Guest Essayist: Chris Burkett

Does the United States today resemble the nation envisioned by the American Founders? Have we lived up to the political and constitutional principles they believed are so important for maintaining a free society and remaining a self-governing people? Have we as a people done a good job of preserving those principles by educating and reminding each generation on their importance? Constituting America’s 90-Day Study on “First Principles of the American Founding” should help each of us, as citizens, think about the first two questions in a more enlightened and informed way – and certainly goes far in ensuring that the third question is answered in the affirmative.

In this series of essays, written by exceptionally thoughtful thinkers, teachers and scholars, we can discern how insightful the American Founders were in recognizing and articulating the first principles upon which the nation of America was founded. From ideas identifying the basis of rights in nature rather than tradition, to constitutional principles that established a limited government, to foreign policy principles meant to promote justice with other nations, these essays allow us to glean in a more capacious way the overarching ideas that informed who we were meant to be as a people and a nation.

These essays reveal that Americans, and especially the Founders, had learned extensively from the careful study of history. Born of English tradition, Americans gradually came to develop their own identity – one might even say “mind,” as Thomas Jefferson called it. Separated from Great Britain and largely left alone for decades, American colonists lived in relative freedom and came to establish local governments and social institutions that complemented their understanding of rights and liberties. They frequently heard these ideas of individual liberty and limited government reinforced in their churches, newspapers, shops, and businesses. The essays in the 90-Day Study, as a whole, show the story of how Americans became one people united by common principles.

The American Revolution was, in more than one sense, a test of those principles. Should the Revolution fail, the principles of liberty and self-government might be lost forever. It was also a test in the sense that Americans found themselves in the position of having to accomplish a political separation and wage a war in accordance with the very principles they declared to be self-evidently true. Winning the war and gaining independence seemed to many, including George Washington, nothing short of miraculous. Having accomplished this, Americans next found themselves having to apply the principles of the Declaration of Independence to the creation of a government that would fulfill the demands of justice both at home and toward foreign nations. In other words, Americans had to learn how to act like a nation – and this is when Americans applied and thought even more deeply about the meaning of their founding principles.

Domestically, Americans faced the great difficulty of establishing a republic, based on consent, to replace the traditional form of monarchy that had prevailed throughout most of human history. The challenge facing the Framers of the United States Constitution was how to frame a government that was sufficiently powerful to secure the natural rights of American citizens, but that was also sufficiently checked to prevent it from abusing and violating these rights and liberties. Another great challenge was to find constitutional ways of obligating America’s government to secure American sovereignty and independence, and to respect the independence and sovereignty of other nations. The essays in this 90-Day Study reveal that, to fulfill these ends, knowledge of fundamental principles proved to be the guiding star for the Framers of the Constitution, and the standard by which American citizens could judge the justice or injustice of acts of government even after the Constitution had been ratified.

In the end, these essays bring to the fore the Founders’ view that without civic virtue, no government – not even America’s own Constitutional government – can succeed. Local political participation can never be replaced by national administration without some cost to individual liberty; and despite the best efforts of the Framers of the Constitution, civic awareness and engagement is still necessary to check laws and policies that are contrary to the principled purposes of government. All of this reinforces why the Founders believed that a proper civic education of the American people was so critical – an education that informs them of both their rights and duties. This 90-Day Study, as a whole, aims to fulfill that crucially important purpose of the American Founders.

Christopher C. Burkett is Associate Professor of History and Political Science, and Director of the Ashbrook Scholar Program at Ashland University.

 

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Guest Essayist: Gary Porter
Bill of Rights of the United States Constitution

American government, as President George Washington notes, is to be based on opportunities to discuss political and policy issues by reflection and choice rather than by accident and force:

[I]f Men are to be precluded from offering their Sentiments on a matter, which may involve the most serious and alarming consequences, that can invite the consideration of Mankind, reason is of no use to us; the freedom of Speech may be taken away, and, dumb and silent we may be led like sheep, to the Slaughter. – George Washington, Speech to the Officers of the Army at Newburgh, the Newburgh Address, March 15, 1783.

The Articles of Confederation Congress had difficulty with the states meeting their funding requisitions during most of the Revolutionary War period. Ending the siege at Yorktown in General George Washington’s favor only made matters worse. With the British no longer posing a threat, the men of the Continental Army were ordered into bivouac at Newburgh, New York. Soon thereafter, Congress stopped paying them, as a “cost-saving” measure, and also stopped funding the soldiers’ pensions.

The conflict over this came to a head when an anonymous letter was circulated in Congress in which a threat was made: the Army would remove itself to “unsettled” western lands, leaving the states unprotected until such time as pay and funding resumed.

Commander-in-Chief General George Washington traveled personally to Newburgh, and in an emotional scene during which he apologized for having to use spectacles to read his prepared remarks said, “I have grown not only gray, but almost blind in the service of my country,” he convinced the officers and men to renew their trust in Congress. Washington noted that the anonymous letter was appropriate since, “[I]f Men are to be precluded from offering their Sentiments on a matter, … the freedom of Speech may be taken away, and, dumb and silent we may be led like sheep, to the Slaughter.”

“The Founders considered freedom of speech a fundamental natural right.”[i] At the same time, the right was also understood to not be absolute because during the early colonial period, “seditious words” were taken seriously and often prosecuted, as was blasphemy in most states.

When Patrick Henry proclaimed on May 29, 1765, that “Caesar had his Brutus, Charles the First his Cromwell and George the Third … may profit by their example,” he was indeed guilty of treason under English law. To “compass or imagine” the death of the King was one of the several crimes in the Treason Act of 1351, and Henry knew this. To the cries of “Treason” from some of the Burgesses in the room, Henry replied, “If this be treason, make the most of it.”

Christian thinker, G. K. Chesterton, said: “To have a right to do a thing is not at all the same as to be right in doing it.”[ii]

Sir William Blackstone agreed: “Every freeman has an undoubted right to lay what sentiments he pleases before the public…But if he publishes what is improper, mischievous, or illegal, he must take the consequence of his temerity.”[iii]  Note that Blackstone refers here to “illegal” speech; the Treason Act would provide but one example.

But other founding era philosophers disagreed. French philosopher Baron de Montesquieu,[iv] in his acclaimed work, The Spirit of the Laws, wrote: “The laws do not take upon them to punish any other than overt acts. . . . Words do not constitute an overt act; they remain only an idea.”

Without freedom of speech during the period 1760-1776, there likely would have been no revolution leading to American independence. Based on the Founder’s experience, the British would have prohibited public speeches arousing the people to claim their freedom and the press would have been severely curtailed.

“Freedom of speech is a principal pillar of a free government; when this support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruins. Republics and limited monarchies derive their strength and vigor from a popular examination into the action of the magistrates. An evil magistrate entrusted with power to punish for words, would be armed with a weapon the most destructive and terrible.”[v]

In ratifying the United States Constitution, Virginia, North Carolina and Rhode Island (both of which copied Virginia’s submission verbatim) all proposed a free speech amendment and James Madison included an amendment, which read: “That the people have a right to freedom of speech, and of writing and publishing their sentiments; that the freedom of the press is one of the greatest bulwarks of liberty, and ought not to be violated.”[vi] In successive House and Senate committees this was “wordsmithed” to the wording eventually placed within the Bill of Rights of the United States Constitution.

The Founders great emphasis on freedom of speech makes the Alien and Sedition Acts of 1798 difficult to explain. Perhaps the expression “when the shoe is on the other foot” best captures Congress’s motivation to censor and suppress speech as the infant nation of America attempted to stay neutral in the on-again, off-again war between England and France. Americans were equally split on the question of which country the John Adams administration should support (even as both England AND France were both interdicting American shipping heading for their enemy’s ports). The Sedition Act made it illegal to make false or malicious statements about the Adams administration, specifically mentioning the President while conspicuously not mentioning the Vice-President. Criticism of Thomas Jefferson was therefore fair game, and certain “Adams-friendly” newspapers took great advantage of it.

So convinced they were of the unconstitutionality of the Acts, Thomas Jefferson and James Madison consented to drafting, respectively, the Kentucky and Virginia resolutions. These essays argued that the states have both a right and a moral responsibility to declare unconstitutional acts of the national government to be so and hold them to be null and void within their state.

The U.S. Supreme Court eventually found the Sedition Act to be constitutional in United States v. Thomas Cooper (1800).[vii] Congress had set the Alien and Sedition Acts to expire on March 3, 1801; the reason being was, the following day, a new President and Vice President would be inaugurated. Over a century later, President Woodrow Wilson’s administration would bring back the Alien and Sedition Laws (as the Espionage and Sedition Acts) as the U.S. entered World War I.

The Free Speech landscape had changed drastically by 1925 when the Court “incorporated” the Free Speech Clause into the Due Process Clause of the Fourteenth Amendment in Gitlow v. New York,[viii] creating an explosion of free speech cases based on state government actions, which continued thereafter.

Although the Free Speech Clause was intended to only restrict government actions, in the 1970s, the Supreme Court began deciding that commercial “speech” could also be regulated to some extent.[ix] Since that time, regulations on commercial advertising have become commonplace.

Eventually, the Court decided that certain types of “symbolic speech,” i.e. “speaking” through actions rather than words, should also be protected.[x] Over the years, the following are some examples of types of symbolic speech among those requiring protection:

  • Wearing of black armbands (Tinker v. Des Moines Independent Community School District,1969)
  • Flag-burning (Texas v. Johnson, 1989)
  • Burning a Cross (R.A.V. v. City of St. Paul, 1992)
  • Political campaign contributions (Citizens United, 2010)

Without freedom of speech, remaining steadfast to the principle of free civil discourse and public debate without censorship, America would likely be a very different place. “Freedom of Speech is the great Bulwark of Liberty; they prosper and die together.”[xi]

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people. CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text. Gary presents talks on various Constitutional topics, writes periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter @constitutionled.

[i] Robert Natelson, The Original Constitution; What it Actually Said and Meant.”Apis Books Colorado Springs, CO, p. 212.

[ii] https://en.wikipedia.org/wiki/G._K._Chesterton

[iii] William Blackstone, Commentaries on the Laws of England, 1769.

[iv] Montesquieu was the most oft-quoted political philosopher at the Constitutional Convention, after the Bible.

[v] Benjamin Franklin, On Freedom of Speech and the Press, Pennsylvania Gazette (17 November 1737).

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

[vii] https://www.archives.gov/education/lessons/sedition-case

[viii] https://www.law.cornell.edu/supremecourt/text/268/652

[ix] https://constitution.findlaw.com/amendment1/freedom-of-speech-for-corporations.html

[x] https://mtsu.edu/first-amendment/article/1022/symbolic-speech

[xi] Trenchard and Gordon, Cato’s Letters, February 4, 1720.

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Guest Essayist: Gary Porter

Amending the Constitution Without Amending the Constitution

Article V of the United States Constitution describes that the only lawful methods, of amendment, are by its keepers, the American people. While that may have been the Framers’ intent, an unlawful method of amending the Constitution, through judicial activism, for example, usurps the legislative process of the American people when the courts are used as a legislature. Black’s Law Dictionary defines “judicial activism” as a “philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.”[1]

When the Supreme Court renders an opinion about a constitutional provision, that opinion–it is called an “opinion” and not a “law”–has traditionally assumed the status of the Constitution itself; since the Constitution is the Supreme Law of the Land (see Article VI), the American people and the federal government have given federal court opinions the same status: the law of the land. Nothing in the U.S. Constitution requires this, but that is the way America has operated as a people since the Constitution was ratified. Many distinguished men over the years have warned against this approach:

Thomas Jefferson: “[T]o consider the judges the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed and one which would place us under the despotism of an oligarchy.

Andrew Jackson: “The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges.”

Abraham Lincoln: “[I]f the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court…the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”

Is the U.S. Constitution “Alive?”

President Woodrow Wilson is credited with originating the concept of a “Living Constitution,” the idea that the Constitution must constantly be updated to reflect changes in the culture and mores of an evolving society. Who best to guide the “evolution” of the Constitution but the legal “scientists” of the federal courts? Why go through the arduous process of amending the Constitution through Article V when the Supreme Court is willing to issue an opinion which will have the same effect as a desired amendment? The Supreme Court has often been viewed as the “legislature of last resort.” Policies which have failed to gain majority acceptance in the Legislative Branch, whether state or federal, are instead “enacted into law” by the Judiciary.

The Anti-federalist called “Brutus”[2] warned: the “power in the judicial, will enable them to mould the government, into almost any shape they please.”

James Madison mentioned in Federalist 51 that the Constitution requires the government “to control itself.”[3]

Congress last proposed an amendment to the Constitution fifty-two years ago, in 1971, the Twenty-sixth Amendment. Scores of proposed amendments are introduced in Congress each session; a handful may make it out of committee; none have achieved a two-thirds vote on the floor in either chamber, or both chambers, since 1971.

Article V of the United States Constitution, on amending the Constitution, states that when two-thirds (34) of the state legislatures apply to Congress for an amendment convention, Congress shall convene one. Nothing in the Constitution describes how such a convention must operate, or the threshold within the convention for approving amendment proposals before they are transmitted for ratification, but there is ample historical evidence showing how such conventions of the states operated during the founding period and model rules for such a convention have already been composed and tested.[4]

Consider next the alternatives to amending the Constitution through an Article V convention:

  • Wait on the Supreme Court to correct past errant rulings?
  • Wait on Congress to “start following the Constitution?” The 240 years of Supreme Court opinions and interpretations have removed most limitations on Congress’ authority.
  • Wait for Congress to proffer needful amendments? How likely is it that Congress will propose term limits on themselves, propose a balanced budget amendment, narrow the interpretation of general welfare or interstate commerce, propose repealing the Sixteenth and/or Seventeenth Amendments, or propose any amendment which results in a reduction of their jurisdiction or power?

The “Article V Question” is indeed controversial. Some opponents insist it will do more damage than good. Still, with arguments on both sides, correctly amending the Constitution remains in maintaining the principle that “the United States Constitution prescribes within the document the only lawful methods of amendment, by its keepers, the American people.”

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people. CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text. Gary presents talks on various Constitutional topics, writes periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter @constitutionled.

[1] As quoted in “Takings Clause Jurisprudence: Muddled, Perhaps; Judicial Activism, No” DF O’Scannlain, Geo. JL & Pub. Pol’y, 2002.

[2] The identity of Brutus is unknown, but scholars have suggested he was either Melancton Smith of New York or John Williams of Massachusetts. See: https://en.wikipedia.org/wiki/Brutus_(Antifederalist).

[3] James Madison, Federalist No. 51, 1788, read at: https://avalon.law.yale.edu/18th_century/fed51.asp.

[4] https://conventionofstates.com/videos/official-convention-of-states-historic-simulation-live.

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Guest Essayist: Gary Porter

Prior to achieving statehood in March 1791, the Republic of Vermont placed a provision in their 1786 State Constitution. Every seven years, the people would elect a 13-person Council of Censors who would examine whether: “the Constitution has been preserved inviolate in every part, during the last septenary (including the year of their service;) and whether the legislative and executive branches of government have performed their duty, as guardians of the people, or assumed to themselves, or exercised other or greater powers than they are entitled to by the Constitution: they are also to inquire, whether the public taxes have been justly laid and collected in all parts of this Commonwealth–in what manner the public monies have been disposed of–and whether the laws have been duly executed.”[i] This Council would: “recommend to the Legislature the repealing such laws as appear to them to have been enacted contrary to the principles of the Constitution; these powers they shall continue to have, for, and during the space of one year from the day of their election, and no longer. The said Council of Censors shall also have power to call a Convention, to meet within two years after their sitting, if there appears to them an absolute necessity of amending any article of this Constitution which may be defective–explaining such as may be thought not clearly expressed–and of adding such as are necessary for the preservation of the rights and happiness of the people; but the articles to be amended, and the amendments proposed and such articles as are proposed to be added or abolished, shall be promulgated at least six months before the day appointed for the election of such Convention, for the previous consideration of the people, that they may have an opportunity of instructing their delegates on the subject.” (Emphasis added)

Laying on land claimed by both New Hampshire, New York and, at times, Canada, Vermont finally became an independent republic on January 15, 1777. It called itself the State of Vermont but failed to receive recognition by any country until admitted to the union on March 4, 1791.[ii] Because of its independency, Vermont was not invited to the Constitutional Convention in 1787. If it had been invited, would these ideas of constitutional review and revision have made it into the United States Constitution? If the U.S. Constitution had contained such a provision, what sort of amendments might have been ratified over these 234 years (as of 2023). And over these years, would the Constitutional “Council of Censors” find, repeatedly, that the Constitution had not “been preserved inviolate in every part”?

Amendment Under the Articles of Confederation

One of the chief defects of the Articles of Confederation, found in Article XIII, reads in part: “nor shall any alteration at any time hereafter be made in any of [these Articles]; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.”[iii] (Emphasis added)

This requirement for unanimity among the states meant that the Articles would never be amended or otherwise improved. In his Vices of the Political System of the United States, James Madison’s “homework assignment” to himself, he fails to mention this flaw among the twelve “vices” he identifies; it could be that much of the “blame” for America’s moving to a new Constitution is due to this one defect. At the Constitutional Convention, Charles Pinckney said “it is to this unanimous consent [provision of the Articles], the depressed situation of the Union is undoubtedly owing. Had the measures recommended by Congress and assented to, some of them by eleven and others by twelve of the States, been carried into execution, how different would have been the complexion of Public Affairs? To this weak, this absurd part of the Government, may all our distresses be fairly attributed.”[iv]

In 1781, a proposal was made to amend the Articles of Confederation to give Congress the power to set an impost on goods. Rhode Island refused to approve the measure. As described in the notes of delegate James Madison, “[t]he small district of Rhode Island put a negative upon the collective wisdom of the continent.” Just as Rhode Island’s veto prevented the adoption of an impost in 1781, New York would be the sole state to obstruct a second impost attempt two years later.

Early in 1785, a Congressional committee recommended amending the Articles of Confederation to give Congress power over commerce. Congress sent the proposed amendment to the state legislatures; only a few states responded.

Later that year, in a letter to James Warren, George Washington, wrote:  “In a word, the confederation appears to me to be little more than a shadow without the substance;..Indeed it is one of the most extraordinary things …that we should confederate for National purposes, and yet be afraid to give the rulers of that nation… sufficient powers to order and direct the affairs of the same.”[v]

In 1786, Charles Pinckney proposed a revision of the Articles. A committee debated the proposal and recommended granting Congress power over both foreign and domestic commerce, and empowering Congress to collect money owed by the states. By now, convinced that at least one state would disagree, Congress never sent the measure to the states. Given this history, it appeared to the Constitutional Convention delegates that something less than unanimity was required to amend the new Constitution they had drafted.

