to push progressive political goals.

The progressive administrative state has its historical roots in the New Deal agenda of the 1930s.  Progressives believed that only an unrestrained federal executive branch could remedy all the effects of the Great Depression, as well as engineer society so that such a calamity would never again occur.  The progressive mindset saw limited government, the private-sector economy, and the complex web of social and cultural institutions that characterized America since its colonial beginnings as means of oppression.  To progressives, individual liberty gave way to the power of big government to engineer society for individuals who do not have the expertise to adequately govern themselves.  Government freedom trumped the freedom of the individual.

The New Deal agenda, powered by progressive ideas, brought about a dramatic expansion of the federal government.  This expansion occurred through an increase in the size and reach of the administrative state, accompanied by the birth of many new federal agencies.  But underlying all this expansion was Congress, since only through congressional laws creating, empowering and funding administrative agencies could such an expansion occur.  In rulings that have endured to the present, the New Deal era Supreme Court held that Congress could delegate unlimited power to the administrative state.

Following the New Deal, the administrative state witnessed another significant expansion during the 1960s and 1970s, with the Great Society programs being administered by new and enlarged agencies.  During one of the most liberal periods in American political history, Congress enabled the federal executive branch, through its administrative agencies, to pursue a progressive agenda that steadily enlarged the sphere of the national government, while shrinking the social space left to all other non-governmental institutions.  A somewhat similar expansion occurred decades later, during the presidency of Barack Obama.

Although Congress plays an essential role in fueling the administrative state, primarily through its funding of the executive branch, for the most part the personnel and operations of the progressive administrative state have remained insulated from Congressional oversight.  This is shown by the fact that even when Congress is controlled by a party populated by members who advocate a less expansive, more accountable federal bureaucracy, Congress has been unable to decrease the size or reach of the administrative state.  The administrative state has become so intertwined in national life, so involved in so many aspects of social life, that any attempted cutback runs the risk of shutting down the government altogether.

Various scandals and controversies in recent years have shown how politically-biased the progressive administrative state has become.  The Internal Revenue Service, for instance, used its vast power to target conservative organizations that might be opposed to the progressive administrative state.  The Consumer Financial Protection Board’s acting head refused to recognize or yield to the agency head appointed by President Trump.  The Veterans Administration actively covered up its failures to provide timely and adequate care to veterans, all the while doling out large pay increases to agency officials.

The progressive administrative state has undermined vital non-governmental social and cultural institutions.  The Great Society programs of the 1960s and 1970s, for instance, eroded the family and neighborhood.  Federal land and environmental agencies have eroded the power of local government.  And more recently, the agencies implementing the Affordable Care Act directly attacked religion by forcing religious organizations to act against long-held beliefs.  But as all these different aspects of society are undermined, the progressive administrative state grows ever more powerful and becomes the only institution on which individuals can rely for support.

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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No one would argue that in the last hundred years or so, legislation on all sorts of matters by Congress has increased tremendously.  The question for this essay is why?  The answer has to do with an ideological change in American political thought and the practical outworkings of it in Congress and the agencies created by Congress and controlled by the president.  The ideological shift was to Progressivism or modern liberalism.  The practical outworking is the so-named “administrative state,” otherwise known as bureaucracy, or rather large bureaucratic organizations designed to implement legislation.  First however, definitions are in order.

The term “administrative state” refers, in the words of one scholar, to “our contemporary situation, in which the authority to make public policy is unlimited, centralized, and delegated to unelected bureaucrats.”[1]  It encompasses three related elements: (1) the propensity of Congress and agencies to promulgate much more frequent legislation and to issue expansive regulations respectively; (2) the idea that bureaucratic agencies ought to be populated by experts who are unbiased and public-minded; and (3) the massive growth of the size and power of those agencies since the New Deal era.

Progressivism is generally a uniquely American ideological term that is more or less equivalent to modern liberalism and similar to the European social democracy.[2]  It is associated with the period from roughly 1880 to 1925 and is defined as “a total rejection in theory, and a partial rejection in practice, of the principles and policies on which America had been founded and on the basis of which the Civil War had been fought and won only a few years earlier.”  Another definition: “Progressivism was the reform movement that ran from the late 19th century through the first decades of the 20th century, during which leading intellectuals and social reformers in the United States sought to address the economic, political, and cultural questions that had arisen in the context of the rapid changes brought with the Industrial Revolution and the growth of modern capitalism in America. The Progressives believed that these changes marked the end of the old order and required the creation of a new order appropriate for the new industrial age.”[3]

Progressivism was more or less equivalent to modern liberalism, the term used in Europe, particularly the United Kingdom in the 1880s and onward.  In addition, it was inspired to an extent by socialism in certain of its aspects. The Industrial Revolution seems to have been the main force in the origin of the movement, but the other side of that same coin was a skepticism of capitalism.  It is easy to see how Progressivism would challenge the constitutional principles of the American Constitution.