Amendment at the Constitutional Convention

Item seventeen of the Virginia Plan, introduced in the “Grand Convention” on May 29, 1787, stated: “Resolved. that provision ought to be made for the amendment of the articles of Union, whensoever it shall seem necessary;” There  were many provisions of the Virginia Plan to discuss and debate. The delegates did not discuss a process of amendment until a month before the end of the convention.

The U.S. Constitution, Analysis and Interpretation website,[vi] provides this account of the debates over what became Article V of the new United States Constitution:

Alexander Hamilton … suggested that Congress, acting on its own initiative, should have the power to call a convention to propose amendments.[vii] In his view, Congress would perceive the need for amendments before the states.15 Roger Sherman took Hamilton’s proposal a step further, moving that Congress itself be authorized to propose amendments that would become part of the Constitution upon ratification by all of the states.16 James Wilson moved to modify Sherman’s proposal to require three-fourths of the states for ratification of an amendment.17 James Madison offered substitute language that permitted two-thirds of both houses of Congress to propose amendments, and required Congress to propose an amendment after two-thirds of the states had suggested one.18 This language passed unanimously.19

But on September 15, 1787, two days before the convention adjourned for the last time, Article V of the draft Constitution was again discussed. To that point, the approved wording gave all power to Congress to officially propose amendments, although the states could suggest them. Virginia’s George Mason rose and cautioned that: “No amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive (as Madison wrote in his notes), as he verily believed would be the case.” Gouverneur Morris and Elbridge Gerry then moved to require a convention on application of two-thirds of the states and the motion passed “nem: con:” (unanimously). And this provided the alternate method of proposing constitutional amendments: a convention of the states. But notice the rationale for this alternate method of amendment: should Congress become oppressive.

The process of amendment placed in Article V was further debated in the state ratifying conventions, the records of Massachusetts,[viii] North Carolina[ix] and Virginia[x] particularly recording the concerns of delegates. Some convention delegates, like Virginia’s Edmund Randolph, who refused to sign the Constitution, even called for an amending convention[xi] to be immediately convened to fix the “deficiencies” in the Constitution before they went into operation, which would make them harder to correct. Madison thought the idea dangerous. Randolph’s suggestion never gained momentum and the Constitution was ratified by Virginia on June 26, 1788, four days after New Hampshire’s ratification “sealed the deal” because it was the ninth state to ratify, the number of states required by the new Constitution. Less than a year later, the new national government went into operation.

Amending the Constitution – Correctly

Article V of the United States Constitution contains two methods of proposing amendments and two methods of ratifying amendments. Congress, with a two-thirds vote of both chambers, can propose an amendment for ratification by the states and the states themselves, in a convention called for that purpose, can propose amendments for ratification. Over America’s history, all 27 current amendments have been proposed by Congress, none by a convention of the states.

Ratification of a proposed amendment can also take two forms: ratification by three-fourths of the several state legislatures (38) or ratification by three-fourths of state conventions held for that purpose, Congress may “propose” either method. Over America’s history, the later method of ratification has been used only once, to ratify the Twenty-first Amendment.

As many as five thousand amendments have been proposed in Congress since the Constitution went into effect in 1789 and only twenty-seven survived the high hurdle of committee discussions/votes followed by super majority floor votes in both chambers.

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people. CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text. Gary presents talks on various Constitutional topics, writes periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter @constitutionled.

[i] https://press-pubs.uchicago.edu/founders/documents/a5s1.html.

[ii] It was Vermont’s admission to the Union which required ratification of the Bill of Rights by ten states versus the nine required to ratify the Constitution itself.

[iii] https://www.archives.gov/milestone-documents/articles-of-confederation.

[iv] Charles Pinckney, Observations on the Plan of Government Submitted to the Federal Convention of May 28, 1787, reprinted in 3 Farrand’s Records, supra note 1, at 120–21.

[v] https://press-pubs.uchicago.edu/founders/documents/v1ch5s9.html.

[vi] https://constitution.congress.gov/browse/essay/artV-2/ALDE_00013047/#ALDF_00017913

[vii] https://constitution.congress.gov/browse/essay/artV-2/ALDE_00013047/#ALDF_00017913

[viii] https://press-pubs.uchicago.edu/founders/documents/a5s7.html.

[ix] https://press-pubs.uchicago.edu/founders/documents/a5s10.html.

[x] https://press-pubs.uchicago.edu/founders/documents/a5s9.html.

[xi] https://press-pubs.uchicago.edu/founders/documents/a7s4.html.

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Guest Essayist: Kevin Portteus

Though the concept of national borders is rejected by many,[1] with some even denouncing the very idea of borders between nations as racist,[2] at both principled and practical levels, however, secure borders are not only defensible, but essential.

More than any other single concept, the foundational principle of the American regime is the principle of natural equality. “That all men are created equal” is the first of the “self-evident truths” proclaimed in the Declaration of Independence. In his 1791 Lectures on Law, James Wilson explains that this equality does not extend to “to their virtues, their talents, their dispositions, or their acquirements,” but only that “the natural rights and duties of man belong equally to all.”[3] This equality of rights originates in “the Laws of Nature and of Nature’s God”: it is inherent in our humanity, and not dependent on any regime or government.

The political corollary of the equality principle is the principle of government by consent. Abraham Lincoln describes this as “the sheet anchor of American republicanism” and “our ancient faith.”[4] Precisely because all men are created equal, no man has the right to govern any other man, without that other’s consent. No one is inherently superior to anyone else in his right to govern. All legitimate political relationships between equal human beings must be on the basis of consent.

This principle of consent is directly applicable to immigration and border security. If borders are insecure, then people may enter into a country, without the consent of those who already comprise that country. It would be as if a homeowner had no right to prevent random people from simply walking in the front door, plopping themselves down on the couch, and claiming to live there now. A property owner has a right to control ingress into his property. A nation is the collective property of its citizens, who have consented to live with each other. If a random person could force himself on the people of a country, without their consent, then that is not a relationship of equals. It is instead tyranny.

Not only is a nation without secure borders subject to the arbitrary whim of whomever may choose to impose himself upon it, that nation also has no control over what comes across its borders. There is overwhelming evidence that huge quantities of illegal narcotics, such as fentanyl, have been pouring across America’s porous southern border.[5] Other problems are known to occur such as increased rates of diseases like polio and tuberculosis.[6] Finally, an insecure border is an invitation to engage in international human trafficking, and the practice is epidemic at the US-Mexico border.[7]  In short, a nation, which does not have secure borders, is not really a sovereign nation at all.

The power to protect the integrity of America’s borders is embedded in the United States Constitution in at least two places.  First, Article I, Section 8 states that Congress “shall have power…to define and punish…Offences against the Law of Nations.” Borders, and migration of non-citizens across those borders, were understood by America’s Founders to be a law of nations issue and are thus covered by this clause. Second, Article I, Section 9, the infamous “Importation Clause,” creates a “negative pregnant,” implying that in the absence of one very specific set of conditions, Congress may regulate “migration” into the United States, not just the “importation” of enslaved persons[8] as was being addressed by the Founders at the time of writing the Constitution. They wanted to continually reduce and end the scourge of slavery in the United States while preserving the Union and without fomenting war between the states over controversial issues.

With this understanding by the Founders, how would it be possible to maintain what makes America its own nation able to self-govern apart from any dictatorships that could take hold? As President, John Adams wrote “Our Constitution was made only for a moral and religious People. It is wholly inadequate to the government of any other.”[9] meaning that the nation of Americans possesses a specifically chosen cultural infrastructure, and the American people have historically adopted certain moral values, that make its system of constitutional self-government possible. This system, in turn, makes it possible for Americans to enjoy their natural rights. Other peoples, and other cultures, antithetical to that system of government, are thus a mortal threat to America’s political system and way of life, and Jefferson cautioned against a mass influx of peoples with opposing cultures and values, to those of America’s, in Notes on the State of Virginia.[10]

The ultimate tendency of the obliteration of borders is the obliteration of the very idea of sovereign nations. In Federalist 10, James Madison argues for the viability and desirability of a large republic, but even this has its limits.[11] The limits of communication and transportation cannot be completely overcome, and there’s more to a self-governing political society than that. The competing interests of society must have something to unite them; Madison also notes in Federalist 10 that “justice ought to hold the balance between them.” In order to constitute a true political society, a regime, they must share something fundamental, which Aristotle at the outset of The Politics calls the “good.”[12]

The natural and inherent differences in people’s thinking about ideas such as what is good and just means that the peoples of the world will never agree on them perfectly, and they can thus never come together into one regime on principles of justice. The result will either be tyranny or anarchy, as philosophers as diverse as Leo Strauss and John Rawls have noted.[13] The destruction of sovereign nations does not signify the dawn of universal justice; it rather heralds the establishment of universal tyranny.

Secure borders, then, are a necessary precondition of liberty and self-government. It allows us to distinguish between those who are members of our political community, and those who are not. It allows people who share conceptions of justice and the good to congregate into one political community and govern themselves according to those conceptions. Secure borders allow Americans to preserve the cultural infrastructure that makes the United States’ version of free self-government possible. The concept of secure borders is embedded in both American principles and constitutionalism. The destruction of secure borders would be a catastrophe for the American republic.

Kevin Portteus is Professor of Politics, Director of American Studies, and the Lawrence Fertig Chair in Politics at Hillsdale College.

 

[1] https://rooseveltinstitute.org/wp-content/uploads/2022/08/RI_TheStatueofLibertyPlan_Report_202208.pdf (accessed August 4, 2023); https://nymag.com/intelligencer/2019/04/this-is-the-immigration-policy-liberals-want.html (accessed August 4, 2023); Alex Nowrasteh, Open Immigration: Yea, in Alex Nowrasteh and Mark Kirkorian, Open Immigration: Yea & Nay (New York: Encounter Books, 2014).

[2] https://www.npr.org/2021/09/30/1041623709/the-racist-legacy-of-early-immigration-law-is-still-alive-today (accessed August 4, 2023); https://thenevadaindependent.com/article/nevada-judge-says-immigration-law-making-reentry-a-felony-is-unconstitutional-has-racist-origins (accessed August 4, 2023).

[3] https://press-pubs.uchicago.edu/founders/documents/v1ch15s48.html (accessed July 30, 2023).

[4] https://teachingamericanhistory.org/document/speech-on-the-kansas-nebraska-act-at-peoria-illinois-abridged/ (accessed July 31, 2023).

[5] https://www.nbcnews.com/politics/immigration/fentanyl-seizures-u-s-southern-border-rise-dramatically-n1272676 (accessed July 31, 2023).

[6] https://nypost.com/2023/04/18/bidens-open-borders-are-bringing-contagious-diseases-to-your-neighborhood/ (accessed July 31, 2023).

[7] https://www.nytimes.com/2022/07/25/us/migrant-smuggling-evolution.html (accessed July 31, 2023); https://www.npr.org/2021/04/24/990150761/human-smugglers-bypass-border-patrol-bedeviling-sheriffs-and-ranchers-in-south-t (accessed July 31, 2023); https://www.washingtonexaminer.com/opinion/op-eds/trouble-at-the-border-is-fueling-human-trafficking (accessed July 31, 2023).

[8] https://www.journals.uchicago.edu/doi/10.1086/705604 (accessed July 31, 2023).

[9] https://founders.archives.gov/documents/Adams/99-02-02-3102 (accessed July 31, 2023).

[10] https://vindicatingthefounders.com/library/notes-on-virginia-8.html (accessed July 31, 2023).

[11] https://founders.archives.gov/documents/Madison/01-10-02-0178 (accessed August 4, 2023).

[12] Aristotle, The Politics, book 1, chapter 1 (1252a1-3).

[13] G. P. Grant, “Tyranny and Wisdom: A comment on the Controversy Between Leo Strauss and Alexandre Kojeve”, Social Research 31, no. 1 (spring 1964): 45-72; John Rawls, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999), 36.

Guest Essayist: Amanda Hughes

Though we might give to such a government certain powers with safety, yet to give them the full and unlimited powers of taxation and the national forces would be to establish a despotism, the definition of which is, a government in which all power is concentrated in a single body. To take the old Confederation, and fashion it upon these principles, would be establishing a power which would destroy the liberties of the people… It was seen that the necessary powers were too great to be trusted to a single body; they, therefore, formed two branches, and divided the powers, that each might be a check upon the other…The State governments possess inherent advantages, which will ever give them an influence and ascendency over the National Government, and will for ever preclude the possibility of federal encroachments. That their liberties, indeed, can be subverted by the federal head, is repugnant to every rule of political calculation. – Alexander Hamilton in a speech, Compromises of the Constitution, June 20, 1788 during the New York Ratifying Convention.

On federal-state confrontation, Hamilton—an aide to General George Washington during the American Revolution and then our first Secretary of the Treasury— in speaking on this topic quoted above, as he argued for the ratification of the United States Constitution: “We might give to such a government certain powers,” he said of the proposed federal government, and yet, he continued, “to give them the full and unlimited powers of taxation and the national forces would be to establish a despotism . . . establishing a power which would destroy the liberties of the people.” Hamilton wanted the states and their people to have power, too, as a counterweight to the danger of federal usurpation. These warnings note that liberty can be destroyed through abrupt or gradual means either by a domestic tyrant or if a foreign force overwhelms it. Hamilton had the answer for both: “The State governments possess inherent advantages, which will ever give them an influence and ascendency over the National Government, and will for ever preclude the possibility of federal encroachments.”

Hamilton made it plain he sympathized with the states: “That their liberties, indeed, can be subverted by the federal head, is repugnant to every rule of political calculation.” In other words, keep the states intact, as a bulwark of freedom for themselves, and as a bulwark against national impingement. This is part of the genius of the Constitution: for every legitimate power, there’s a legitimate counter-power.

As an entity intended to be indestructible, each state has a right, and a duty, to ensure its own integrity and survival. For example, the federal government leads the national defense, but if it won’t, the states must act. For example, one of the state constitutions declares, “Texas is a free and independent State, subject only to the Constitution of the United States, and the maintenance of our free institutions and the perpetuity of the Union depend upon the preservation of the right of local self-government, unimpaired to all the States.”

Additionally, if the federal government attempts to centralize, for example, law enforcement, education, differing circumstances affecting city or county funding or regulatory needs from state to state, then local control can be usurped of its most basic foundations for maintaining self-government and accountability. Through state constitutions, state legislatures, city and town councils, civil systems closest to the people are enabled to uphold Americans in charge of their own governing.

Along with Founders such as Hamilton, others later in American history learned the importance of state sovereignty which meant local control and self-governing. For instance, Salmon P. Chase appointed by President Abraham Lincoln in 1864 as Chief Justice of the United States, in 1869, Chase opined on behalf of the Court, “The Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States.” So how, precisely, does the indestructible Union interact with the indestructible States? That is a question each generation of Americans must carefully discern through the study of history.

America’s Founders, and Framers of the Declaration of Independence and Constitution knew the dangers of centralized government that easily usurped the local decision-making process. From the study of world history, they understood this well leading up to what would be contained in the words of the Declaration of Independence, and fought for in the American Revolutionary War. Though they did not want war, they were willing to do so for independence. They discussed through meeting together, writing letters, pamphlets and newspaper articles about how freedom is not free and that the steps to gain independence would be slow and difficult, but worth it. They understood how a government distant from the people could easily turn into a tyrannical dictatorship of top-down control. From the perspective of America’s Founders, Framers of the Declaration of Independence, and eventually the United States Constitution, it was far better to protect local decision-making that would not remove self-governing from the people than to allow centralization of government to take root. This was the importance they saw in limiting the federal government and ensuring liberty of the states and localities of America.

This understanding was more stark to them each day of work it took to gain their independence from Great Britain and eventually form a different type of government. Samuel Adams emphasized this importance after the Second Continental Congress adopted the Declaration of Independence July 4, 1776. Then a little over a week later the Articles of Confederation were presented on July 12 that would serve as a constitution to get the new nation’s government started. In his speech “On American Independence” on August 1, 1776, Adams stated: “Our Union is now complete; our Constitution composed, established, and approved. You are now the guardians of your own liberties. We may justly address you as the decemviri did the Romans, and say: ‘Nothing that we propose can pass into a law without your consent. Be yourselves, O Americans, the authors of those laws on which your happiness depends.’”

The ideas that animated the debate over the United States Constitution nearly a quarter-millennium ago are as alive today as today’s headlines. The principle of distinguishing between the purpose of federal and state governments cannot be overstated. Maintaining the Union through preventing federal encroachments on the states and individual Americans is vital to the foundation of self-governing and independence. Legal and political issues that threaten the ability of the states to maintain local control continually prove the Constitution so relevant and urgent for American citizens to understand and apply.

Amanda Hughes serves as 90-Day Study Director for Constituting America. She is author of a book on faith and voting, Who Wants to Be Free? (WestBow Press). She is a story contributor for the anthologies Loving Moments and Moments with Billy Graham (Grace Publishing). She served as editor of her father’s book, Adventures, Wit & Wisdom: The Life & Times of Charlie Hughes (WestBow Press). Amanda received her B.A. from Texas State University and her M.A. from Southwestern Baptist Theological Seminary.

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Guest Essayist: Tony Williams
Independence Hall, Philadelphia, Pennsylvania

“The freedom of speech is a principal Pillar in a free Government: when this support is taken away the Constitution is dissolved, and Tyranny is erected on its Ruins.” – Pennsylvania Gazette, November 17, 1737, printed by Benjamin Franklin, later reprinted in the Barbados Gazette, 1738, and attributed to Pennsylvania Lawyer and Pennsylvania Colonial Representative as having possibly been the author of the article.

The Declaration of Independence asserts the self-evident truth that all human beings are created equal and endowed with natural rights. The Declaration then states that governments are established with the purpose of protecting those rights with the consent of the governed. This Lockean conception of social compact theory supported a representative government in the American republic.

The concept of consensual government naturally supported the idea of freedom of speech. While the nature of free speech differed from America’s modern conception, the principle of political free speech was fundamental to a republican form of government and self-governing society. Expressing political opinions in speech and in print, engaging in hearty debate and deliberation, and giving consent to representatives in legislatures were all essential for self-governance.

In The Federalist No. 51, James Madison wrote, “In republican government, the legislative authority necessarily predominates.” As the first branch of government, Congress most embodied the principle of self-government and representation. The legislative branch, both in Congress and the state legislatures, was the center of deliberation, debate, and consensus.

Indeed, the American founding experienced great deliberative moments that represented profound moments of reflection and discussion. These debates demonstrate the importance of free speech to exchange political viewpoints in a free society. In each case, they show that free debate of clashing viewpoints can result in the common good. For example, the members of the Second Continental Congress were unsure or even opposed to independence in early 1776. A vigorous debate occurred in which both sides of the issue sought to persuade the other. Eventually, the Congress unanimously agreed to independence.

During 1787-1788, the great deliberative moment of making and ratifying the United States Constitution witnessed robust debates between the Federalists and Anti-federalists over the principles of human nature and government. The debates took place in the secret Philadelphia convention, but the vigorous conversation moved into state ratifying conventions, newspapers and pamphlets, private letters, and taverns.

In the early republic, the George Washington presidential administration had its share of highly partisan and contentious debates. The debates over Secretary of the Treasury Alexander Hamilton’s financial plans and the crafting of American foreign policy were rooted in constitutionalism and establishing the right precedents for the new government as prescribed in the new Constitution. These deliberations could be offensive and personal, but they were also deeply rooted in constitutionalism as both sides took the document seriously.

In all of these debates, the key principle was the element of free speech. The representatives and the people freely asserted their views about the best ways to achieve good government. They may have often had rival conceptions of the public good, but they built consensus through sharing and debating those ideas, listening to the arguments of the other side, and trying to persuade others of a reasonable viewpoint. For these reasons, holding to the first principle of free speech and thought has always been a core component of a self-governing people.

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

 

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Guest Essayist: George Landrith

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

“…there must be Associations of Men of unshaken Fortitude. A general Dissolution of Principles & Manners will more surely overthrow the Liberties of America than the whole Force of the Common Enemy.” – Samuel Adams, in a letter to James Warren, Philadelphia, February 12, 1779.

The Bill of Rights doesn’t grant or create rights, but it does outline and protect rights. Our nation’s Founders believed that rights were given to us by our Creator. But they also believed that the proper role of government was to protect God-given rights. The freedom of association is a fundamental right of a free people. The First Amendment lays out the basis for the freedom of association — which simply means we have the right to associate with like-minded people, if we choose to.

The First Amendment explicitly protects religious freedom, freedom of speech and of the press, the right to assemble peacefully, and to petition the government to remedy injustice. While the phrase “freedom of association” does not appear in the United States Constitution, the right is wrapped up in the ideas of freedom of speech, the right to peacefully assemble, and the right to petition our government as well as the Due Process Clause of the Fourteenth Amendment.

It is important to remember that the Bill of Rights was never intended to list every God-given right that we have. The Ninth Amendment explicitly states this point — “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Likewise, in some ways the Bill of Rights is more a list of limits on the power of government than it is a list of rights. For example, the First Amendment states “Congress shall make no law ….” The Second Amendment says that the right of the people “shall not be infringed.” The Fourth Amendment says that “the right of the people … shall not be violated….” The Eighth Amendment prohibits government from imposing cruel and unusual punishments and excessive bail and fines.

If the Bill of Rights had been intended by our Founders to be a complete and comprehensive list of every God-given right that we had, it would have been much, much longer. The issues raised in the Bill of Rights were things that the Founders had experience with. They had seen the British crown mandate religious practices, limit speech, destroy presses that published disfavored ideas, and try to confiscate American guns. They had also seen Redcoats terrorize Americans, searching and destroying their homes and businesses without due process. They had also seen throughout history a number of abuses by other overbearing and unjust governments. So the Bill of Rights was only a partial listing of the rights that history had taught them were most likely to be abridged by a tyrannical government.

America’s Founders did speak specifically of the freedom of association. Samuel Adams was an ardent patriot, an influential leader of the movement for American Independence, and a cousin of John Adams. In a letter dated February 12, 1779, to James Warren — a fellow advocate for American independence and a Major General in George Washington’s Continental Army — Sam Adams wrote “…there must be Associations of Men of unshaken Fortitude. A general Dissolution of Principles and Manners will more surely overthrow the Liberties of America than the whole Force of the Common Enemy.”

It makes perfect sense that America’s Founders would see the freedom of association as foundational to a free society. They had gathered together and worked together to promote American independence. And the British Crown had attempted to make those associations a criminal activity. America’s Founders understood that they would have to associate and work with other Americans who shared their desire for independence. The British attempt to deny them the right to associate with like-minded Americans was simply an attempt to silence them and prevent them from petitioning the government for redress of their grievances. And only after years of presenting their grievances and being entirely rebuffed did they finally decide to declare their independence.

A logical extension of the rights of free speech and the right to peacefully assemble is the freedom of association. So while the actual words “freedom of association” do not appear in our Bill of Rights, the principle of freedom of association is clearly intended by our Founders and the United States Constitution. If you only have the freedom of speech as an individual, but cannot align yourself with others who share your views, that would give government the power to limit your ability to effectively speak your mind or petition the government.

Likewise, freedom of association includes the right for a group or association to establish its own rules for governing the internal affairs of the group. Imagine if government could regulate political parties or issues-based groups and how they operate. If government had this power it could effectively stifle a political group’s ability to petition the government or to speak out on policies that it supports or opposes.

Freedom of association also includes the freedom to not associate. An example of unwanted association is when a group tries to force employees to contribute to spending on ideological or political issues that employees may disagree with. The point is that government should not be requiring people to associate or preventing them from associating. In a free society, people get to decide what groups they agree with and which ones they disagree with and to either associate or not to associate based on their own determination — not government mandates.

We have a wide variety of possible associations — family, friends, neighbors, schools, the workplace, clubs, political parties, issue-based groups, etc. Not all are voluntary — for example, we are typically born into a family, we don’t choose the family we belong to. But once we become adults, we do choose how closely we want to align with and associate with our family. Likewise, young children don’t really choose to attend school or even a particular class.

But by the time we are adults, our associations are by choice — the church we go to or don’t go to, the job that we choose to pursue, and the clubs or organizations that we join or support. In a free society, government ought not be dictating what friendships, memberships, or groups we must maintain or support, and alternatively those which we must avoid or spurn. And government should not impose rules upon groups which discourage membership or punish those who align with the group.

In 1958, in NAACP v. Alabama, the Supreme Court unanimously held that the freedom to associate was part and parcel of free speech and peaceable assembly and that it also flowed from the Due Process Clause of the Fourteenth Amendment. The case involved the State of Alabama trying to deny the NAACP the right to operate within the state unless the organization fully disclosed its membership and donor lists.

The NAACP was concerned that such disclosure could be used to harass its members and would significantly limit its ability to align with Americans who supported civil rights and equal rights for all citizens. The U.S. Supreme Court unanimously held that the freedom to associate was part of the ability to engage in free speech and to peacefully assemble and that advancing your beliefs through association with like-minded people was an inseparable part of the Bill of Rights and the Due Process Clause of the Fourteenth Amendment.

Freedom of association is part of American life since the nation’s earliest days. We even associate with other Americans via social media. It is instructive that totalitarian regimes like North Korea, China and Iran outlaw free association. If you’re spotted visiting or dining with the wrong people, these regimes will punish you. If you attend religious services, or have friends who attend such services or have friends who are known to support reforms, you will be punished.

Even China’s social credit program is designed to enforce a mechanism that requires its populace to maintain only those relationships that are approved of by the government. No free society can tolerate a government that believes it has the power or authority to dictate associations in this fashion.

America’s Founders wisely understood that a free people must have the right to think for themselves, to speak freely, to petition their government without reprisals, to create associations to further their beliefs and leverage their speech, and to work individually or in association with others for policy reforms. The nation of America has been blessed that its Founders recognized this important fundamental right of freedom of association.

If America hopes to continue to be a free people, then we must continue to embrace and defend free speech, freedom of the press, freedom of conscience, the right to petition the government and the freedom of association. These freedoms are foundational elements of self-determination.

George Landrith is the President of Frontiers of Freedom.

 

 

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Guest Essayist: Tony Williams

“How then will it be possible, under these circumstances, to endure this Tax which is laid upon us by Parliament? –Add to this, that it will drain the Province of the little Cash left among us, which at present barely serves for a Medium of Trade…And if you should be active in bringing this Tax upon yourselves, at it will inevitably destroy our constitutional Privileges, so it will perpetuate to the latest Posterity, a most despicable Opinion of the civil Principles of their Ancestors…But should your Representatives be instructed by you, (which God forbid!) by a solemn and public Act to promote the Operation of this Law, you will implicitly declare that you resign that inestimable Right; and, in Consequence of such Resignation, you may next expect a Tax on your Lands; and after that one Burthen on the Back of another, till you are reduced to a State of the most abject Poverty…The Effects I presage are dreaded far and wide. –Would to God our Terror was merely panic, and that the Disagreeableness of the Act arose only from its Novelty. –But our Fears are founded on Reason and universal Experience…Consider gentlemen, that the least infraction of your Liberties is a Prelude to Encroachments…Indolence –Indolence has been the Source of irretrievable Ruin –Languor and Timidity, when the Public is concerned, are the origin of Evils mighty and innumerable” –A letter authored only using the initials W.B. “To the Inhabitants of the Province of the Massachusetts-Bay,” concerning the Stamp Act, appeared in The Boston-Gazette and Country Journal, October 7, 1765.

In 1765, the Stamp Act ignited a storm of protest and led to a series of events that sparked a revolution of the American colonies against Great Britain. The dreaded act was a British tax on colonial stamps on newspapers, legal documents, and playing cards among other items. The taxes provoked a strong reaction against the colonists who raised cries that they were being taxed without representation in Parliament.

The colonists resorted to several different forms of protest to the taxes. At first, they petitioned the king and Parliament claiming their constitutional liberties as Englishmen and their natural rights. Soon after learning of the impending taxes, in December 1764, the Virginia House of Burgesses was the first to level a protest and sent a petition stating that, “The people are not subject to any taxes but such are laid on them by their own consent.”

In addition, colonists formed mobs that intimidated and coerced the Stamp Act collectors into not collecting the tax and resigning their offices. Some were threatened with violence, others were burned in effigy, and one was frighteningly buried alive until he relented. Other acts of violence erupted, with Boston mobs tearing down the Stamp collector’s office and vandalizing and plundering the home of Lieutenant Governor Thomas Hutchinson.

The colonists also began to demonstrate a sense of common identity and unity when nine colonies agreed to meet at the Stamp Act Congress in New York. After their deliberations, the delegates agreed to a declaration of rights asserting their fundamental liberties. Foremost among these was the right not to be taxed without their consent. “It is inseparably essential to the freedom of a people, and the undoubted right of Englishmen, that no taxes be imposed on them, but with their own consent, given personally, or by their representatives.”

British merchants were devastated financially by the colonial boycotts of British goods. They petitioned the king and Parliament for relief and eventually found it when Parliament revoked the Stamp Act Taxes. However, the Parliament also passed the Declaratory Act, which affirmed that principle that the body could legislate and tax the colonists in “any case whatsoever.”

The clashing perspectives of the colonists and British showed a fundamental disagreement over taxation and the powers of government. The parliamentary assertion of unlimited authority to govern the colonies led to additional attempts to tax the colonists, who predictably stood by the principle of no taxation without consent and resisted the taxes.

In 1767, Parliament passed the Townshend Acts which were a tax on a variety of items including glass, paint, paper, and tea. The colonists again resolved not to import British goods, which dried up trade between Great Britain and her colonies. Parliament relented and revoked the taxes but soon passed the Tea Act which collected three pennies per pound.

While it might seem like a trifling amount, Virginian George Washington explained that it was the principle that was at stake rather than the money. “What is it we are contending against? Is it paying the duty of 3d. per pound on tea because burdensome? No, it is the right only…as Englishmen, we could not be deprived of this essential and valuable part of our Constitution.”

The Boston Tea Party in late 1773 was the clearest expression of colonial opposition to being taxed without consent. The British retaliated harshly with the Coercive Acts shutting down the Port of Boston, banning town meetings and self-government, and allowing British colonial officials to escape American justice. This course led to the First Continental Congress and the first shots of the war being fired at Lexington and Concord. One of the grievances of the Declaration of Independence was “imposing Taxes on us without our Consent.”

During the war and after, however, the opposition to central authority provoked by resistance to British tyranny meant that one of the problems in the new nation was the inability to tax and collect adequate revenue. During the period, the Continental and Confederation Congress relied primarily on requisitions to the states for taxes, which were frequently ignored. Meanwhile, the states and national government were burdened by large war debts. The national government under the Articles of Confederation was especially unable to pay it off or use revenue to pay for armies to suppress internal rebellions such as Shays’ Rebellion.

Article I of the new United States Constitution empowered the Congress to pass taxes with the consent of the people through their elected representatives. Article I, section 8 stated: “The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States.”

However, because of the fear that the Senate might form a corrupt cabal with the executive branch, and because the House of Representatives was the only popularly-elected branch of government and was closest to the people, any bills in Congress for taxes had to start in the House. Article I, section 7 states, “All Bills for raising revenue shall originate in the House of Representatives.”

Taxation in the United States was often controversial from the tariff and protective tariff in the nineteenth century to the escalating tax rates to fund a growing federal government in the twentieth and twenty-first centuries. The ideals of the American founding continued to shape American concerns and fears of centralized government and taxation. Supreme Court Chief Justice John Marshall asserted in McCulloch v. Maryland (1819) that, “The power to tax involves the power to destroy.” Americans have believed since the founding that a government that taxes too much destroys liberty.

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

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Guest Essayist: Joerg Knipprath

Religious freedom, assembling, speaking freely and defending the nation’s liberty. “While the People are virtuous they cannot be subdued; but when once they lose their Virtue they will be ready to surrender their Liberties to the first external or internal Invader. How necessary then is it for those who are determind to transmit the Blessings of Liberty as a fair Inheritance to Posterity, to associate on publick Principles in Support of publick Virtue. I do verily believe, and I may say it inter Nos, that the Principles & Manners of New England produced that Spirit which finally has establishd the Independence of America; and Nothing but opposite Principles and Manners can overthrow it.” – Samuel Adams, in a letter to James Warren, Philadelphia, February 12, 1779.

In A Defence of the Constitutions of Government of the United States, John Adams mused about a lengthy quote from Aristotle’s Politics. There, Aristotle extols the benefits of a polis controlled by a broad middle class and warns of the danger to societies if the number of the middle class dwindles. His assessment of the best practical political system is consistent with what is called the “Golden Mean,” a concept taken from Aristotle’s Nicomachean Ethics. For the most part, excellence of the soul—virtue—lies in taking a path between two extremes that are vices. Another key element of classical Greek philosophy was that excellence of the person and of the state were intimately connected, that the polis was the soul writ large, so the analogy of the benefits of moderation for the individual to the benefits of middle-class government for the state was obvious.

It is worth quoting Aristotle at length on this point, as Adams did:

“In every city the people are divided into three sorts, the very rich, the very poor, and the middle sort. If it is admitted that the medium is the best, it follows that, even in point of fortune, a mediocrity is preferable. The middle state is most compliant to reason. Those who are very beautiful, or strong, or noble, or rich, or, on the contrary, those who are very poor, weak, or mean, with difficulty obey reason.… A city composed only of the rich and the poor, consists but of masters and slaves, not freemen; where one party despise, and the other hate; where there is no possibility of friendship, or political community, which supposes affection. It is the genius of a free city to be composed, as much as possible, of equals; and equality will be best preserved when the greatest part of the inhabitants are in the middle state. These will be best assured of safety as well as equality; they will not covet nor steal, as the poor do, what belongs to the rich; nor will what they have be coveted or stolen; without plotting against any one, or having any one plot against them, they will live free from danger. For which reason, Phocylides wisely wishes for the middle state, as being most productive of happiness. It is plain then that the most perfect community must be among those who are in the middle rank; and those states are best instituted, wherein these are a larger and more respectable part, if possible, than both the other; or, if that cannot be, at least than either of them separate; so that, being thrown into the balance, it may prevent either scale from preponderating. It is, therefore, the greatest happiness which the citizen can enjoy, to possess a moderate and convenient fortune. When some possess too much, and others nothing at all, the government must either be in the hands of the meanest rabble, or else a pure oligarchy. The middle state is best, as being least liable to those seditions and insurrections which disturb the community; and for the same reason extensive governments are least liable to these inconveniences; for there those in the middle state are very numerous; whereas, in small ones, it is easy to pass to the two extremes, so as hardly to have any medium remaining, but the one half rich, and the other poor. We ought to consider, as a proof of this, that the best lawgivers were those in the middle rank of life, among whom was Solon, as is evident from his poems, and Lycurgus, for he was not a king; and Charondas, and, indeed, most others. Hence, so many free states have changed either to democracies or oligarchies; for whenever the number of those in the middle state has been too small, those who were the more numerous, whether the rich or the poor, always overpowered them, and assumed to themselves the administration. When, in consequence of their disputes and quarrels with each other, either the rich get the better of the poor, or the poor of the rich, neither of them will establish a free state, but, as a record of their victory, will form one which inclines to their own principles, either a democracy or an oligarchy….”

This critique of pure oligarchic or democratic systems has been summed up as the unwelcome prospect of the rich stealing from the poor in the former, and the poor stealing from the rich in the latter.

Adams quoted this passage with approbation, but occasionally expressed opinions which seemed to be at odds with Aristotle’s political theory. Aristotle proposed a mixed government (mikte) as the most stable and conducive to human flourishing. The mixed government would not be democratic or oligarchic but would have elements of both in a mediated balance, such as in Athens, where the popular Assembly was balanced by the Council of 500 and its steering committee. Adams’s own work in drafting the Massachusetts Constitution of 1780 incorporated a similar bicameral structure in a Senate and a House of Representatives, with qualification for election to the former requiring ownership of an estate three times the value of property needed for election to the latter. But he also put in place a further structure of separation and balance of powers among the three branches of government, explicitly affirmed in Article XXX of that constitution, so that “it may be a government of laws and not of men.”

Aristotle’s description of the instability of pure systems such as oligarchy and democracy was not new with him. Plato and other Greeks had done likewise. American writers had similar misgivings. James Madison addressed such instability in his writings in The Federalist, especially in his discussion of factions in essay No. 10. Aristotle’s observation that “extensive governments are least liable to these inconveniences; for there those in the middle state are very numerous; whereas, in small ones, it is easy to pass to the two extremes, so as hardly to have any medium remaining, but the one half rich, and the other poor,” sounds remarkably like Madison’s defense of the national government.

Factions are the result of the inevitable inequality of rights in property which proceeds from the natural inequality of talents. “Those who hold, and those who are without property, have ever formed distinct interests in society.” Moreover, because of the inherent nature of democracies, where a small number of citizens conducts the government in person, those factions are most likely to become entrenched, with the stronger party sacrificing the weaker. “Hence it is, that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security, or the rights of property; and have, in general, been as short in their lives, as they have been violent in their deaths.” This remark might as well have been a summary of Athenian politics. Again, Aristotle’s observation, “When, in consequence of their disputes and quarrels with each other, either the rich get the better of the poor, or the poor of the rich, neither of them will establish a free state,” matches Madison’s critique.