But the other element of the movement included a new-found appreciation for big government, and, particularly governmental services provided through a centralized bureaucratic organizational form employing experts who were considered both efficient and non-political.  This public administration aspect was especially advocated by Woodrow Wilson.  Wilson argued first that “Government does now whatever experience permits or the times demand.”[4]  The best means or state action was the most efficient and the most efficient was a bureaucratic and centralized government that could then bypass the inefficiencies of the separation of powers and a deliberative Congress.  The single chief executive then was the ideal for Wilson.[5]  At the same time, administration was separated from politics in the Progressive vision.[6]  This “administrative state” is described: “[T]o varying degrees, the fathers of progressive liberalism envisioned a delegation of rulemaking, or regulatory, power from congressional lawmakers to an enlarged national administrative apparatus, which would be much more capable of managing the intricacies of a modern, complex economy because of its expertise and its ability to specialize. And because of the complexities involved with regulating a modern economy, it would be much more efficient for a single agency, with its expertise, to be made responsible within its area of competence for setting specific policies, investigating violations of those policies, and adjudicating disputes.”[7]

The Progressive Era as a movement ended around 1925, but its ideas persisted and the ideology gained adherents both among academics and politicians and government officials.  As a body, Congress came to be more swayed by Progressive ideas once it was made up of a Democratic majority during the presidency of Franklin Roosevelt.  In fact, it attempted to pass much legislation that had a Progressive cast.  However until around 1937, the Supreme Court consistently struck down many Congressional efforts.  But after the court-packing scheme, the Court began to uphold legislation on a regular basis, and this expansion has never abated.  In the meantime, Congress itself moved increasingly toward increasing intervention in social and economic issues.  So while one may place some blame on the Court, an equal blame falls on Congress itself.  It has delegated power to non-elected and unaccountable agencies while at the same time passing incredibly lengthy and complex legislation, thus justifying (it argues) such delegation.  The Court has of course come to allow delegation as it has eviscerated the non-delegation doctrine, an outcome the fathers of Progressivism embraced.[8]  At present, Congress routinely passes very large pieces of legislation and simply delegates rule-making power to the agencies, as the Progressives envisioned.

In summary, the Progressive movement provided the intellectual stimulus for the expansion of the administrative state.  But Congress over time was increasingly willing to put into practice the ideas of that movement, both procedurally (by creating large, centralized and unaccountable agencies and delegating extensive power to them) and issuing the kind of legislation (in terms of its content) that can only be characterized as interventionist in markets and private activities.  One possible solution, apart from the courts, is the Article I Project, seeking to urge Congress to take back its law making power and eliminate or reduce delegation.  How well this movement fares is still an open question.

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).

[1]   Joseph Postell, “What is the Administrative State”? in From Administrative State to Constitutional Government, at Heritage Foundation website, https://www.heritage.org/political-process/report/administrative-state-constitutional-government#Part1, 2012, retrieved February 11, 2018.

[2]   On these other terms, see James Kloppenberg, Uncertain Victory: Social Democracy and Progressivism in European and American Thought, 1870-1920.  Oxford University Press, 1986.

[3]   William Schambra and Thomas G. West, “The Progressive Movement and the Transformation of American Politics,” The Heritage Foundation, at https://www.heritage.org/political-process/report/the-progressive-movement-and-the-transformation-american-politics, 2007, retrieved February 12, 2018.

[4]   The State.  Heath, 1889, p. 651.

[5]   See Ronald Pestritto, Woodrow Wilson and the Roots of Modern Liberalism.  Rowman and Littlefield, 2005 and Vincent Ostrom, The Intellectual Crisis of American Public Administration, Third edition.  University of Alabama, 2007.

[6]   See Vincent Ostrom, Ibid.

[7]   Ronald Pestritto, “The Birth of the Administrative State: Where It Came From and What It Means for Limited Government,” The Heritage Foundation, at https://www.heritage.org/political-process/report/the-birth-the-administrative-state-where-it-came-and-what-it-means-limited, retrieved February 12, 2018.

[8]   See Pestritto, Ibid., “[T]he fathers of progressive liberalism envisioned a delegation of rulemaking, or regulatory, power from congressional lawmakers to an enlarged national administrative apparatus, which would be much more capable of managing the intricacies of a modern, complex economy.” because of its expertise and its ability to specialize.