The instability and short survival of democracies carried over to other small political entities.

“The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing the majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plan of oppression….[T]he same advantage, which a republic has over a democracy, in controling the effects of faction, is enjoyed by a large over a small republic…is enjoyed by the union over the states composing it.”

Specifically,

“…a religious sect may degenerate into a political faction in a part of the confederacy; but the variety of sects dispersed over the entire face of it, must secure the national councils against any danger from that source: a rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the union, than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district than an entire state.”

Samuel Adams’s letter to James Warren quoted in the introduction to this essay tied stable government and individual liberty to virtue and bound private and public virtue to each other. This emphasis on the interdependent virtue of the citizen and of the society was the essence of classical republicanism and a fundamental concept in the political philosophy of Greek and Roman writers. Moreover, Adams confided to his fellow New Englander that it was the “Principles & Manners” of that region which produced the spirit of liberty that fueled the drive to American independence. In the views of many New Englanders, especially Samuel’s cousin John Adams, widely-distributed land ownership of medium size lay at the heart of developing those New England principles that allowed for private and public virtue to take root.

In that letter to Warren, Adams also echoed Aristotle’s identification of a free city with a large middle class, whose ownership of a moderate estate made them most receptive to governance based on reason. Government by reason is analogous to the exercise of public or civic virtue and is most conducive to happiness (eudaimonia). When Aristotle declares, “It is plain then that the most perfect community must be among those who are in the middle rank,” he is associating excellence of government with a middle-class society. Excellence was arete in Greek. In Rome, the Latin translation became virtus and denoted a particular type of attribute and action that connected private character and public conduct.

The inevitable link between widespread property ownership of land, a virtuous citizenry, liberty, and survival of republican government was a common theme outside New England, as well. Although property ownership in the South was somewhat more complex due to the existence of the planter class in the Tidewater regions, other regions of the area still had a large class of yeoman farmers with moderate estates. Two of the most prominent advocates of Southern agrarian republicanism were Thomas Jefferson and John Taylor. Jefferson sought to realize his idealized virtuous republic of artisans and yeoman farmers politically through his promotion of land sales in the Old Northwest and the acquisition of Louisiana. Taylor’s writings on land ownership, virtue, liberty, and republican institutions brought systematic cohesion to agrarian republicanism and tied its principles to contentious issues of public policy.

But faith in a virtuous middle class as the source of personal liberty and political stability was not blind. Various writers, including John Adams in 1776, expressed reservations about the capacity of Americans to acquire the virtue necessary for self-government. New Englanders’ faith in their virtue and their fitness for republican government was shaken severely by the tax rebellion of Daniel Shays and his followers in 1786. Perhaps such virtue was not possible without a strong hand of government to correct deviations. More Americans were forced to confront that issue during and after the Whiskey Tax Rebellion in Pennsylvania from 1791 to 1794. After all, in both scenarios, the challenge to the republican governments had come from yeoman farmers, the supposed embodiments of republican virtue.

Southern agrarians had always been more skeptical that there was sufficient virtue among politicians to maintain republican government. Their experience with the turbulence and corruption of state governments after independence only confirmed their doubts. Madison expressed that sentiment in essay No. 51 of The Federalist. While there was some basis to believe that the people might acquire the requisite virtue, in the case of politicians it was best to assume that “the better angels of [their] nature,” to borrow Abraham Lincoln’s famous language from years later, would not direct their actions. It was more likely that pure self-interest and desire for power would be their motivation.

Therefore,

“[a]mbition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, nether external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

Those auxiliary precautions lay in the structure of the government under the Constitution, primarily a separation of powers and blending and overlapping of functions as in John Adams’s Massachusetts constitution.

Madison was not alone in declining to place all bets for success of republican self-government and liberty on human virtue. Samuel Adams may have been correct that those “Blessings of Liberty” cannot be passed on without cultivating virtue in the people, especially the virtues of the Aristotelian golden mean. Self-government requires self-restraint. But virtue, though necessary, may not be sufficient. “The best republics will be virtuous, and have been so,” the other Adams—John—concluded in the last pages of the multivolume Defence in the somewhat stilted syntax of his time,

“But we may hazard a conjecture, that the virtues have been the effect of the well-ordered constitution, rather than the cause: and perhaps it would be impossible to prove, that a republic cannot exist, even among highwaymen, by setting one rogue to watch another; and the knaves themselves may, in time, be made honest men by the struggle.”

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

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Guest Essayist: Andrew Langer

“To suppress Enquiries into the Administration is good Policy in an arbitrary Government: But a free Constitution and freedom of Speech have such a reciprocal Dependence on each other that they cannot subsist without consisting together.” – Pennsylvania Gazette, November 17, 1737, printed by Benjamin Franklin, later reprinted in the Barbados Gazette, 1738, and attributed to Andrew Hamilton, a Pennsylvania Colonial Representative, and lawyer who defended John Peter Zenger who was arrested for criticizing the government, as having possibly been the author of the article.

The age-old proclamation made in the Pennsylvania Gazette, attributed to Andrew Hamilton, regarding the “reciprocal dependence” between the United States Constitution and free speech, resonates powerfully with the principles held dear by anyone deeply concerned with balance of power between individuals and their government: the inseparability of a free constitution and freedom of speech. For a republican form of government to remain genuinely representative, it is imperative to ensure that citizens can air their grievances without fear of retaliation. To suppress the voice of the people is, in effect, to suppress the very essence of democracy which is the means a representative republic uses to make apparent the consent of the governed.

At the heart of a representative government lies the principle that those in power are there to serve, and not to dictate. They are but emissaries, chosen by the populace to voice their hopes, aspirations, and concerns. Such representation is hollow if the populace cannot, or is afraid to, communicate openly.

Civil discourse, which is simply the ability to discuss and debate matters of public interest in a reasoned and respectful manner, is the bedrock upon which representative government stands. Without it, the bridge between the representatives and those they represent is broken. The essence of representative government is lost if its constituents cannot engage in free discourse without fear of persecution.

Traditionally, classical liberals (which is how one can describe most, if not all, of the founding fathers) firmly believe in the principle of minimal government intervention in the lives of its citizens. Freedom of speech, as a cornerstone of liberty, is not just the ability to speak one’s mind but to do so without fear of government retribution. To silence or suppress speech is to curb the very freedom that serves as a bulwark against tyranny.

The case of John Peter Zenger, defended by Andrew Hamilton, stands as a testament to the dangers of a government that seeks to stifle criticism. Arrested for merely voicing his critique of the establishment, Zenger’s plight underscores the importance of preserving unhindered freedom of speech. When governments are allowed to decide what can and cannot be said, we tread perilously close to the realms of despotism.

The quote from the Pennsylvania Gazette highlights a profound truth: a free constitution and freedom of speech are interdependent. Without the liberty to speak one’s mind, a constitution, however free in letter, becomes tyrannical in spirit. Conversely, freedom of speech without a constitution that protects and upholds it is but an illusion.

The reason for this reciprocal relationship is clear. A free constitution provides the framework within which rights, including freedom of speech, are preserved. Meanwhile, unhindered freedom of speech ensures that this constitution remains truly representative, constantly held to account by the voice of the people.

In an age where voices are increasingly stifled under the guise of various reasons, it is paramount to remember the wisdom of yesteryears, as echoed by Andrew Hamilton. To suppress inquiries into administration might be the hallmark of autocracy, but in representative government, the voice of the people must remain unbridled and unbroken.

In any dynamic society that prides itself on progress, innovation, and the welfare of its people, the free flow and exchange of ideas is not just a luxury, but an absolute necessity. The significance of this cannot be overstated, particularly when it comes to addressing and solving the myriad problems society faces. At their core, the principles upon which this nation was founded cherish the values of individual freedom, limited government, and the sanctity of personal choice. This philosophy acknowledges that every individual, with their unique experiences and perspectives, has the capacity to contribute to the vast tapestry of human knowledge. However, this can only be realized if they are allowed and encouraged to express themselves freely, even if their ideas are unpopular or deemed contentious.

At the foundation of the free exchange of ideas is the belief in the “marketplace of ideas,” a theory that the truth will emerge from the competition of ideas in free, transparent public discourse. Just as economic markets rely on competition to produce the best goods and services, intellectual progress requires a contest of ideas. Suppressing unpopular or controversial ideas, even those deemed false or harmful, doesn’t necessarily make them disappear. Instead, it drives them underground where they are not subject to public scrutiny, critique, and potential refutation.

Moreover, it creates a “marketplace of ideas.” Many of the most groundbreaking discoveries and social movements in history were once viewed as controversial or even heretical. Galileo’s heliocentric model and the rights of women to vote were both, at different times, unpopular ideas. Without the freedom to challenge prevailing notions and the status quo, society would stagnate, and advancement would be hindered. A society that is open to the free exchange of ideas is more adaptable, resilient, and inventive.

Free speech also offers protection from despotism and tyranny. One of the most potent tools at the disposal of tyrannical regimes is the suppression of speech and the curtailment of the free exchange of ideas. By controlling the narrative and silencing dissent, these regimes can maintain power and perpetuate their ideologies unchallenged. History has repeatedly shown the dangers of this approach. Protecting even unpopular speech ensures a check against potential governmental overreach and tyranny.

One can also not understate the importance of freedom of speech to the betterment of men and women themselves, outside of just the political realm. On an individual level, exposure to a wide array of ideas, even those that challenge our deeply held beliefs, is essential for personal growth. It encourages critical thinking, promotes empathy by understanding various perspectives, and enriches our knowledge base. Suppressing unpopular speech denies individuals these opportunities. Promoting the greatest amount of speech ensures a vibrant civil society.

The freest speech also is a way to ensure that society solves its own problems. No society is without its problems, and often, it is only through open dialogue and the free exchange of ideas that these issues come to light. Unpopular speech can draw attention to overlooked issues, catalyze movements for change, and present alternative solutions to pervasive problems. Silencing such speech, on the other hand, can perpetuate ignorance and hinder society’s ability to address its challenges.

The suppression of speech, particularly when it involves the silencing of religious or ethnic expressions, can have dire consequences on societal cohesion and stability. Yugoslavia, under its Communist regime, is a poignant example of this phenomenon. The country, a mosaic of ethnicities and religions, was kept together through strong centralized governance and strict control over nationalist sentiments. The Communist authorities aimed to forge a unified Yugoslav identity, which involved suppressing religious and nationalist expression, relegating it to the private sphere, and often demonizing it in the public sphere. This suppression did not eradicate the deeply-rooted ethnic and religious sentiments; rather, it drove them underground, where they festered, accumulated grievances, and lacked the necessary open space for dialogue and reconciliation.

When the Communist regime in Yugoslavia disintegrated in the early 1990s, the suppressed sentiments and grievances came to the surface with a vengeance. Without the structures or platforms for peaceful dialogue in place, these sentiments exploded into sectarian violence, leading to a series of brutal wars that resulted in the dissolution of Yugoslavia. Had there been a more open space for religious and ethnic expression during the Communist era, communities might have had the opportunities to address and possibly reconcile their differences or at least coexist peacefully. Instead, the suppression created a vacuum, and when the lid was abruptly removed, the pent-up frustrations and hostilities were unleashed in a tragic wave of violence. This serves as a powerful reminder of the dangers inherent in suppressing speech and the importance of fostering open dialogue in multi-ethnic and multi-religious societies.

The importance of the free flow and exchange of ideas, even those that are unpopular, cannot be emphasized enough. Such freedom is at the very core of a thriving, advancing society. In embracing the free exchange of ideas, the fundamental human right to express oneself is championed, and fostered is an environment ripe for innovation and the holistic betterment of society.

Andrew Langer is President of the Institute for Liberty, a Fellow with Constituting America, as well as Chairman and Founder of the Institute for Regulatory Analysis and Engagement. IFL is a non-profit advocacy organization focused on advancing free-market and limited government principles into public policy at all levels. IRAE is a non-profit academic and activist organization whose mission is to examine regulations and regulatory proposals, assess their economic and societal impacts, and offer expert commentary in order to create better public policies. Andrew has been involved in free-market and limited-government causes for more than 25 years, has testified before Congress nearly two dozen times, spoken to audiences across the United States, and has taught at the collegiate level.

A globally-recognized expert on the impact of regulation on business, Andrew is regularly called on to offer innovative solutions to the challenges of squaring public policy priorities with the impact and efficacy of those policies, as well as their unintended consequences. Prior to becoming President of IFL and founding IRAE, he was the principal regulatory affairs lobbyist for the National Federation of Independent Business, the nation’s largest small business association. As President of the Institute for Liberty, he became recognized as an expert on the Constitution, especially issues surrounding private property rights, free speech, abuse of power, and the concentration of power in the federal executive branch.

Andrew has had an extensive career in media—having appeared on television programs around the world. From 2017 to 2021, he hosted a highly-rated weekly program on WBAL NewsRadio 1090 in Baltimore (as well as serving as their principal fill-in host from 2011 until 2021), and has filled in for both nationally-syndicated and satellite radio programs. He also created and hosted several different podcasts—currently hosting Andrew and Jerry Save The World, with long-time colleague, Jerry Rogers.

He holds a Master’s Degree in Public Administration from Troy University and his degree from William & Mary is in International Relations.

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Guest Essayist: Scot Faulkner
Carpenter's Hall In Old City Philadelphia, Pennsylvania

“New England town meetings have proved themselves the wisest invention ever devised by the wit of man for the perfect exercise of self-government and for its preservation.” – Thomas Jefferson, 1816

“Local assemblies of citizens constitute the strength of free nations. Town-meetings are to liberty what primary schools are to science; they bring it within the people’s reach, they teach men how to use and how to enjoy it. A nation may establish a system of free government, but without the spirit of municipal institutions it cannot have the spirit of liberty.” – Alexis de Tocqueville, 1835

The concept of people openly gathering to discuss matters of public interest was developed among the ancient Greek city states in the 6th Century B.C.  It became known as “Athenian Democracy” under the leadership of Pericles (461-429 B.C.) during Athens’ “Golden Age.” Participation was open to all adult free male citizens.

In actions that would be repeated throughout history, Athenian public meetings were suppressed to centralize government power. This occurred in 322 B.C. by the rulers of the Macedonian Empire, first Philip II and then his son, Alexander “the Great.”

Freedom of assembly vanished during the Roman Empire and the feudal states. People could still petition the chief, warlord, or king for grievances, but local democracy was lost.

Iceland rekindled community-based democracy in 930 A.D.

The Althing (Norse for “assembly field”) was an open area (near present day Reykjavik) reserved for the annual gathering to discuss and decide issues facing the community. The presiding official, Lögsögumaður (Norse for “Law Speaker”), stood on a central rock outcropping known as the Lögberg (Norse for “Law Rock”).  He established the procedures for the Althing and declared decisions after open discussion and voting. All free men had the right to attend and participate.

The Althing lost its authority when Iceland was annexed by Norway in 1262.

In 1231, the freedom of assembly, and early federalism, arose among the various independent regions (Cantons) in Switzerland. The Landsgemeinde (German for “cantonal assembly) was established as a system of direct democracy, open voting, and majority rule among the communitas hominum (Latin for “the community of men”). This terminology was to emphasize that it was an assembly of all citizens, not just the elite.

Citizens of the Swiss Cantons fiercely defended their assemblies. In 1499, they defeated the forces of Emperor Maximillian I, the Holy Roman Emperor, at the battle of Dornach. They retain their system to this day.

The practice of holding town meetings in Colonial America developed from 17th Century English “vestry” meetings. These meetings allowed parishioners to discuss and decide issues relating to their local parish. These became integral to New England communities in the mid to late 1600s. Their agendas ranged beyond church governance to community matters.

In 1691, the Colonial Parliament (General Court) of the Commonwealth of Massachusetts passed a Charter that declared that final authority on bylaws rested with town meetings. In 1694, the Massachusetts General Court granted town meetings the authority to appoint assessors. In 1715 it granted town meetings the right to elect their own presiding officers (moderators) instead of relying on outside appointees.

Colonial meeting houses remain places of reverence in small towns throughout New England.

It is not surprising that eradicating town meetings, and restricting the right to free assembly, were key elements in Britain’s suppression of America’s Independence movement in the early 1770s.

Lord North, the British Prime Minister (1770-1790), instituted harsh measures to suppress dissent and disrupt the culture of self-government, which he viewed as the root cause of the chaos. On May 2, 1774, North declared Massachusetts was “in a distempered state of disturbance and opposition to the laws of the mother country.”

On May 20, 1774, the British Parliament passed the Massachusetts Government Act, which nullified the Massachusetts Charter of 1691. It abolished local town meetings because, “a great abuse has been made of the power of calling them, and the inhabitants have, contrary to the design of their institution, been used to treat upon matters of the most general concerns, and to pass dangerous and unwarrantable resolves.” Ongoing local meetings were replaced by annual meetings only called with the Colonial Governor’s permission, or not at all.

A series of five punitive acts were passed by Parliament intended to restrict public discourse and punish opponents. It was England’s hope the “Intolerable Acts” would intimidate rebellious Colonists into submission. The “Acts” ignited a firestorm of outrage throughout Colonial America. More importantly, it generated a unity of purpose and inspired a willingness for collective action among leaders in the previously fragmented American colonies.

In a bold “illegal” act to assert its right to free assembly, the First Continental Congress met in the Carpenters Hall in Philadelphia from September 5 to October 26, 1774. Twelve of the thirteen colonies (Georgia opted out) were represented. They issued the “Declaration of Rights and Grievances,” the first unified protest of Britain’s anti-colonial actions.

The British Crown’s assault on the right to free assembly was among the top Grievances listed in the Declaration of Independence less than two years later.

Scot Faulkner is Vice President of the George Washington Institute of Living Ethics at Shepherd University. He was the Chief Administrative Officer of the U.S. House of Representatives. Earlier, he served on the White House staff. Faulkner provides political commentary for ABC News Australia, Newsmax, and CitizenOversight. He earned a Master’s in Public Administration from American University, and a BA in Government & History from Lawrence University, with studies in comparative government at the London School of Economics and Georgetown University.

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Guest Essayist: Patrick Garry

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

Whereas Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as it was in his Almighty power to do;…that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical;…and finally, that truth is great and will prevail if left to herself; that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless by human interposition disarmed of her natural weapons, free argument and debate, errors ceasing to be dangerous when it is permitted freely to contradict them:…Be it enacted by the General Assembly, That no man shall be compelled to frequent or support any religious worship, place, or Ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief;” – Thomas Jefferson, Virginia Statute for Religious Freedom, January 16, 1786.