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Americans are deeply polarized in this country but often incorrectly attribute it to growing partisanship and the strength of political parties. In fact, the opposite is true. Some scholars have argued that the growing polarization in Congress and in politics more generally is a symptom of a declining two-party system and identification of Americans with one of the two major parties.

Political parties have experienced a long-term decline in our political system and society over the past forty or fifty years. During the middle of the twentieth century, political parties were strong and played an important role in representing broad swaths of the American population, the majority of whom registered and identified with one of the major parties even if they did not always agree with every position.

However, Americans have increasingly identified themselves as independents and not beholden to one party or the other.  The phrase that people use in conversation that they vote for the candidate rather than the party is revealing and indicative of a very important sea change in American politics. Moreover, primaries have replaced the proverbial smoke-filled rooms with party bosses who exercised a great deal of power. Special interests often control a great deal more money than do party organizations who are unable to control party members the way they did formerly that encouraged party loyalty.

Therefore, the lens through which we view politics today is really often clouded by liberal and conservative ideologies and our uncompromising allegiance to them rather than Republican and Democratic lenses. The unfortunate result for our political system is gridlock and an inability to compromise to accomplish reasonable laws and policies that are supported by most Americans rather than just one side. Perhaps even more unfortunate has been the inability of Americans to speak to each other constructively, if at all, about politics without name-calling, labeling, or abiding by a modicum of civility, particularly on social media.

The result of weak political parties for Congress and weak partisan leadership has been quite significant. Congress has become more decentralized as the power of the old committee chairs has been greatly weakened. Representatives are often beholden to their own districts or special interests and lobbyists more than their political party. How many people would seriously argue that Speakers of the House John Boehner or Paul Ryan could control the members of their own party? They were party leaders who struggled to contain the more ideologically-driven members of their party as much as they contended against the rival party within Congress and in the White House.

The ironic solution for gridlock in Congress and an inability to compromise for the common good may be the strengthening of political parties rather than decreasing their influence. However, with the rise of television, the internet, YouTube, and Twitter over the past fifty years and structural changes that challenged the organization and strength of parties (not to mention increasing distrust in party institutions), it does not seem that parties will recover and that our ideological polarization may continue and even increase.

Tony Williams is a Constituting America Fellow and a Senior Teaching Fellow at the Bill of Rights Institute. He is the author of six books including the newly-published Hamilton: An American Biography.

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U.S. Senate Rule XXII, which requires a three-fifths supermajority vote of the body (60 votes) to end debate on a measure, has been on President Donald Trump’s mind lately as some of his key legislation has hit a brick wall in the senate.[1]  The rule effectively empowers the minority political power because it takes a supermajority to pass legislation, and up until recently, to confirm a president’s nomination of a Supreme Court justice.  But the rule, which allows for a parliamentary procedure called a filibuster, has not always been on the books, and is not mentioned in the U.S. Constitution.

The Great Compromise of 1787 reached during the Constitution’s framing made the Senate the prime legislative body to represent the states,[2] thus the Constitution provides that each state has two senators, regardless of the state’s population.[3]  With this fact in mind, consider that any percentage of the Senate does not equate to a similar percentage of the nation’s population being represented.

The Constitution provides that the House and Senate “may determine the Rules of its Proceedings… .”[4]  The Constitution’s framers specified five instances in which the Senate must have a supermajority vote:  expelling members,[5] ratifying treaties,[6] convicting federal officials following impeachments,[7]overriding presidential vetoes,[8] and proposing constitutional amendments.[9]  Both James Madison and Alexander Hamilton argued against supermajority votes in The Federalist.[10]

While some have argued that the supermajority vote that the Senate rules require to end debate is unconstitutional,[11] it has remained in place in various forms since 1806.  However, the rule’s continued survival is more likely to be subject to political decisions within the U.S. Senate rather than the involvement of the U.S. Supreme Court in an internal Senate matter.[12]

Aaron Burr, who killed Alexander Hamilton in their famous duel, is credited with changing Rule XXII and empowering the political minority — that Hamilton feared — at the expense of the majority. In 1805, Burr, who by virtue of Article I, Section 3 of the Constitution, also served as President of the Senate, urged the Senate to simplify its rules to end the “Move the Previous Question” rule, arguing it was redundant to the original “question” or motion made, and in 1806, the Senate ended the rule.[13]  The change to Senate Rule XXII, which was apparently made to simplify the rules, allowed for a filibuster, which is the act of speaking continuously on a motion so that a vote cannot occur.  The word “filibuster” is a variation of the Spanish word for pirate, which is indicative of the parliamentary move that stops a vote from occurring.  But even though the rule change occurred in 1806, no senator threatened a filibuster until 1837, and it not used until 1841.[14]