Freedom of religion has been a foundational belief ever since America’s colonial beginnings in the seventeenth century. Most of the colonies were religiously inspired enterprises, and the early laws and charters of the colonies reflected those religious beliefs.

The European settlement of America owed much to the desire of the new settlers to escape the religious oppression of their old country. They braved the long, treacherous ocean journey to come to an unknown land filled with unknown dangers, all for the sake of finding the freedom to practice their religion.

A belief in freedom of religion stems from the conviction that religion reflected a higher source of authority than do civil governments; therefore, those governments should not coerce individuals from following their religious beliefs, especially when those beliefs do not threaten the state or pose harm to any other individual.

England, an originating country for many early settlers, possessed a state established religion—the Church of England. The government both supported this religion, with tax revenues, and regulated its theological practices. This meant that individuals who did not adhere to the tenets of the Church of England and who did not wish to belong to that religion were nonetheless forced to support it. Moreover, religious dissidents were often oppressed and discriminated against in various ways. It was this oppressive environment from which many American settlers wished to escape.

Once in America, the settlers initially formed their colonies around the single religion of their belief. However, as settlement increased and the colonies became more diverse in their population, the colonies in turn became more diverse in their religious identities, with the result that the American colonies acquired a practice of religious tolerance unknown in Europe.

This tolerance continued after America achieved its independence and formed a constitutional republic. The very first freedom enshrined in the First Amendment of the Bill of Rights guarantees individuals the right to freely exercise their religious beliefs. To further protect religious freedom, the First Amendment also prohibits Congress from establishing a state-run religion, as England had done with the Church of England.

Over the years, courts have grappled with the application of these religious liberty provisions in the First Amendment. The courts have ruled that the Free Exercise Clause prohibits government from targeting religion for selective burdens or discriminating against religious believers. However, because courts have not wanted to adjudicate all the areas in which religious beliefs might conflict with secular laws, the courts have held that neutral and generally applicable laws that incidentally burden religion are not unconstitutional. This holding has left religious believers vulnerable on a number of fronts, and so Congress in 1993 by an overwhelming margin passed the Religious Freedom Restoration Act, which sought to strengthen legal protections for religious liberty. Unfortunately, during the thirty years since passage of that law, the commitment to religious liberty on behalf of many political and governmental leaders appears to have waned.

With respect to the Establishment Clause of the First Amendment, courts have been even more confused and divided. Whereas some judges believe that the Establishment Clause was intended as another means by which to protect religious liberty, other judges have seen the Clause as a tool by which to prohibit any interaction between government and religion, thereby preventing religious institutions from receiving any government benefits or recognitions that all other social institutions are entitled to receive. This latter position rests on the argument that any government benefit given to a religious organization, regardless of whether that benefit has anything to do with religious beliefs, amounts to an unconstitutional establishment of religion. Essentially, this argument equates a Christmas display of a nativity scene in a public park with the tax-supported Church of England.

The judicial dispute on the Establishment Clause has come down to a debate over whether the Clause was intended to protect religious liberty or the secular identity of society. Recently, the U.S. Supreme Court has greatly clarified the nature and purpose of the Establishment Clause. Several years ago, it held that a cross monument constructed by private parties to honor military veterans, but now standing on public property, did not rise to the level of an unconstitutional establishment of religion. And in 2022, the Court held that a public school district did not violate the Establishment Clause by not forcibly prohibiting an assistant football coach from voluntarily saying a private prayer at mid-field after the conclusion of a game.

Opinion polls and political agendas suggest that Americans may not value religious liberty in the same manner as eighteenth-century Americans did. But the constitutional Framers foresaw that religious liberty should not be left up to the dictates of political opinion. The Framers so valued religious liberty that they placed it as the first liberty protected by the Bill of Rights.  And unlike contemporary critics who see religion as divisive, the Framers valued religion for contributing to the civic virtue and welfare of society.

For the constitutional Framers, freedom of religion was necessary not just to protect what was considered the most important individual liberty, but to protect the vitality and thriving of religious beliefs and institutions that in turn did much to strengthen society. Through religion, citizens learned the values of public service, honesty, and the rule of law. Religious belief combatted the vices of selfishness and greed and helped strengthen the virtues of self-sacrifice and self-restraint, which were seen as necessary traits for a stable nation.

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

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Guest Essayist: Joerg Knipprath

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

Alexander Hamilton responded in numerous essays in The Federalist to the charges that Congress might impose excessive taxation. Among his efforts to calm the torrents of dissent was essay No. 21, where he opined that imposts, excises, and other duties on articles of consumption were preferable to other types of taxes. Consumption taxes were unlikely to be excessive, as they had a built-in safety valve. The higher the tax, the less of the article would be consumed, which would result in less revenue collected. “This forms a complete barrier against any material oppression of the citizens, by taxes of this class, and is itself a natural limitation of the power of imposing them.”

As a supporter of the wealthy merchant class, Hamilton might have been supportive of consumption taxes for another reason. In England as well as North America, the tendency was for legislative majorities to impose most taxes on other than their own class. As the historian Forrest McDonald describes the matter of taxes as “gifts” to the government in his book Novus Ordo Seclorum, “When deciding whether to give away one’s own property or somebody else’s, humankind—being imperfect—has a disposition to give away somebody else’s. Hence, for several centuries, the landed gentry in the House of Commons elected to have as much of the tax burden as possible fall either upon their tenants or upon gentlemen of trade. When the latter gained influence and power proportionate to their wealth, this trend was altered; but the costs of government rose astronomically during the eighteenth century, and country and city gentlemen tended to meet these costs by multiplying the kinds and amounts of taxes upon consumer necessities. They volunteered as many of the ‘gifts’ as possible from the unrepresented poor.”

In the American colonies, according to McDonald, legislatures were mostly controlled by the landed gentry, elected by the broad proportion of the adult male population which owned sufficient land to meet the property qualifications for voting. “The American colonists developed an aversion to taxation for which they were to become celebrated. What was less celebrated, they tended to place the main burden of taxation, insofar as was possible, on merchants and on the well-to-do. The euphemism for this practice was requiring the most taxes from those who were best able to pay; again the reality was requiring somebody else to make the gift.” James Madison, in his 1792 essay, “Property,” was making that same point when he wrote, “A just security to property is not afforded by that government under which unequal taxes oppress one species of property and reward another species: where arbitrary taxes invade the domestic sanctuaries of the rich, and excessive taxes grind the faces of the poor.” Those attributes of taxation remained, although mainly in the form of income taxes, which grind the middle and upper middle class.

Thomas Jefferson, on the other hand, rather predictably supported taxes on merchants and manufacturers. In April of 1811, in a letter to General Thaddeus Kosciusco, Jefferson wrote of his ideas about restraining the tendency for manufacturing to concentrate wealth and encourage corruption, dependence, and servility among the population. “…. [W]e shall soon see the final extinction of our national debt, and liberation of our revenues for the defence and improvement of our country. These revenues will be levied entirely on the rich, the business of household manufacture being now so established that the farmer and laborer clothe themselves entirely. The rich alone use imported articles, and on these alone the whole taxes of the General Government are levied. The poor man who uses nothing but what is made in his own farm or family, or within his own country, pays not a farthing of tax to the general government, but on his salt; and should we go into that manufacture also, as is probable, he will pay nothing. Our revenues liberated by the discharge of the public debt, and its surplus applied to canals, roads, schools, etc….” Jefferson did not take into account the imposition of tariffs on imported goods, which increased the influence and wealth of domestic manufacturers at the expense of the landed yeomanry, raised the prices of domestic goods, and caused frequent sectional conflicts between the South and West on the one hand, and the Northeast on the other.

Other than proceeds from the sale of western lands, the most common source of revenue for the early United States was import duties. Those were generally acceptable during the first several decades, because they involved voluntary purchases and were often seen, as Jefferson’s remarks show, as luxury taxes paid by the wealthy. Attempts to tax the fruits of labor, such as the Whiskey Tax of 1791, precipitated significant political opposition and a drawn-out period of unrest from 1791 to 1794. There were incidents of violence against federal tax collectors and the property of federal officials. That unrest, dubbed the Whiskey Rebellion, ended only after a show of military force by federalized militia, the arrest and trial of a handful of participants, and, eventually, the repeal of the tax.

A later tax on labor, the 1894 federal peacetime income tax, was struck down as unconstitutional by the Supreme Court in 1895 in Pollock v. Farmers’ Loan and Trust Co. It took another couple of decades and a constitutional amendment before a one percent tax on income above $3000, affecting only about three percent of the population of the United States, was enacted. Since then, the federal government has relied primarily on taxes on production and labor, such as excise taxes on products and income taxes, rather than on import duties and tariffs.

Another threat to the rights in property was expropriation and redistribution of land. Many Revolutionary War era state legislatures found it impossible to resist the lure of seizing property owned by British subjects and American Loyalists and reselling it to American Patriots, either settlers or speculators. But, in general, there probably was nothing that more viscerally frightened and repelled most Americans than redistribution of property. As noted earlier, many Americans reacted in shock to the alleged goal of Daniel Shays and his followers to force a redistribution of land. There was no less opposition to a peaceful redistribution of land through what were called “agrarian laws.” Hamilton, Washington, Adams, Madison, Jefferson, and John Taylor of Caroline County might view agrarian republicanism with lesser or greater degree of favor, but all rejected such interference with a person’s rights in property.

Even Taylor, the foremost American theorist and defender of agrarian republicanism, declared that redistributions of property were grotesque infringements of liberty. He noted that government was instituted primarily to protect private property, the “acquisitions of private people, which no law can transfer to other private people.” On a curious note, Taylor assured his readers that, as a practical matter, it would be futile to support such laws, because the political system was rigged against them: “My fellow laborers, mechanical or agricultural, let us never be deluded into an opinion, that a distribution of wealth by the government or by law, will advance our interest.” The mechanics and farmers may constitute the majority of nations, but “a minority administers governments and legislates.”

The judiciary also placed themselves firmly in categorical opposition to such laws, using both specific constitutional restrictions and more abstract political theory. A clear statement to that effect came from Justice Samuel Chase in 1798 in Calder v. Bull. In language similar to that of Taylor, Chase insisted that “a law that takes property from A. and gives it to B.” would “take away that security for personal liberty or private property for the protection whereof the government was established” and would be “contrary to the great first principles of the social compact.” Presumably, even an exercise of eminent domain through which government compensated the property owner for the land seized was unconstitutional if the land was transferred to another private person. For better or worse, that strictness was not always observed as states condemned land for private canal and turnpike operations. Not unexpectedly, given the breeziness with which rights in property are infringed today, the Supreme Court no longer sees forced transfers of property from one person to another as fundamentally objectionable, as long as the original owner is compensated, and the transfer achieves some vague public purpose.

In Vanhorne’s Lessee v. Dorrance, a federal circuit court case in 1795, Justice William Paterson, a leading figure at the Philadelphia Convention, struck down as an unconstitutional taking of property a Pennsylvania law that vested title to tracts of land after the land had previously been granted to another claimant. Using both the Constitution’s text and natural law reasoning Chief Justice John Marshall and Justice William Johnson wrote opinions in Fletcher v. Peck in 1810 striking down a similar Georgia law as a violation of vested rights in property. Johnson, a Jeffersonian republican, went so far as to announce that such laws went against a general principle which binds all legislatures, “the reason and nature of things; a principle which will impose laws even on the deity.” Setting aside theological disputation about the last part of that assertion, Johnson’s opinion recognized the fundamental nature of rights in property.

The final threat to property and the fruits of one’s labor in the early United States came in the form of laws which interfered with duly made contracts. State legislatures in the 1780s, responding to depressed economic conditions, repeatedly meddled in debtor-creditor relations with a plethora of laws designed to assist debtors. Most notorious were state laws making depreciated paper currency legal tender for the payment of debts. Neither state constitutional guarantees nor the frail central government created by Articles of Confederation proved able to halt these legislative abuses. State courts were simply unable to uphold the rights of creditors in the face of public pressure. “Americans,” Forrest McDonald concluded, “were not as secure in their property rights between 1776 and 1787 as they had been during the Colonial period.”

When discussing the destructive influence of political factions in essay No. 10 of The Federalist, Madison described the types of pernicious laws that have resulted from factions gaining majority control of legislatures. He was obviously referring to the laws enacted through the tumultuous factional politics of the state governments of his time: “…a rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than any particular member of it, in the same proportion as such a malady is more likely to taint a particular county or district, than an entire State.” Such laws, too, interfered with the legitimate expectations of people to have the fruits of their labor protected, because funds lent in good faith could be repaid in worthless scrip and contracts for goods and services performed in good faith could be undone on legislative whim. The Constitution sought to remedy this problem by prohibiting state laws which impaired the obligations of contract and frustrated rights vested under such contracts. Unfortunately, over the past century, the Supreme Court has effectively neutered that clause.

Justice Stephen Field, the most influential American judge of the latter part of the 19th century, put it succinctly in 1890 in an address on the occasion of the centenary of the Supreme Court: “It should never be forgotten that protection to property and persons cannot be separated. Where property is insecure the rights of persons are unsafe. Protection to the one goes with protection to the other; and there can be neither prosperity nor progress where either is uncertain.”

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

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Guest Essayist: Joerg Knipprath

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

“A just security to property is not afforded by that government, under which unequal taxes oppress one species of property and reward another species: where arbitrary taxes invade the domestic sanctuaries of the rich, and excessive taxes grind the faces of the poor; where the keenness and competitions of want are deemed an insufficient spur to labor, and taxes are again applied, by an unfeeling policy, as another spur; in violation of that sacred property, which Heaven, in decreeing man to earn his bread by the sweat of his brow, kindly reserved to him, in the small repose that could be spared from the supply of his necessities.” – Property, an essay by James Madison, March 29, 1792.

One of the fundamental philosophical tenets of American republicanism in the late 18th and the 19th century was the inviolability of rights in property. Influenced by the writings of John Locke on political theory, the definition of property extended not only to material property, but to the status of ownership over oneself. One had natural rights in one’s person. The exercise of one such right, labor, would lead to the acquisition of an estate in material property. As James Madison explained in essay No. 10 of The Federalist, there is a “diversity in the faculties of men, from which the rights of property originate…. The protection of these faculties is the first object of government.” It is these inherent characteristics of mind, body, and talents that government must protect, not handicap. “From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results.”

Property in both senses, metaphysical and material, was the source of a person’s liberty. In the metaphysical sense, one’s property in oneself meant that one was not by nature the slave of another, and that, therefore, as a free person, one had certain rights of which one could not be deprived. In the material sense, a sufficient portion of property, especially of land, provided the independence that was necessary for the effective exercise of one’s liberty. Further, that independence from others’ control must exist broadly within the community to supply the civic virtue needed for republican self-government. Property as so understood was at the basis of human flourishing for the individual and the community. When Thomas Jefferson changed the last aspect of Locke’s formulation of natural rights from property to the pursuit of happiness in the Declaration of Independence, he did not change the fundamental point that property was critical to human happiness understood as individual flourishing within a political commonwealth governed by consent of its people.

Locke had posited that one’s labor, mixed with the land (or with other raw materials in the case of non-agricultural pursuits), created private property out of what God had given humans in common in nature. An estate, therefore, was a fruit of one’s labor, and government action to take or diminish one’s estate or to commandeer one’s labor was a violation of fundamental rights to property and liberty. A century after Locke, Adam Smith made a similar point in 1776 in Wealth of Nations. “The property which every man has in his own labor,” Smith wrote, “as it is the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of the poor man lies in the strength and dexterity of his own hands; and to hinder him from employing this strength and dexterity in what manner he thinks proper, without injury to his neighbor, is a plain violation of this most sacred property. It is a manifest encroachment upon the just liberty both of the workman and of those who might be disposed to employ him. As it hinders the one from working at what he thinks proper, so it hinders the others from employing whom they think proper.”

Writing yet another century later, in 1872 in The Slaughterhouse Cases, the highly-respected Justice Joseph Bradley observed in a dissent from a Supreme Court decision to uphold a slaughterhouse monopoly, “Rights to life, liberty, and the pursuit of happiness are equivalent to the rights of life, liberty, and property. These are the fundamental rights which can only be taken away by due process of law, and which can only be interfered with, or the enjoyment of which can only be modified, by lawful regulations necessary or proper for the mutual good of all; and these rights, I contend, belong to the citizens of every free government.

“For the preservation, exercise, and enjoyment of these rights the individual citizen, as a necessity, must be left free to adopt such calling, profession, or trade as may seem to him most conducive to that end. Without this right, he cannot be a freeman. This right to choose one’s calling is an essential part of that liberty which it is the object of government to protect, and a calling, when chosen, is a man’s property and right. Liberty and property are not protected where these rights are arbitrarily assailed.”

The right to engage in labor of one’s choosing, and the right to retain the fruits thereof in the form of property, are central to one’s liberty, yet experience has shown that governments have threatened these rights repeatedly. Taxation, redistribution of property, especially of land, and abolition of debts have been the most potent threats to security in property. Taxes, notably those on land or its produce, were particularly suspect because they could deprive people of their most basic means of subsistence and status, while benefiting some favored politically powerful individual or group.

Sounding much like Plato in The Republic about the defects of democracy, John Adams identified the danger in his Defence of the Constitutions of Government of the United States. Although his posited facts appear odd considering his assurances elsewhere about the widespread distribution of property in New England, he argued, “[A] great majority of every nation is wholly destitute of property, except a small quantity of clothes, and a few trifles of other movables. Would Mr. Nedham be responsible that, if all were to be decided by a vote of the majority, the eight or nine millions who have no property, would not think of usurping over the rights of the one or two millions who have? Property is surely a right of mankind as really as liberty. Perhaps, at first, prejudice, habit, shame or fear, principle or religion, would restrain the poor from attacking the rich, and the idle from usurping on the industrious; but the time would not be long before courage and enterprise would come, and pretexts be invented by degrees, to countenance the majority in dividing all the property among them, or at least, in sharing it equally with its present possessors. Debts would be abolished first; taxes laid heavy on the rich, and not at all on the others; and at last a downright equal division of every thing be demanded, and voted. What would be the consequence of this? The idle, the vicious, the intemperate, would rush into the utmost extravagance of debauchery, sell and spend all their share, and then demand a new division of those who purchased from them. The moment the idea is admitted into society, that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. If ‘Thou shalt not covet,’ and ‘Thou shalt not steal,’ were not commandments of Heaven, they must be made inviolable precepts in every society, before it can be civilized or made free.”

The long struggles over taxation between king and barons in Magna Charta, and subsequently between king and Parliament, had ended with Parliament’s power over the purse confirmed in the settlement offering the throne to William and Mary after the Glorious Revolution of 1688. Taxes were said to be a “gift” of property from the people to the king. Therefore, the king could not simply impose taxes, any more than a thief could help himself to one’s property or command one’s labor. However, under the class-based theory of virtual representation which held that all Englishmen other than the high nobility were represented in the House of Commons, that body had the authority to vote in favor of granting the king such a gift. The American colonists had a different theory of representative government, one based on geographic communities whose residents selected “their” representatives. As such, they rejected taxes levied by vote of the House of Commons in which, the colonials averred, they were not represented. That basic difference over the nature of representation led to the revolutionary slogan “no taxation without representation.” But even domestically, contests between royal governors and colonial legislatures over taxation were endemic.

Americans’ distrust of taxation continued after independence. The power to tax was still the power to destroy, even if it was exercised by a legislative majority elected by themselves. The problem existed at the state level and, if anything, was considered even more of a threat at the national level. The Articles of Confederation tried to strike a balance between taxes and liberty by giving Congress only the power to levy requisitions on the states, not to impose taxes directly on people. When the Constitution of 1787 gave Congress a broad taxing power, it produced significant resistance. One concern was that the Congress might impose a level of taxation that destroyed the liberty of persons by impoverishing them. Another was that the power threatened the vitality of the states.

The example of Shays’s Rebellion in Massachusetts in 1786 provided a concrete lesson about the former concern. The state legislature, acting on the prompting of Governor John Hancock, had voted expensive programs of repaying the state’s war debts at face value, even though the state’s notes had depreciated significantly in value. This benefited wealthy speculators in those notes. It also placed a severe burden on the state’s finances. However, Hancock refused to collect the taxes the legislature had voted to cover the costs. When he left office, the state’s treasury was in dire straits, and that politically unpleasant task fell to his successor, James Bowdoin. The taxes heavily burdened farmers in the western part of the state. The resulting discontent produced statements of grievances, interference with court proceedings, and a loosely organized armed force of debtor farmers eventually defeated by a volunteer army recruited in the state’s eastern counties.

Shays’s Rebellion frightened many Americans. They were alarmed by exaggerated accounts of Shays’s “army,” especially the report written to George Washington by Henry Knox, the superintendent of war under the Confederation. Washington believed Knox’s wild claims, including that Shays intended to march south and to seize and redistribute land. A letter from Abigail Adams to Thomas Jefferson noted that some Shaysites called for an equal distribution of property. Another letter, from James Madison to his father, asserted that “an abolition of debts, public and private, and a new division of property are strongly suspected to be in contemplation.” The tumult gave strong impetus to the convening of the constitutional convention in Philadelphia.

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

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Guest Essayist: Patrick M. Garry

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

“Without Freedom of Thought, there can be no such Thing as Wisdom; and no such Thing as publick Liberty, without Freedom of Speech” – Part of an article by Benjamin Franklin, under the pseudonym Silence Dogood, a name he used due to threats against free speech. Franklin wrote it on freedom of speech and of the press; it published in a newspaper: No. 8 on July 9, 1722, The New-England Courant.

The principle of a free press is enshrined in the First Amendment of the United States Constitution. This principle has shaped and characterized American society and political governance from the nation’s earliest beginnings. Americans of every generation have valued a free and independent press, protected from the controlling or censuring arm of government.

This strong American cherishing of a free press has its roots in the colonial period, during the lead-up to the movement for independence from Britain. As the colonists learned, such a movement would not have been successful without a free and vibrant press.

One of the political catalysts of the American Revolution was the effort of the British to subdue the popular press in colonial America. This attempt was twofold. The first was an accelerated use of the law of seditious libel. The second was the Stamp Act, under which a prohibitive tax was placed on the paper used by the presses. This tax threatened to force the inexpensive press out of circulation and thus to suppress colonial discussion of politics.

The Stamp Act passed by Parliament in 1765 proposed a host of unprecedented and, in the American view, unconstitutional burdens. The passage of the Stamp Act hurt printers by threatening an increase in their costs and by jeopardizing their subscription base, since many subscribers refused to even indirectly pay a tax to the Crown.

Following passage of the Act, the colonial newspaper documented the public’s mounting opposition to the Act. Indeed, the outburst of popular resentment against the Act was so great that it led to the start-up of four new newspapers. Printers took an active role in the debate and developed a close alliance with political groups such as the Sons of Liberty. These political groups also founded new newspapers whenever they felt it desirable.

As the Stamp Act became effective, the majority of colonial newspapers became inspired by the wave of public opposition to the Act, and in one manner or another opposed the Act. By the time the Stamp Act was repealed, newspaper printers had acquired a heightened sense of their role in the community. The principle of “liberty of the press” had become a battle cry against the Stamp Act. The campaign against the Stamp Act also increased the opinion role of newspapers. No longer mere transmitters of information, they had become engines of opinion.

The newspapers carried forward the role they had played in the Stamp Act crisis to the protest against the Townshend Acts. Even more so than the Stamp Act, the Townsend Acts sparked an intense battle of opinion waged in the newspapers. This battle was fought between the patriot press and the government press, revealing the degree of public support behind each cause. The spirited campaign fought by the patriot newspapers against the Townshend Acts contributed to the eventual repeal of nearly all of the duties.

During the controversy surrounding the Stamp Act and Townshend Acts, printers were greatly swayed by the opinions of their readers. The more radical the readers, the bolder the printers. The content of colonial newspapers closely mirrored the particular issues that were important to the local constituencies. The press in effect became intertwined with local partisan battles, and newspapers often started up just as a political issue rose in importance.

During the interim period between the Townshend Acts and the Revolutionary War, newspapers continued to exist and to flourish, keeping open the channels of public discussion, which would become valuable in the crucial years ahead.

In 1773 when Parliament passed the Tea Act, a roar of protest once more emerged from the newspapers. The most aggressive editors were those who had participated in the protests in the 1760s. Again, the public mood thrusted the newspapers into the midst of the protest.

The American press played a major role in opposing British rule. The distinct gain in prestige made by the press during the revolutionary period began with the Stamp Act, the repeal of which was recognized as the result of a united colonial opposition made possible by the important role played by the newspapers of the day.

In addition to its political consequences, the newspaper offensive unleashed by the Stamp Act made several permanent impacts on American journalism. First, the influence of the press was enormously enhanced, instilling a newspaper-reading habit that would characterize many succeeding generations. In 1800, for instance, a magazine declared the United States to have become a nation of newspaper readers, and foreign observers noted in comparison with Europe the prevalence of newspapers in America.

After achieving independence from Britain and setting out to form a new constitutional republic in the United States, the Framers knew and treasured the role that a free press had played in shaping a new nation. This principle would receive not only constitutional protection in the Bill of Rights but would also command widespread popular support throughout America for centuries to come.

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

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Guest Essayist: Stephen Tootle

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

That is not a just government, nor is property secure under it, where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties, and free choice of their occupations, which not only constitute their property in the general sense of the word; but are the means of acquiring property strictly so called.” – Property, an essay by James Madison, March 29, 1792

Americans are exceedingly fortunate in some regards. The founding generation that theorized about creating a government did not evaporate into thin air or disappear into classrooms after publishing a few papers or demonstrating for change. Instead, most of them engaged in practical politics. They were around to find the limits and implications of their theories. James Madison, as the primary author of the United States Constitution could have retired and lived the life of a hermit and still made it into our history books. He did not do that.

By the Spring of 1792 Madison was a congressman from Virginia, engaged in the messy horse-trading of practical politics. He was also actively engaged in describing how the underlying principles of our government interacted with the real world. He watched the beginnings of the ideological and partisan divisions between people who shared all of the same fundamental principles. He saw regions compete with regions and nations serve as both positive and negative examples for America.  In that spirit, he wrote an essay on the subject of property published March 29, 1792.

Madison conceived of property rights in a way that was much broader, deeper, and more expansive than the mere protection of wealth or land. Understanding his conception is central to understanding the very nature of the American government. Unlike some later thinkers, Madison and the Founders did not consider the rights of property to be a “thing” that was separate, apart, held only socially, or distinct from all other rights of an individual. While that might seem like an inconsequential bit of political theory, the practical implications of this formulation were enormous and foundational to the idea that human beings could live prosperous lives at peace with one another.

If property rights were natural to all other rights, things like free market trade, industry, innovation, and competition were the consequences of the deeper foundational principles of the Founders—not their purpose.  To put it another way, Madison and the Founders did not envision liberty in order to justify the free market or property rights; Madison merely recognized the implications of property rights in the real world. To pretend that our system of government could function without the protection of individual property rights would have seemed oxymoronic and absurd to the framers of our political institutions.

In the American system and as outlined by Madison, the same set of individual rights have both a private and public function. He understood that every right an individual holds has some manifestation in the physical world. Understanding that simple fact led him to a conclusion that was inescapable, profound, and should be obvious: Every right lived and breathed in its relationship to the rights of property. No just government could sever property rights from any of the natural rights held by any individual. This was not enough.

Because individuals exercise the rights of property in a social context, they depend on a reciprocal, peaceful recognition within a political system. A just system protected the rights of every individual. As Madison wrote, property, “…embraces every thing to which a many may attach a value and have a right, and which leaves to every one else the like advantage.[1] Any right you have and anything you find valuable is defined as property. Because everyone has rights, everyone has property worthy of protection.

Property then, was more than simply money, wealth, land, or objects. Madison understood that one could not claim to have free opinions without being free from violence when communicating those ideas. One could not freely express religious belief and practice when personal safety and property were threatened. The freedom to choose where to work, what to work for, and what to do with the product of one’s work were inseparable. All were rights. All were inseparable from property.

To Madison, any pretended choice between the rights of property and any other right was a false dichotomy. The rights of property were inextricably linked to every other right and should be recognized and balanced in a peaceful constitutional order. As he concluded, “…a man is said to have a right to his property, he may be equally said to have a property in his rights.”[2] Protecting property rights – in this expansive understanding of property – was the very purpose of just government. There could be no other definition of justice beyond every individual peacefully having what they deserved to have while secure in their peaceful possession of all liberties. Because of this, Madison believed government ought only to interfere with property rights sparingly.

Any government that violated religious liberty with tests, taxes, or an imposed hierarchy would not be just. Any government that failed to enforce contract law, engaged in arbitrary property seizures, or allowed one class of people to oppress another would be violating the rights of conscience, which Madison called “the most sacred of all property.”[3]  But he had a special ire for the regulated markets of the British mercantilist system and worried that America might follow their example.

Government itself could easily fall out of balance by imposing, “restrictions, exemptions, and monopolies” that would interfere with property rights.[4] Property was not secure when government encouraged one form of work or manufacturing over another. Such encouragement would be similar to an unjust tax designed to reward friends and punish enemies. He deplored the use of taxation as social policy and recognized the temptation to, “invade the domestic sanctuaries of the rich,” or taxation that would, “grind the faces of the poor.”[5] He understood that human beings always sought advantages for themselves and would try to use taxation to gain those advantages.

Leaders needed to be scrupulous in dealing with all forms of property–including the property that individuals hold in ambitions, religion, opinions, and labors. None should be taken from an owner without full compensation. If the United States wanted to maintain its legitimacy and serve as an example to the world, its government had to “equally respect the rights of property, and the property in rights….”[6] There could be no substitute for this formulation.

Human beings are infinitely complex. Part of Madison’s genius was his understanding of the practical application of rights based on how imperfect human beings lived in an imperfect world. Instead of theorizing about how to turn human beings into angels, Madison understood the complexity of human experiences and the relationship between the internal and the external world. He knew that politics can do many things, but it cannot do everything.

Of course Madison and the Founders believed in the principles of free market trade, industry, innovation, and competition. Every competition requires the peaceful execution of its rules or it could not be said to be a competition. The violent suppression of innovation or use of violence in directing labor was anathema to anything resembling a free life. If all of our rights have a manifestation in property, individuals must be able to buy, sell, withhold, cherish, and labor for property – broadly understood – as they see fit. To say that our Founders believed in a “free market” is to state nothing so plain as the Founders believed that people could live peaceful lives. One could not protect any fundamental rights without protecting the “property in rights.”[7] There is no other way.

Stephen Tootle is a Professor of History at the College of the Sequoias in Visalia, California and Honored Visiting Graduate Faculty in History and Government at Ashland University in Ashland, Ohio. His writings have appeared in National Review, Presidential Studies Quarterly, The Claremont Review of Books, The Journal of the Gilded Age and Progressive Era, and other publications. He gives talks on politics and political history for the Ashbrook Center and the Bill of Rights Institute and is the co-host of The Paper Trail Podcast, a weekly public affairs podcast published by the Sun-Gazette.

[1] https://teachingamericanhistory.org/document/property/

[2] Ibid.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] Ibid.

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Guest Essayist: Tony Williams

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

In the early 1790s, Representative James Madison was a skilled politician, newspaper polemicist, and member of the Jeffersonian Republican Party. In all of these roles, Madison demonstrated increasing concerns about the centralizing tendencies occurring in the first of the American presidencies which began with the Washington administration. He was especially concerned about Secretary of Treasury Alexander Hamilton’s financial policies regarding the public credit and a national bank.

In late 1791 and throughout 1792, Madison penned a series of eighteen newspaper essays on various topics of government, law, and economics. He wrote them to reflect on various topics related to self-government, but his main purpose was to expose how Federalist Party policies stretched the boundaries of the United States Constitution by expanding the power of the national government.

On March 29, 1792, Madison published one of the essays entitled “Property.” In the essay, he leaned in on the principles of natural rights, the purposes of government, and limited government. These principles were important to Madison because they protected individual liberty. His ideas were heavily influenced by the ideas of Enlightenment philosopher, John Locke.

In his Second Treatise of Government (1689), Locke wrote that all humans  are in a state of nature, free and equal in their natural rights. For Locke, property was the most important natural right, and it included possessions but also most significantly a property in one’s person, labor, and rights. He wrote, “Yet every man has a property in his own person…The labour of his body, and the work of his hands.”

Government was established by common consent for the purpose of protecting a person’s property rights. He wrote, “The great and chief end, therefore, of men’s uniting into commonwealths, and putting themselves under government, is the preservation of their property.”

These Lockean ideas fundamentally shaped the Declaration of Independence in 1776. The Declaration lays down natural rights as the basis of self-government. It asserts that “all men are created equal,” and that they were “endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.” The Declaration also states the fundamental purpose of government is to protect rights. “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”

In 1792, these ideas continued to shape Madison’s thinking about American constitutionalism when he penned his “Property” essay. Locke clearly helped to influence Madison’s understanding of property as he argued that it included physical property, a person’s opinions, the right to have safety of one’s person, and an individual’s religious liberty. In fact, he described religious conscience as the “most sacred of all property.”

Importantly, while Madison had all of these conceptions of property, he thought that individuals had an inalienable property in their rights. “In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights,” he wrote.

Like Locke and the Declaration of Independence, Madison believes that government exists to protect inalienable rights especially property. He explains that a just government is one that protects rights, and, conversely, an unjust government violates those rights or fails to protect them adequately. Therefore, he attacks arbitrary government, which is the definition of tyranny. He writes,

Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own…That is not a just government, nor is property secure under it, where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties.

Madison continued to oppose many of the policies of the Washington and Adams administrations. He served as vice-president under Thomas Jefferson and helped to usher in the “Revolution of 1800,” in which they believed they restored republican limitations on the national government. Madison was elected president in 1808 and served two terms. While his administration reflected his republican ideals from his “Property” essay, he did eventually change his mind on certain centralizing policies he opposed in the early 1790s including signing the Second National Bank into law in 1816. Still, James Madison believed in a natural rights republic and constitutionally limited government throughout his entire life.

The Founders applied the principle of limited government in the Constitution and early republic. The national government had no authority to tax without consent or to take property without consent or compensation. The First Amendment prevented a national establishment of religion and protected religious liberty. George Washington set the great example of limited republican government when resigned from the presidency after two terms.

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

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Guest Essayist: James C. Clinger

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

Contracts are the promises that are made individually or collectively that are presumed to be legally enforceable. They are normally the product of negotiation and deliberation among parties regarding the mutual obligations that they accept voluntarily.[1] Not every agreement is a contract, and not every promise is legally enforceable, but contracts have become an essential means by which individuals can organize themselves and carry out personal and professional interactions, particularly with persons or entities with whom they have no personal or familial connection. The ability to make contracts, and the capacity and willingness for a neutral arbiter to guarantee that contracts will be enforced, became one of the critical developments that made long-term and long distance trade relations possible.[2] Contracts also became a building block of the modern corporation, which is often described today as a “nexus of contracts.”[3]

The freedom to make contracts and the confidence that contracts will be enforced cannot be taken for granted. Prior to the United States Constitutional Convention of 1787, many of the original thirteen states were actively undermining the enforcement of contracts among citizens. In most cases, the contracts that were threatened by state actions were concerned with debts. State legislatures enacted a number of laws which prevented creditors from collecting debts in the time frame stipulated in contracts. For this reason, many creditors looked to the federal government to curb state actions which threatened the execution of contracts. Congress, under the Articles of Confederation, provided in the Northwest Ordinance that in that soon to be developed territory stipulated “no law ought ever to be made, or have force in the said territory, that shall in any manner whatever interfere with, or affect private contracts or engagements, bona fide and without fraud previously formed.” [4] Notably the clause pertained only to “private” contracts that were already in existence.

At the Constitutional Convention, a stand-alone contracts clause was debated and ultimately rejected, but the Committee on Style inserted a general form of the clause within a section dealing with limits on state power, which the convention did approve.[5] The final language in Article 1, Section 10, reads as follows: “No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.”[6] The clause is sandwiched between other provisions that limit states’ ability to engage in diplomacy, affect international trade, or carry out monetary policy. There is no language limiting the clause’s application to private contracts, nor is the clause clearly limited to contracts that were “previously formed,” although the courts quickly established that state law could regulate future behavior that might otherwise be the subject of a contract. It should also be noted that the contracts clause does not forbid the federal government from “impairing the obligation of contracts.” In fact, the federal government may modify debt contracts very dramatically through bankruptcy laws, which were authorized explicitly by the bankruptcy clause in Article I, Section 8 of the United States Constitution.

The clause was applied in some early cases of the Supreme Court. In 1810, the Court ruled in Fletcher v. Peck that the state of Georgia could not revoke a previously issued land grant to private parties. This ruling established that the contract clause applied to both public and private contracts.[7] A few years later, the Court more clearly asserted the constitutional protection of contracting in the case of Dartmouth College v. Woodward. In this ruling, the Court held that a charter establishing and organizing a private academic institution could not be fundamentally changed by an enactment of the New Hampshire legislature.[8] This decision was not only significant because it defended the right of private parties to have their contracts respected, but also because it recognized that private associations and incorporated entities could be at least somewhat insulated from state government control.