In 1917, under pressure by President Woodrow Wilson who was seeking legislation to arm merchant ships and was being blocked by the Republican minority, the Senate added a rule to allow for the “cloture of debate,” meaning to end a filibuster.  Cloture is the French word for fence.  The amended Rule XXII required a two-thirds vote to end debate.[15] From 1917 until 1963, cloture was rare, and was invoked only five times to end debate.[16]  The Senate later amended the rule to lower the number from two-thirds of the senators present and voting to three-fifths of all of the senators, which increased ability to end debate, but which also maintained a supermajority requirement.  Senators’ use of filibusters significantly increased over time to the point that almost all major legislation must now garner 60 votes to pass.

Through the years, both parties used filibuster threats to stop presidential appointees. Republicans threatened, during the President George W. Bush administration, to use what some called the “nuclear option” to modify Senate rules to eliminate filibusters of presidential appointees.[17] They backed down after raucous protests from the Democrats, and after a group of moderate senators from both parties, who dubbed themselves the “Gang of 14” reached an agreement in 2005 to allow the votes on some of President Bush’s judicial nominees in exchange for a retreat on moving forward with doing away with the supermajority requirement.

The agreement was short lived, in that when the Democratic Party gained control of the Senate, the Democrats used the “nuclear option” to end the filibuster rule for all presidential nominations except Supreme Court justices.[18]  In the summer of 2016, when then-Senate Majority Leader Harry Reid (D-NV) assumed Senator Hillary Clinton (D-NY) would defeat Donald Trump in the November presidential election and that the Democrats would win control of the U.S. Senate, he said that the Democrats were prepared to eliminate the filibuster rule, saying “[i]t is going to happen.”.[19]   The Democrats lost the presidential election, and the Republicans maintained control of the Senate, and the supermajority cloture rule for legislation has remained intact, but was modified to a simple majority for Supreme Court justices.[20]

In January 2017, President Donald Trump nominated Judge Neil Gorsuch to fill the vacancy on the Supreme Court resulting from Justice Antonin Scalia’s death.[21]  When the Senate Democratic Party leadership announced they would filibuster Gorsuch’s nomination, the Republicans changed the cloture rule for U.S. Supreme Court nominees, requiring a simple majority of votes to confirm Gorsuch’s nomination.  The Senate confirmed Gorsuch with a 54-45 vote.  While Senator Harry Reid promised that the Democrats would end the supermajority cloture rule for Supreme Court justices and legislation, the Republicans ended the rule for Supreme Court justices.[22]

While filibusters are essentially dead as far as presidential nominees are concerned, they remain very much alive for votes on legislation.  Filibusters can be used as a shield to try to stop legislation that a senator dislikes, or a sword to spur action on some other measure.  For example, Senator John McCain (R-AZ) and senate democrats repeatedly filibustered to force a Republican senate to vote on campaign finance reform, and Senators Hillary Clinton (D-NY) and Patty Murray (D-WA) held up President George W. Bush’s executive branch nominations to successfully pressure President Bush’s Food and Drug Administration to allow so-called “Plan B” emergency contraceptives to be sold without a prescription.[23]

The U.S. Senate’s 2018 partisan split of 51 Republicans and 49 Democrats means that any Republican sponsored measure must receive at least 9 votes from the Democrats to pass, and even more votes, if some of the Republicans do not vote or do not support the measure.   Whenever any political party holds a majority, but less than the 60 vote majority, that party will have to seek votes from the other party.  In other words, 41 members of the Senate can stymie legislation.

President Trump’s repeated pleas to the Republican-led Senate to end the supermajority cloture rule that allows Democrats to filibuster his legislative proposals may eventually be heeded by the Senate Republicans.  With former Senate Democratic Leader Harry Reid’s promise that the Democrats would do the same thing if and when they regain control of the Senate, it is likely that one political party or the other will end the rule if that party’s control remains less than three-fifths of the Senate.

Frank M. Reilly teaches constitutional law, election law, and other political science courses at Texas Tech University. He is also a lawyer in private practice in Horseshoe Bay, Texas, and serves as a municipal judge for two Texas cities.  Follow him on Twitter @FrankReilly or on Facebook at JudgeFrankReilly.

[1] See e.g., President Donald Trump’s Twitter posts on June 30, 2018, June 21, 2018, July 29, 2017, and September 15, 2017. <https://twitter.com/realDonaldTrump>.

[2] The 17th Amendment, ratified by the states in 1913, changed the compromise by switching the means by which senators are chosen, from the original appointment by each state legislature to direct election by voters.