In later cases, the Court made clear that the right to engage in personal contracts is not absolute. In Ogden v. Saunders, the Court ruled that the states could make laws affecting contracts as long as those laws had prospective effect.[9] Later, in Stone v. Mississippi, the justices ruled that the contract clause did not prevent states from exercising their police powers to protect health and morals.[10] This ruling was echoed in a twentieth century case, Home Building & Loan Association v. Blaisdell, in which the Court expanded that exception to include advancing public welfare through a redistribution of resources.[11] In recent years, some legal scholars have said that the federal Constitution’s contract clause has been eviscerated because the courts have ruled that its applicability is limited by so many public policy related exceptions.[12] Nevertheless, it should be noted that many state constitutions contain contract impairment laws which are still applied, often in legal challenges to legislative changes in public employee pension fund benefits.[13]

The freedom to contract and the expectation that contractual obligations will be enforced has been critical to American economic life since its founding. Courts have long been involved in the settling of contractual disputes, sometimes invoking the contract clause, but more often using common law principles or provisions of the Uniform Commercial Code, which every state has adopted. But the implications of the freedom to contract is not limited to economic matters. Contracts are involved in many forms of association,  including political organizations and civic and religious entities. Without protection for these contracts, these associations could not function effectively.

James C. Clinger, Ph.D., is an emeritus professor of political science at Murray State University. His teaching and research has focused on state and local government, public administration, regulatory policy, and political economy. His forthcoming co-edited book is entitled Local Government Administration in Small Town America.

[1]  Cornell Law School.   Legal Information Institute.  https://www.law.cornell.edu/wex/contract  Accessed August 12, 2023.   On the view that contracts should be seen essentially as promises, see Fried, Charles.   Contract as Promise: A Theory of Contracting Obligation. Cambridge, Mass.: Harvard University Press, 1981.

[2] Wallis, John Joseph.  “Institutions, Organizations, Impersonality, and Interests:  The Dynamics of Institutions.”   Journal of Economic Behavior & Organization 79 (1-2)

[3]  Jensen, Michael C., and William H. Meckling. 1976. “Theory of the Firm: Managerial Behavior, Agency Costs and Ownership Structure.” Journal of Financial Economics 3 (4): 305–60.

[4]  Northwest Ordinance.  Article II, Clause 5.   See also McConnell, Michael W. “Contract Rights and Property Rights: A Case Study in the Relationship between Individual Liberties and Constitutional Structure.” California Law Review 76, no. 2 (1988): 267–95.

[5]  Douglas W. Kmiec and John O. McGinnis, “The Contract Clause: A Return to the Original Understanding, 14 Hastings Const. Law Quarterly 5 (1987): 525-560.

[6]  United States Constitution, Article I, Section 10

[7]  Fletcher v. Peck.  10 US 87 (1810).   See also  Hobson, Charles F. 2017. “The Yazoo Lands Sale Case: Fletcher v. Peck (1810).”      Journal of Supreme Court History 42 (3): 239–55.

[8]  17 US 518. See also O’Kelley, C. R. T. (2021). What Was the Dartmouth College Case Really About? Vanderbilt Law Review, 74(6), 1645–1725.

[9] 25 US 518 (1827).

[10]  101 US 814 (1879).

[11]  290 US 398 (1934).

[12]  Ely, James W., Jr. “Whatever Happened to the Contract Clause?” Charleston Law Review 4 (2010): 371–94.

[13]  Hull, Bradley. 2015. “State Contract Impairment Clauses and the Validity of Chapter 9 Authorization.” Emory Bankruptcy Developments Journal 32 (1): 87–122.

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Guest Essayist: Robert E. Wright

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

“And since a Plentiful Currency will be so great a Cause of advancing this Province in Trade and Riches…I cannot think it the Interest of England to oppose’ us in making as great a Sum of Paper Money here, as we, who are the best Judges of our own Necessities, find convenient. And if I were not sensible that the Gentlemen of Trade in England, to whom we have already parted with our Silver and Gold, are misinformed of our Circumstances, and therefore endeavour to have our Currency stinted to what it now is, I should think the Government at Home had some Reasons for discouraging and impoverishing this Province, which we are not acquainted with…” – Benjamin Franklin, A Modest Enquiry into the Nature and Necessity of Paper Currency, Benjamin Franklin, April 3, 1729.

For over half a century, the colonists living in mainland British North America sought a monetary system like that described by Benjamin Franklin in his 1729 Modest Enquiry into the Nature and Necessity of Paper Currency. In other words, they wanted their own “inside” money composed of paper “bills of credit” (fiat notes like today’s Federal Reserve notes) useful only in local trade and an “outside” money composed of full-bodied gold and silver coins (referred to collectively as specie) useful in international trade.

All the colonies eventually emitted fiat paper bills of credit but only the Middle Colonies of New York, New Jersey, Pennsylvania, Maryland, and Virginia managed to do so without causing massive inflation, which the colonists perceived as depreciation of the bills of credit in terms of the “outside” or “real” money, specie.

As with most things in life, too much of a good thing can lead to bad outcomes. The colonists wanted “inside” money because each unit of it  (confusingly, for us, called “pounds”) they emitted into circulation allowed the same amount of gold or silver to be used to purchase goods abroad. That helped the colony’s economy but only until all the specie had been exported. The effect of issuing more bills of credit after that point was to make each unit less valuable domestically – price inflation or currency depreciation depending on your perspective.

The northernmost and southernmost colonies greatly exceeded that break-even point because they found it easier to finance their many wars against the French, Spanish, and their American Indian allies by printing more inside money than by raising taxes. Double-digit inflation ensued, which injured the interests of creditors, the rich people who lent money. That is because the purchasing power of the depreciated money they were repaid with, even with single-digit interest paid in addition, was less than they expected.

Those rich lenders had the ear of policymakers in London, who in 1764 prohibited the colonists, even those in the Middle Colonies, from emitting any more bills of credit. This may have merely miffed the colonists had the restriction not taken place in the midst of a postwar economic downturn and a period of toughened trade restrictions that made it difficult for the colonists to trade enough with the right partners abroad to maintain sufficient amounts of specie in domestic circulation. Instead of inflation, the colonists suffered from massive deflation.

As a result, foreign and domestic trade decreased markedly, as did real estate prices. Interest rates increased on mortgages, when they could be had at all, because money was in such limited supply. Money matters became so desperate that squirrel scalp bounties began to circulate as cash in Bucks County, Pennsylvania and newspapers published odes to coins that colonists rarely saw in circulation anymore.

By 1765, borrowers began to default and lose all their property at sheriff’s sales. Many found themselves still owing money even after all their assets had been sold at low prices and ended up in debtors’ prison, where some died. The colonists pleaded for relief but instead the “Mother” Country implemented the Stamp Act, which imposed new taxes and threatened to denude the colonists of all their remaining specie.

The colonists successfully protested the Stamp Act but in the process initiated a series of increasingly violent conflicts that ended with the Declaration of Independence and Revolutionary War. The Americans funded much of the war effort with a new inside money called Continentals, issued far too many, and saw them depreciate in value, at first slowly but later essentially to zero. No longer constrained by British trade policies and with help from French infusions, specie again became the predominate form of money in America.

Yet Franklin and younger financially savvy policymakers, like Robert Morris, Thomas Willing, and Alexander Hamilton, knew that inside money could help to stimulate the economy, so long as it did not displace all of the specie once again. So they created new institutions, commercial banks, that issued two forms of inside money, deposits and notes, convertible on demand into a fixed amount of specie.

When the new Constitution was framed, the financiers managed to ban state governments from issuing fiat money but were silent about the new federal government’s power to issue it. For over a century, it did so only during major wars and afterwards withdrew it from circulation via taxes, as the Middle Colonies had done.

Before the Federal Reserve became operational in 1914, most money in America took the form of bearer or “cash” instruments like banknotes and specie coins, supplemented by money of account in the form of bank deposits transferable by check. Deposits could be tracked but the government rarely tried to access private bank records because of strong customs concerning confidentiality. Notes and specie provided anonymity and hence even stronger privacy protections.

From its inception, America defined its dollar in terms of specie, eventually settling, as most other nations did, on gold alone. Dollar denominated banknotes and deposits were not legal tender but convertible into legal tender coins on demand. They circulated because they were more convenient than coins but always could be exchanged for them.

Retail convertibility meant that international trade, not policymakers, determined America’s money supply. Gold flowed in when exports exceeded imports and out when imports outstripped exports. As explained by Scottish Enlightenment thinker David Hume and well understood by policymakers like Hamilton, the gold flows automatically adjusted the domestic money supply and interest rates towards more balanced international trade and long-term price stability.

During the New Deal of the 1930s, however, the nature of money changed dramatically in America, starting a process that culminated in the 1970s with the nation’s monetary system returning to its Revolutionary War roots, or in other words a fiat inside money delinked from specie and of constantly declining value.

Some dispute the Constitutionality of the current monetary regime, which simultaneously greatly diminished the privacy of bank accounts. A planned central bank digital currency (CBDC) threatens to end anonymous cash transactions entirely and wipe away the last legal vestiges of transaction privacy. Benjamin Franklin and the other Founders and Framers would not approve. Instead, they would urge moving back to the retail specie standard that the nation enjoined from its inception until the New Deal.

It will be up to the American people to push for a return to Constitutional money, though, because politicians dislike the constraints that come with linking the dollar to gold, or anything else, like Bitcoin, in relatively fixed supply. Unlike the statesmen of the founding generations, partisan policymakers today want to borrow and spend so they can appear to help some people without immediately increasing taxes on others. In the process, though, they run huge deficits that have compounded over the last few decades into a massive national debt that would be impossible with a gold-linked dollar.

Robert E. Wright is a Senior Research Fellow at the American Institute for Economic Research. He is the (co)author or (co)editor of over two dozen major books, book series, and edited collections, including AIER’s The Best of Thomas Paine (2021) and Financial Exclusion (2019). He has also (co)authored numerous articles for important journals, including the American Economic Review, Business History Review, Independent Review, Journal of Private Enterprise, Review of Finance, and Southern Economic Review. Robert has taught business, economics, and policy courses at Augustana University, NYU’s Stern School of Business, Temple University, the University of Virginia, and elsewhere since taking his Ph.D. in History from SUNY Buffalo in 1997.

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Guest Essayist: Patrick M. Garry

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

The phrase marketplace of ideas has for more than a century been used to describe the nature and purpose of the First Amendment’s free speech protection. This phrase was famously articulated by Justice Oliver Wendell Holmes, Jr. in his dissenting opinion in the U.S. Supreme Court case of Abrams v. United States.

The issue in Abrams was whether the First Amendment protected Jacob Abrams from prosecution under the Espionage Act for distributing leaflets criticizing the dispatch of American troops to Russia and calling for a general strike in the U.S. The Supreme Court upheld Abrams’ conviction, ruling that his behavior posed a “clear and present danger” to the national security interests of the United States. Justice Holmes, however, disagreed. In a dissent that would later cast him as a defender of free speech and the First Amendment, Holmes wrote that the “best test of truth” of particular ideas is not the approval of government but the power of that speech “to get itself accepted in the competition of the market.”

Just because speech might be problematic or even contrary to government policy, it should not be prohibited by law, according to Holmes. Instead, the speech’s ability to gain approval in the social marketplace of ideas should determine its worth and staying power, Holmes argued. Only through the open competition of free and unhindered speech can society discover the truth necessary to govern itself. Since the people in a democratic society are the ultimate arbiters of social truth, there must exist a means by which the public can learn and acquire truth. As Justice Holmes recognized, and as courts have subsequently accepted, the best and perhaps only means to acquire truth is through the free exchange of ideas.

It would be nearly a half-century before the Supreme Court would accept the theory put forth by Justice Holmes in his 1919 Abrams dissent. Courts would come to value free speech as both a social and constitutional goal, and government restrictions on speech would be struck down as unconstitutional constraints on the marketplace of ideas. The constitutional protections of speech would not hinge on the government’s evaluation of the value or desirability of the speech.

The marketplace metaphor values free speech because only through open expression can society ever arrive at the social truths necessary for self-government. Consequently, to value truth is to value free speech; for without free speech, there can be no truth.

The enduring legacy of Holmes’ marketplace of ideas metaphor lay in its broadening of the justification for free speech. Prior to Holmes’ Abrams dissent, speech was looked upon as strictly an individual value. Thus, the only justification for protecting speech was the individual interest in being able to say whatever he or she wanted to say. At this point in America’s history, individual freedom to do or say whatever one felt like doing or saying was not highly valued. Social order and stability were far more valued, meaning the good of society prevailed over the interests of the individual. Survival and prosperity meant that individuals had to conform to societal norms.

Through his marketplace metaphor, Holmes demonstrated that free speech was not simply an individual value and that the reason for protecting free speech was not simply to grant unrestricted freedom to individuals. Instead, free speech was a necessary component to an effective and thriving society and nation. Without an open marketplace of ideas, the public could not come to a full and agreed upon appreciation of truth, which was the very foundation of self-government.

This marketplace principle can be violated today when unwanted speech is labeled “misinformation” and then censored.

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

 

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Guest Essayist: Gary Porter

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

“Life, liberty, and the pursuit of happiness.” As most Americans will recognize, these are words from the Declaration of Independence.

Dr. Larry Arnn, President of Hillsdale College, in his beautiful and insightful book: The Founders’ Key: The Divine and Natural Connection Between the Declaration and the Constitution and What We Risk by Losing It,” writes: “The Founders understood [the Declaration and Constitution] to be connected, to supply together the principles and the details of government, to be a persuasive and durable unity.”[i]

Most Americans have never encountered Thomas Jefferson’s first draft of the Declaration[ii] and are not aware the Declaration went through significant “wordsmithing” on its path to approval on July 4, 1776. In his draft, I particularly prefer Jefferson’s more powerful: “We hold these truths to be sacred & undeniable” to the final, “self-evident.” On the other hand, other sentences in Jefferson’s draft clearly benefited from the collaboration of the Congress, even while Jefferson later complained his work had been “mangled.” The judgment of historian Carl Becker was that “Congress left the Declaration better than it found it.”[iii]

“Life, liberty, and the pursuit of happiness.” Here Jefferson is of course referring to the “certain unalienable Rights” we have been “endowed by [our] Creator.” These natural, unalienable rights derive from natural law. In a 1775 newspaper essay entitled “The Farmer Refuted,” Alexander Hamilton explains the relationship between natural law and natural rights this way:

“To grant that there is a supreme intelligence who rules the world and has established laws to regulate the actions of his creatures; and still to assert that man, in a state of nature, may be considered as perfectly free from all restraints of law and government, appears to a common understanding altogether irreconcilable. Good and wise men, in all ages, have embraced a very dissimilar theory. They have supposed that the deity, from the relations we stand in to himself and to each other, has constituted an eternal and immutable law, which is indispensably obligatory upon all mankind, prior to any human institution whatever. This is what is called the law of nature … Upon this law depend the natural rights of mankind … The Sacred Rights of Mankind are not to be rummaged for, among old parchments, or musty records. They are written, as with a sun beam, in the whole volume of human nature, by the Hand of the Divinity itself; and can never be erased or obscured by mortal power.” (Emphasis added)

Indispensably obligatory? Sir William Blackstone explains why:

“Man, considered as a creature, must necessarily be subject to the laws of his Creator, for he is entirely a dependent being. A being independent of any other, has no rule to pursue, but such as he prescribes to himself; but a state of dependence will inevitably oblige the inferior to take the will of him, on whom he depends, as the rule of his conduct; not indeed in every particular, but in all those points wherein his dependence consists. This principle, therefore, has more or less extent and effect, in proportion as the superiority of the one and the dependence of the other is greater or less, absolute or limited. And consequently, as man depends absolutely upon his Maker for everything, it is necessary that he should in all points conform to his Maker’s will.”[iv]

If there was one political principle which was ubiquitous during the founding period, it was the natural, unalienable rights of the colonists. Early Americans almost never missed an opportunity to proclaim them. As Thomas West argues, “the founders shared a ‘theoretically coherent understanding’ of politics rooted in natural rights philosophy.”[v]

While Jefferson directly lists only three unalienable rights, other rights, both individual and collective, are hidden in plain sight. These include:

  • The right of a people “to dissolve the political bands which have connected them with another.”
  • The right “to alter or to abolish [an old government], and institute new government.” (Note: this right can also be seen as a duty!)
  • The right to secure their unalienable and civil rights through the institution of government.
  • The right to delegate power to government, through the people’s consent.

We must also note that Jefferson’s use of “the pursuit of happiness” is unusual. The normal “trio” of essential rights was “Life, Liberty and Property.” We find property mentioned in most “rights” documents from the founding period: “pursuit of happiness” is an outlier. John Adams, in A Defence of the Constitutions of Government of the United States of America (1787), reminds us:

“Property is surely a right of mankind as really as liberty.…The moment the idea is admitted into society, that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. If “Thou shalt not covet,” and “Thou shalt not steal,” were not commandments of Heaven, they must be made inviolable precepts in every society, before it can be civilized or made free.”

But as Thomas Paine warns us:

“[P]roperty will ever be unequal …. Industry, superiority of talents, dexterity of management, extreme frugality, fortunate opportunities, or the opposite, or the means of those things, will ever produce that effect, without having recourse to the harsh, ill-sounding names of avarice and oppression; and besides this there are some men who, though they do not despise wealth, will not stoop to the drudgery or the means of acquiring it, nor will be troubled with it beyond their wants or their independence; while in others there is an avidity to obtain it by every means not punishable; it makes the sole business of their lives, and they follow it as a religion. All that is required with respect to property is to obtain it honestly, and not employ it criminally; but it is always criminally employed when it is made a criterion for exclusive rights.”[vi]

Is there a relationship between property and other rights? To James Madison there certainly was: “In its larger and juster meaning, it [property] embraces every thing to which a man may attach a value and have a right; and which leaves to everyone else the like advantage… In the latter sense, a man has a property in his opinions, and in the free communication of them. He has a property of peculiar value in his religious opinions, and in the professions and practice dictated by them. He has a property very dear to him in the safety and liberty of his person. He has an equal property in the free use of his faculties and free choice of the objects on which to employ them. In a word, as a man is said to have a right in his property, he may be equally said to have a property in his rights.”9 Madison then explains that “conscience is the most sacred of all property … more sacred than his castle.”[vii]

With “property” aside, the unalienable rights of Life and Liberty are relatively easy to understand, but a right to “pursue happiness” begs further explanation.