[3] U.S. Const., art. I, sec. 3.

[4] Art. 1, Sec. 5, U.S. Constitution.

[5] Id.

[6] Id., Sec. 2.

[7] Id., Sec. 3.

[8] Id., Sec. 7.

[9] Id., Art. 5.

[10] See Federalist 58 (““a minority can demand unreasonable things””) with James Madison writing, and Federalist 22 (“[i]f a pertinacious minority can control the opinion of a majority [the result will be]tedious delays; continual negotiation and intrigue; contemptible compromises of the public good”), with Alexander Hamilton writing.

[11] See e.g., Chafetz, Josh and Gerhardt, Michael J., “Is the Filibuster Constitutional?” (2010). Cornell Law Faculty Publications. <https://scholarship.law.cornell.edu/facpub/160>

[12] See NLRB v. Noel Canning, 573 U.S. ___, 134 S. Ct. 2550 (2014) (“for purposes of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business”); and Raines v. Byrd, 521 U.S. 811 (1997) (individual members of Congress do not have standing to sue unless they can prove a particular injury separate and apart from that of the legislative body). See also Page v. Shelby, 995 F. Supp. 23 (D.C. 1998) (holding voter lacked standing to challenge the constitutionality of Rule XXII).

[13] Binder, Sarah A., “The History of the Filibuster,” Brookings Institution, April 22, 2010.  <https://www.brookings.edu/testimonies/the-history-of-the-filibuster/>

[14] Id.

[15] Id.

[16] United States Senate, “Cloture Rule.” <https://www.senate.gov/artandhistory/history/minute/Cloture_Rule.htm>

[17] Carl Hulse, “Democrats Reject a Compromise on Judicial Nominees”. New York Times, May 11, 2005.  <https://www.nytimes.com/2005/05/11/politics/democrats-reject-a-compromise-on-judicial-nominees.html>

[18] 159 Congressional Record 167, S8418, November 21, 2013. <https://www.congress.gov/crec/2013/11/21/CREC-2013-11-21.pdf>

[19] Hulse, Carl, “A Democratic Senate Might Need to Curtail Filibuster, Harry Reid Says,”  New York Times, August 31, 2016. <https://www.nytimes.com/2016/09/01/us/politics/a-democratic-senate-might-need-to-curtail-filibuster-harry-reid-says.html>

[20]  United States Senate, “Memorandum of Understanding on Judicial Nominations,” September 15, 2005.  <https://www.gpo.gov/fdsys/pkg/CRPT-109srpt369/html/CRPT-109srpt369.htm>

[21] White House, “President Trump’s Nominee for the Supreme Court, Neil M. Gorsuch,” <https://www.whitehouse.gov/briefings-statements/president-trumps-nominee-supreme-court-neil-m-gorsuch/>

[22] Tau, Byron, “Senate Confirms Neil Gorsuch as Supreme Court Justice,” Wall Street Journal, April 7, 2017. <https://www.wsj.com/articles/senate-expected-to-confirm-neil-gorsuch-as-supreme-court-justice-1491557404>

[23] Clemmitt, Marcia, “Gridlock in Washington,” 20 CQ Researcher 17, pp. 385-408,  April 30, 2010.

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Every fourth of July American citizens recognize the signing of the Declaration of Independence and the revolution that gave birth to our country, but very few remember the revolution that occurred in Congress about one hundred years after the revolutionary war.  That revolution has had profound effects on how Congress works today.

This revolt occurred in 1910 and was a revolt against the Speaker of the House.  It featured Joseph Cannon, a powerful and formidable speaker who used his power to the hilt in order to ensure that the will of his party was carried out through the representative body of the nation. The revolt against the Speaker is not only a unique story in our nation’s history, but one that modified the orders of the House and the powers of its Speaker.

Prior to this revolt Speakers of the House had three important powers that allowed them to fulfill the will of their party. They had the power of committee appointment, the power of recognition, and they were the chair of the “rules committee.” These powers in tandem allowed the Speaker to dictate the bills that would reach the floor, recognize who would speak on the given bill, and also determine the rules that governed the deliberation upon the bills.  Speakers would typically use these powers on behalf of their party, to ensure that the majority party was able to pass the agenda that voters sent them to Congress to enact.

In 1910, however, the Republican Party, of which Cannon was the leader in the House, was divided between conservatives and progressives.  Cannon, a conservative, was consistently suppressing the influence of the progressives in his own party.  Progressive politicians, who deeply distrusted parties in general, began to resent the power vested in the Speaker which was being used to thwart them.  They believed that political parties rendered government corrupt and irresponsible; that the laws that actually governed the nation were not a product of the people, but rather of a select group of interested individuals who used their personal influence to control the government.

It was a progressive Republican, George Norris of Nebraska, who worked to weaken party power at the Congressional level. After serving in Congress for many years, the opportune time finally arose. On Saint Patrick’s Day, 1910, while many of the Republican representatives were out celebrating, Norris introduced a resolution to strip Speaker Cannon of his power over the Rules Committee, which had the power to send bills to the floor of the House for debate, vote, and passage.  He noticed that many of Cannon’s loyal partisans were out celebrating and thus unable to swing the vote in defense of their party leader.

There was a problem: Cannon had the power to determine whether Norris could introduce his resolution in the first place.  Norris claimed that his resolution was privileged by the Constitution and therefore had priority over all other business.  This would mean that even the Speaker could not prevent the House from proceeding with the resolution.  Cannon had to determine whether the Norris resolution was privileged, but he knew that the entire House would vote either to uphold or to overturn his ruling.  Stalling, he allowed members of the House to debate whether the resolution was privileged, and the debacle lasted the entire night.  Shortly after midnight the sergeant at arms was ordered to take absent members into custody and bring them back to the House to produce a quorum.

The debate, which began in the middle of the afternoon on March 17th, ended with no decision at 2 P.M. on March 18th. The following day Cannon ruled that the resolution was not privileged, and therefore could not be heard. Norris and his allies were prepared for this and they appealed to the entire House. Cannon was overruled in a vote of 182 to 163, and Norris’ resolutions passed by a margin of 191 to 156.

From that point on, the Speaker of the House would never again have the powers that enabled him to represent the will of his party and push his party’s agenda through the House of Representatives.  Committee chairs became “barons” of the House, no longer subject to the control of Speakers and the majorities they represented.  This committee chair-dominated system lasted for decades, until recently, when the Speaker regained some of his influence, including the power to appoint the members of the Rules Committee.  Still, even today, Speakers are much weaker than they were in Cannon’s day.  Back then, they were called “czars.”  Today, they have the ability to determine the agenda, but not the power to influence members of the House to vote for it.

Joseph Postell is Associate Professor of Political Science at the University of Colorado-Colorado Springs. During the 2017-18 academic year he is a visiting fellow in the B. Kenneth Simon Center for Principles and Politics at The Heritage Foundation. Postell is the author of Bureaucracy in America: The Administrative State’s Challenge to Constitutional Government.  He is also the editor of Rediscovering Political Economy and Toward an American Conservatism: Constitutional Conservatism during the Progressive Era.  Follow him on Twitter @JoePostell.

Samuel Postell is a Ph.D. student at the University of Dallas.

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Partisanship and Violence in Congress — Not All Partisanship Is Bad, but Some Partisanship Is Catastrophic

Washington is a city that has long been known for partisanship. Even as respected and honored as he was, George Washington was viciously and unjustly attacked by partisans.

Thomas Paine who helped build support for America’s independence by writing the historic political pamphlet “Common Sense,” accused Washington of corruption and wrote that “the world will be puzzled to decide whether you are an apostate or an impostor; whether you have abandoned good principles, or whether you ever had any.”[1]

Partisans for Thomas Jefferson and John Adams viciously attacked each other with such labels as: atheist, tyrant, coward, fool, hypocrite, and weakling. Jefferson’s allies accused Adams of having a “hideous hermaphroditical character, which has neither the force and firmness of a man, nor the gentleness and sensibility of a woman.”[2]  Adam’s partisans called Jefferson “a mean-spirited, low-lived fellow, the son of a half-breed Indian squaw, sired by a Virginia mulatto father.”[3]

Partisans are strong supporters of a political party or cause. There is nothing wrong with being a partisan as long as it is healthy partisanship and the cause is within the bounds of the Constitution. But Partisanship becomes unhealthy when support for the cause becomes disconnected from fact, reason, constitutional limits, or basic right and wrong.

In 1856, regional tensions between North and South were intensifying, and the U.S. Senate Chamber became a cage fight arena of sorts. On May 19, 1856, Senator Charles Sumner of Massachusetts, a deeply committed abolitionist, gave a fiery speech in which he lambasted his opponents and specifically attacked his colleague Senator Andrew P. Butler of South Carolina. That may have been uncivil. But three days after that speech, on May 22, 1856, Senator Sumner was on the Senate floor affixing the franking stamp to copies of his speech which he intended to mail to supporters. Unknown to Sumner, Senator Butler’s cousin, Congressman Preston Brooks, entered the Senate Chamber and clubbed Senator Sumner into unconsciousness with a cane. Witnesses said that Sumner never saw it coming and the beating was so severe, that it took him years to fully recover.

That is a classic example of toxic congressional partisanship. But it wasn’t uncharacteristic of the time. In the decade leading up to the Civil War, Congress was plagued by toxic partisanship. During that time, Members of Congress often carried firearms in the chambers, made death threats against each other, engaged in fistfights and even group brawls.

Sadly, unhealthy, corrosive partisanship is nothing new. But acknowledging that bitter hyper-partisanship has been around a long time, is not an attempt to justify or normalize it. Obviously, civility should be our standard. We can engage in robust debate. But threats and violence have no place in a constitutional republic.

In the last few decades, it seems that partisanship has grown more heated and occasionally even veers into toxic partisanship. We have seen more and more veiled threats and in some cases actual violence motivated by partisanship.

The mass shooting of GOP Members of Congress in June 2017 by an angry, and likely, mentally ill Democrat campaign volunteer on Senator Bernie Sanders’ presidential campaign is one of the most recent and most egregious examples of toxic partisanship gone way too far.

A more subtle version of hyper partisanship is now in vogue. Calling upon supporters to “confront” political opponents wherever they may be, is clearly an attempt to put them in fear for their safety — without actually crossing the red line of doing them physical harm. But it is nonetheless an attempt to threaten the opposition and bully them into submission. This cannot be tolerated in a free society.

When partisanship displays itself as robust disagreements and debates about important public policy and political issues that fall within the limited powers given to government, partisanship is not a bad thing. We need a robust debate. It isn’t necessary for everyone to agree on everything. But when partisanship becomes threats of violence or worse still, actual violence, it is a sign that something is deeply wrong.

The truth is politics is a surrogate for violence and war. In a less civilized society, those who can enforce their will upon the rest of the populace become the rulers. In establishing a constitutional republic, the Founders were attempting to set aside that age old “rule by force” model of government.  Instead, they created a system where the voice of the people ruled — without enforcing their will through threats and violence.

The Constitution was a compact that we would accept election results, and if we were unhappy with those results, we would redouble our efforts to win the next election. In that social compact, we agreed not to subvert the system and revert to the “rule by force” model of governance.

But an integral part of that compact was also designed to reduce the friction points, and maximize personal freedom in an ordered society.  Thus, we also agreed in that compact that certain issues were off the table — certain issues would not be subject to a vote and our individual rights could not be endangered by an overzealous majority.  For example, our Constitution gives the federal government a short and specific list of limited powers. So the majority wins on that short list of powers, but it doesn’t win on everything that it wants. Some things are beyond the government’s or the majority’s power.

Additionally, most of the Bill of Rights limits the power of the government and the majority. No matter how many Americans dislike your political opinions, you are free to speak and write them. No matter how small a minority your faith may be, you can freely exercise your religious beliefs. No matter what the majority or government may say, you have the right to own firearms to protect yourself and keep a check on government. No matter how unpopular you may be, you may not be denied due process or a fair trial.  No matter how much the government may want your property, it may not take it for public use without just compensation. These are only some of the limits on the power of government built into our constitutional system.

The majority’s power and the government’s power was limited on purpose — not by accident or oversight. Many things were simply off limits and not subject to a majority vote. By doing this, the Founders hoped to avoid the problems so often associated with democracies — that too often they became an exercise of three wolves out-voting two sheep about what is for dinner.

The Founders believed that a significantly limited government would reduce the surface area for political friction that could rub raw and blister our civil society. Simply stated, they did not want the majority to be able to impose its will on every conceivable issue.

As government has grown in the powers it asserts and the control it claims of its citizens’ rights, the chances for serious conflict dramatically increase. This is one of the many reasons, why we should cling to the Founders vision of a constitutional republic with limited powers. One of the dangers of an ever expanding government is that it leads to more friction points and more conflict as government imposes it will on an unwilling minority on an ever growing list of issues that were once off-limits for government.

As Americans, we should be civil and eschew threats and violence. We should argue for our beliefs with vigor, but we should not attempt to use the power of numbers to impose our will by force when the Constitution does not give us that power.

Every bit as important — Americans should respect the concept of limited constitutional powers. That means the majority is limited in what victories it can claim. Without limits on government, an over-zealous majority will eventually so trample the minority, that they will begin to feel that their only option is revolution. Those seeking to impose their will on the minority, should keep in mind that the social compact is designed to give the majority its way only on those matters that are properly within the government’s power. But it is also designed to protect the minority from an over-zealous majority that believes its views are correct and should be imposed on all.

On a practical level, if we are smart and responsible, we will support government that circumspectly exercises only those powers that it was actually given in the Constitution. This is one more way that the Founders hoped to avoid toxic and hyper-partisanship. Then with that foundation, we can freely discuss, debate, and argue actively for our views on what public policy should be. That would be healthy partisanship. We need more of that in Congress and in the populace.

George Landrith is the President of Frontiers of Freedom.

[1] https://www.mountvernon.org/library/digitalhistory/digital-encyclopedia/article/press-attacks/#note11

[2] http://thegarrisoncenter.org/archives/5122

[3] http://thegarrisoncenter.org/archives/5122

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Congressional Gridlock

Probably every resident of a large city has experienced gridlocked traffic. The traffic lights in front of you are green. Yet you can’t move because your path is blocked by cars stuck in the intersection because their path is blocked by a red light. By the time those cars have cleared the intersection, your light has turned red, so you sit there caught in gridlock.

Traffic gridlock is real and most of us have experienced, some of us regularly. The term gridlock has also been applied to Congress, and with increasing regularity over the past few decades. Some imaginative observers have even developed measures of gridlock. One measure with some intuitive plausibility is a ratio between the pieces of legislation enacted and the pieces that were introduced. Gridlock thus becomes synonymous with unfinished business or unenacted legislation.

When faced with gridlock, whether of traffic or of legislation, the normal human response is to decry the gridlock and to seek to overcome it. Just how this might be done depends on one’s political agenda, about which many possibilities exist. One agenda might try to reduce gridlock by pricing the use of roads during periods of peak congestion, which would reduce the volume of traffic. A quite different agenda might try to create subsidized systems of mass transit, which would increase budgetary requirements. Regardless of one’s agenda, one notable thing about gridlocked traffic is that all drivers agree that sitting in traffic is a waste of time and that they would prefer to arrive more quickly at their destinations.

This situation does not pertain to Congressional gridlock. Without doubt, there are people who would like to see legislation flow more quickly through Congress. Equally without doubt, however, there are also people who would like to see the flow of legislation slow down, and even stop in some cases. How one appraises and reacts to gridlock depends to some significant extent on what one thinks is the proper scope of government in society.

In this respect, the American Constitution established a system of divided and separated governmental powers that created obstacles to the enactment of legislation. Gridlock was built into our constitutional system. That built-in gridlock has been intensified by the Progressivist transformation of the federal government that has been underway over the past century or so.

Through this transformation, the federal government has shifted increasingly from producing real goods and services to transferring income among people. When the federal government was especially heavily devoted to doing such things as providing military services, keeping rivers and harbors navigable, and providing interstate highways, we faced a situation where most people thought those services were reasonable things for the federal government to do even if there were disagreements over budgetary details. Within this setting, there was much scope for compromise among members of Congress, which facilitated enacting budgets in timely fashion.

Rarely are budgets enacted in timely fashion these days. The last time Congress did so was 1996. Since then, continuing resolutions along with occasional shutdowns have become the standard mode of operation. Even worse, Congress has now placed over two-thirds of the budget on automatic pilot. Congress has thus reduced the items with which it must deal, and yet performs ever more poorly with respect to that reduced menu of items.

Through the progressivist transformation, the federal government has become increasingly dominated by programs to redistribute income and wealth. This shift in the pattern of governmental activity shrinks the scope for compromise, increasing gridlock in the process. As the federal government has moved away from supplying real goods and services that most people probably value to some degree and toward taxing some people for the benefit of others, gridlock is the natural product of the clash between those who are forced to pay and those who would benefit. And do not forget in this respect that approximately half the population is free of liability under the personal income tax, making government costless to the extent it is financed by the personal income tax.

To be sure, we should always expect some gridlock inside political processes, as was recognized at the time of the American Constitutional founding. Our present political system, however, seems to have created a significant cleavage between those who would like to be left alone by the federal government to pursue their peaceful dreams and projects and those who seek to receive support at someone else’s expense.

Yet we must recognize that governments can’t create wealth. All they can do is take and redistribute wealth that other people have created. This property of government was recognized at the time of our Constitutional founding, and we need to recapture that founding wisdom. This does not entail streamlining government to reduce gridlock, but rather requires restoring our Constitutional system of free enterprise and limited government.

Richard E. Wagner is Holbert Harris Professor of Economics at George Mason University.

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With U.S. House elections every two years, and some portion of the U.S. Senate up for re-election every two years as well, the legislative branch is the branch closest to “We The People.”  Because of the number of U.S. House Members and U.S. Senators, it is far easier for us to have access to Members of Congress than it is to the President or Members of the judicial branch. Therefore, as citizens, it is important we understand the process of how a bill becomes a law, and the powers granted to Congress b