In his First Inaugural Address, George Washington explained: “There exists in the economy and course of nature, an indissoluble union between virtue and happiness.” Jefferson would agree. But perhaps we should first clarify what the pursuit of happiness did not mean. To America’s founders, it was not the pursuit of licentiousness, the pursuit of base pleasure or the pursuit of wealth for wealth’s sake. John Locke warns us: “mistake not imaginary for real happiness”[viii]

“[T]he “pursuit of happiness” as envisaged by [John Locke] and by Jefferson was not merely the pursuit of pleasure, property, or self-interest (although it includes all of these). It is also the freedom to be able to make decisions that result in the best life possible for a human being, which includes intellectual and moral effort. We would all do well to keep this in mind when we begin to discuss the “American” concept of happiness.”[ix]

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people. CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text. Gary presents talks on various Constitutional topics, writes periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter @constitutionled.

[i] Larry Arnn, The Founders’ Key; The Divine and Natural Connection Between the Declaration and the Constitution and What We Risk by Losing It, Nashville, 2012, p.11.

[ii] https://founders.archives.gov/documents/Jefferson/01-01-02-0176-0004.

[iii] Carl Becker, Declaration of Independence, New York, 1922, p. 209.

[iv] Sir William Blackstone, Commentaries on the Laws of England, Section 2, Of the Nature of Laws in General, accessed at: https://www.laits.utexas.edu/poltheory/blackstone/cle.int.s02.html.

[v] Thomas West, The Political Theory of the American Founding: Natural Rights, Public Policy, and the Moral Conditions of Freedom, 2017.

[vi] Thomas Paine, Dissertation on First Principles of Government, 1795.

[vii] Kurland, Philip B. The Founders’ Constitution. Vol. 1. Chicago , IL: Univ. of Chicago Pr., 1987, p.598.

[viii] John Locke, An Essay Concerning Human Understanding, 1689, accessed at https://oll.libertyfund.org/title/locke-the-works-vol-1-an-essay-concerning-human-understanding-part-1.

[ix] Anonymous, accessed at https://www.pursuit-of-happiness.org/history-of-happiness/john-locke/.

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Guest Essayist: Andrew Langer

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

The essence of the American Dream lies in the belief that every individual, irrespective of their background, has the opportunity to succeed based on their talents, abilities, and hard work. A central driver of this dream is the principle of individual free enterprise, a system where businesses are free from excessive government interference, and individuals have the right to use their resources to create, innovate, and grow.

The beauty of individual free enterprise is that it unleashes the inherent potential within each of us. It allows an individual with a great idea to take that concept, build upon it, and bring it to the marketplace. It encourages creativity, fosters competition, and drives innovation. In this arena, an entrepreneur’s vision can be actualized, and dreams can truly come alive.

The American Dream, therefore, can be aptly described as the Entrepreneur’s Dream. It is a dream that does not discriminate based on race, color, or creed, but instead extols the resilience, tenacity, and spirit of individuals who are willing to take risks and work hard to realize their visions. It is the dream of creating something that can not only change an individual’s life but potentially impact the world.

The cornerstone of the American dream, the pursuit of happiness, is intrinsically linked to the principles of private property rights and individual free enterprise. Rooted in the United States Constitution and the Bill of Rights, these tenets have been the lifeblood of our nation’s prosperity and ingenuity for centuries. Understanding the interconnectedness of these concepts and their critical importance is paramount to preserving the spirit of liberty that fuels American progress.

The right to “pursue happiness” is not merely a poetic phrase; it is the Declaration of Independence’s embodiment of the American dream, anchoring the pursuit of personal fulfillment and prosperity to the soul of the nation. Rooted in the Enlightenment philosophy of John Locke, the Founding Fathers believed that government’s primary role was to safeguard the natural rights of its citizens, granting them the autonomy to seek their own path to happiness. This novel notion freed the American people from the chains of monarchical rule and ushered in a new era of self-determination, where individuals were encouraged to chart their destinies with vigor and determination.

Yet, for this dream to thrive, we must create and maintain an environment conducive to entrepreneurial growth. An essential ingredient of this environment is a regulatory and policy framework that facilitates rather than hinders enterprise. The government’s role should be to provide a stable, predictable legal framework that protects property rights, upholds the rule of law, and maintains a level playing field.

The concept of individual free enterprise, which underpins the American economic system, complements the right to pursue happiness perfectly. Free enterprise embodies the principles of economic freedom, private property rights, and voluntary exchange. By unleashing the entrepreneurial spirit of the American people, it facilitates the pursuit of happiness on an unprecedented scale. Indeed, the Founding Fathers understood that the realizations of one’s dreams and aspirations were inextricably tied to the freedom to engage in commerce and create wealth.

At the core of the Constitution’s protection of private property rights is the Fifth Amendment, which states, “nor shall private property be taken for public use, without just compensation.” The Founding Fathers understood that private property is the bedrock of personal liberty and economic growth. It is a tangible manifestation of an individual’s labor, ingenuity, and ambition; it fuels motivation and contributes to societal development. Moreover, the right to private property extends beyond the mere possession of physical goods to encompass intellectual property, businesses, and even ideas.

Inextricably linked to the notion of private property rights is the concept of individual free enterprise. This principle is the foundation upon which America’s economic success has been built. Free enterprise allows individuals to use their private property—whether it be their labor, capital, or ideas—to create value, compete in the marketplace, and achieve their own version of the American dream.

These concepts are not separate entities, but rather two sides of the same coin, each strengthening and reinforcing the other. The security of private property rights fosters an environment conducive to free enterprise, where individuals are more inclined to take risks, innovate, and invest, knowing that their efforts and resources are safeguarded. Similarly, free enterprise, through its production of wealth and opportunities, allows for the further accumulation and managing of private property.

Another critical factor is the societal attitude towards failure. In a true free enterprise system, failure is not a stigma but a stepping stone toward success. It is through trial and error that entrepreneurs refine their ideas, hone their skills, and ultimately succeed. A culture that encourages risk-taking, celebrates entrepreneurial spirit, and sees failure as a learning opportunity is one that will generate more innovation and prosperity.

Education also plays a significant role. Equipping individuals with the knowledge and skills to start and manage businesses, understand market dynamics, and adapt to changing economic landscapes is vital. This isn’t merely about promoting business education but encouraging a mindset of creativity and problem solving.

However, it is essential to note that these principles do not exist in a vacuum. The government plays a crucial role in ensuring their existence and efficacy, providing a stable legal framework and enforcing the rules of the game. Nevertheless, the balance is delicate. Overreaching government intervention can stifle creativity, disrupt the natural mechanisms of the free market, and erode private property rights. Thus, the principle of limited government—another pillar of our constitutional order—is central to this discussion.

The government should avoid policies that stifle ingenuity or add unnecessary burdens to entrepreneurs. High taxes, excessive regulations, and restrictive labor laws can serve as barriers to entry, preventing new ventures from getting off the ground and stifling the creativity and dynamism that drive economic growth and job creation.

The connection between the Constitution’s protection of private property rights and individual free enterprise is a testament to the profound wisdom of our Founding Fathers. Their understanding of human nature, individual freedom, and economic principles enabled them to construct a system that has fostered unprecedented prosperity and liberty.

Today, as we face the challenges of an increasingly globalized and digital world, these principles are more important than ever. Protecting private property rights and promoting free enterprise will enable us to preserve individual liberty, spur economic growth, and maintain America’s position as a bastion of invention.

The success of free enterprise in America is rooted in the belief that individuals, not government, are best suited to determine their needs and aspirations. This laissez-faire approach to economic governance has unleashed an unparalleled era of prosperity, creating the world’s largest economy and improving the lives of countless citizens. The unyielding spirit of entrepreneurship, driven by the pursuit of happiness, has fostered a culture of risk-taking and relentless ambition that has propelled America to greatness.

Individual free enterprise embodies the principles of meritocracy, rewarding hard work and creativity while fostering competition. It allows individuals to utilize their unique talents and skills to create value for others and, in turn, realize their own dreams. By removing bureaucratic barriers, free enterprise empowers citizens to participate in an ever-changing economic landscape, ensuring that success is not predestined but earned through dedication and effort.

The right to pursue happiness, as written in the Declaration of Independence, and the ideal of individual free enterprise are intrinsically linked. Together, they form the bedrock of the American dream, empowering individuals to chart their own destinies, create prosperity, and leave a lasting impact on society. Embracing the principles of liberty and free enterprise ensures that the pursuit of happiness remains not just a mere aspiration, but a tangible reality for all American citizens, as it has been for centuries since the nation’s founding.

Andrew Langer is President of the Institute for Liberty, a Fellow with Constituting America, as well as Chairman and Founder of the Institute for Regulatory Analysis and Engagement. IFL is a non-profit advocacy organization focused on advancing free-market and limited government principles into public policy at all levels. IRAE is a non-profit academic and activist organization whose mission is to examine regulations and regulatory proposals, assess their economic and societal impacts, and offer expert commentary in order to create better public policies. Andrew has been involved in free-market and limited-government causes for more than 25 years, has testified before Congress nearly two dozen times, spoken to audiences across the United States, and has taught at the collegiate level.

A globally-recognized expert on the impact of regulation on business, Andrew is regularly called on to offer innovative solutions to the challenges of squaring public policy priorities with the impact and efficacy of those policies, as well as their unintended consequences. Prior to becoming President of IFL and founding IRAE, he was the principal regulatory affairs lobbyist for the National Federation of Independent Business, the nation’s largest small business association. As President of the Institute for Liberty, he became recognized as an expert on the Constitution, especially issues surrounding private property rights, free speech, abuse of power, and the concentration of power in the federal executive branch.

Andrew has had an extensive career in media—having appeared on television programs around the world. From 2017 to 2021, he hosted a highly-rated weekly program on WBAL NewsRadio 1090 in Baltimore (as well as serving as their principal fill-in host from 2011 until 2021), and has filled in for both nationally-syndicated and satellite radio programs. He also created and hosted several different podcasts—currently hosting Andrew and Jerry Save The World, with long-time colleague, Jerry Rogers.

He holds a Master’s Degree in Public Administration from Troy University and his degree from William & Mary is in International Relations.

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Guest Essayist: Joerg Knipprath

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

In 1785, in his book Notes on the State of Virginia, Thomas Jefferson wrote in Query XIX, “Those who labor in the earth are the chosen people of God, if ever he had a chosen people, whose breasts he has made his peculiar deposit for substantial and genuine virtue. It is the focus in which he keeps alive that sacred fire, which otherwise might escape from the face of the earth. Corruption of morals in the mass of cultivators is a phenomenon of which no age nor nation has furnished an example.” In similar tone, in a passage in a letter to John Jay that same year, Jefferson effusively tied together all of the notions American agrarians held dear: “Cultivators of the earth are the most valuable citizens. They are the most vigorous, the most independent, the most virtuous, & they are tied to their country & wedded to its liberty & interests by the most lasting bonds.” He repeated similar sentiments throughout his life.

Jefferson was not alone in these adulatory opinions. Americans, whose beliefs otherwise might be quite heterodox about the nature of virtue or the best government or economic system, broadly shared his views. Nor was this mindset restricted to Americans, who occupied—rather sparsely, on the whole—a large tract of land and whose nation was overwhelmingly agricultural. The French physiocrats of the mid-18th century endorsed agricultural production as the true measure of a nation’s wealth, and land combined with agricultural labor as its only source. Going back further, Aristotle had extolled the virtues associated with agrarian society. But it was Roman writers such as Cato, Cicero, and Virgil whose works most influenced Enlightenment agrarians. Roman republicanism exalted land ownership to the point that senators were formally prohibited from engaging in any but agricultural endeavors, a restriction the senators avoided through various artifices as Rome became a more commercial society. The ideal of the Roman statesman was told in the story of Cincinnatus, the nobleman who was called from his pastoral existence to lead Rome in a time of crisis, only to lay down his office and return to his small farm when the crisis ended. For Americans, the resemblance to George Washington was not a coincidence.

But the most immediate influence on Americans’ exaltation of the yeoman farmer was a school of British Whiggism, the so-called country party. The 17th-century political philosopher James Harrington had penned Oceana, his description of an ideal commonwealth based on roughly equal holdings of land by its citizens. The land must be enough, unencumbered by debts, to provide for himself and his family. Only in this manner could he avoid dependence on another, his would-be master. That independence was crucial to cultivating the virtue necessary for self-government. English essayists of the 18th century, such as John Trenchard and Thomas Gordon, writing in Cato’s Letters, and Henry St. John, 1st Viscount Bolingbroke, with whose works Americans were quite familiar, also advocated the necessary relationship among ownership of an adequate estate in land, independence, virtue, and liberty.

Perhaps the single most influential philosopher for Americans of the Founding was John Locke. As with other political principles, Locke’s ideas on property, virtue, and limited government resonated in Jefferson’s writings. Locke posited that God gave the world to mankind in common. But man had the right to his own labor and could claim as his own both the land with which he mixed his labor and the fruits of his labor in the crops the land produced. At least implicitly, this required a plentiful supply of land that would be available for future generations.

Not surprisingly, Locke’s views found favor among Americans, who saw a virtually limitless bounty of land in their world. Although some areas along the Atlantic seaboard were becoming more populated, it was always possible to decamp for a tract unsettled, at least by Europeans, just a few dozen miles farther west. Various plans of settlement were grounded in the easy availability of land. There was the almost feudal system of land ownership designed for the Carolinas by John Locke, the secretary for one of the proprietors of that colony. Fortunately, his Fundamental Constitutions were substantially amended by the proprietors and then suspended after two decades, in 1690. More consistent with Locke’s other writings was the project of the proprietor of Georgia, James Edward Oglethorpe, in 1733. Oglethorpe designed a plan of economic and social development founded on land grants of equal size. Acquisition of additional land by marriage or purchase was prohibited. Likewise, slavery was prohibited as immoral, but also to prevent the emergence of large plantations as had happened in other colonies.

There was plenty of land in Georgia, as well as in the country west of the Allegheny Mountains. But there was a catch. After the end of French rule in North America, the British government signed treaties with the Indians to end Pontiac’s Rebellion and issued the Proclamation of 1763 to prevent western settlement. Existing settlers were ordered to abandon their tracts. Americans considered this to be a blatant attempt to prevent an increase in the population. The Proclamation was immensely unpopular among all classes, from the land speculators and investors in land syndicates with their fortunes now at risk, to the settlers looking for cheap and plentiful land. It became a major contributor to the ill will emerging against the British government.

Once American independence was achieved, settlers poured through the mountain passes into the western lands of the states and then into the unorganized areas of the Old Northwest. The Confederation Congress adopted the Land Ordinance of 1784, drafted by Jefferson, and the implementing Land Ordinance of 1785 to survey the lands and prepare them for sale.

While the peace treaty with Britain opened up potentially vast tracts of land for sale or, more frequently, squatting, some of the most committed ideologues of American agrarianism were still ill at ease. In particular, the rise of manufactures and merchant commerce troubled them. They saw in England the fate that awaited Americans of future generations. As the population there grew and the supply of land became filled, people were forced into wretched conditions in cities to labor for others. Adam Smith had described their condition in 1776 in Wealth of Nations: Farming required a variety of knowledge and practical understanding; not so factory work. “The man whose whole life is spent in performing a few simple operations, of which the effects too are, perhaps always the same…has no occasion to exert his understanding …. He naturally loses, therefore, the habit of such exertion, and generally becomes as stupid and ignorant as it is possible for a human creature to become.” This was hardly the stuff of the virtuous and enlightened citizen, jealous of his liberty, but ready to sacrifice for the well-being of the community, the free yeoman farmer or artisan suited to self-government in a republic.

Jefferson needed no convincing. He agreed with Smith that the division of labor in the emerging capitalist manufacturing sector produced significant material benefits. But he was also convinced that the nascent banking system with its creation of debt, as well as the monotony of factory work, created a dependency that robbed ordinary citizens of the autonomy needed for republican government. Regardless of material wealth produced by manufacturers and “stock jobbers,” a nation of farmers was better suited for a republic. Writing in Notes on the State of Virginia, Jefferson declared, “Manufacturing, and its attendant commerce, as European evidence had so graphically shown, distorted relationships among men, bred dependence and servility, and spawned greed and corruption which became a canker on the society. A nation of farmers, on the other hand, each of whom owned his own plot of land, who was free and beholden to no one, would assure the preservation of those qualities on which the strength of a republic depended.”

It was important, therefore, to provide land for as many as possible, including future generations. Echoing Locke, Jefferson wrote in a letter to James Madison on October 28, 1785,

“The earth is given as a common stock for man to labor and live on. If for the encouragement of industry we allow it to be appropriated, we must take care that other employment be provided to those excluded from the appropriation. If we do not, the fundamental right to labor the earth returns to the unemployed… It is not too soon to provide by every possible means that as few as possible shall be without a little portion of land. The small landholders are the most precious part of a state.”

Jefferson’s advocacy for the Land Ordinances of 1784 and 1785 reflected his eagerness to promote widespread land ownership. But his most edifying moment was the stroke of good fortune in the form of the Louisiana Purchase of 1803. For a bargain price of $15 million, or an estimated $350 million in today’s money, the territory acquired from France almost doubled the size of the United States. More accurately, the United States acquired the exclusive right to deal with the American Indian tribes that occupied most of the land. While there were other benefits, commercial and military, sufficient to overcome whatever constitutional scruples President Jefferson voiced to others about his authority to make the treaty, he was most gratified that the purchase achieved his goal of plentiful land for his republic of farmers and artisans: “The fertility of the country, its climate and extent, promise in due season important aids to our treasury, an ample provision for our posterity, and a wide-spread field for the blessings of freedom.” By this action, he could assure himself, he had guaranteed a republican future for generations of Americans to come, where the plenitude of land made certain that no one would have to subject himself to exploitation or domination by another.

Whereas Jefferson returned to the theme of his republic of farmers and artisans in frequent correspondences, he was not a systematic theorist of American agrarianism. That description best fits John Taylor of Caroline County, Virginia. Taylor was a lawyer, planter, military officer, and politician. He engaged in scientific agriculture, becoming a leader in promoting crop rotation, and published pamphlets and a book about those endeavors. He also wrote several books about political economy and the connection among land ownership, private happiness, independence defined as republican self-government, liberty, a limited and decentralized political system, division of political powers, and the laissez-faire economics of a free market. He vigorously opposed wealth and political power from the emerging capitalist manufacturing enterprises fueled by burdensome protective tariffs. But his most fervent denunciations were of banks, the paper issued by them unbacked by sufficient specie, and their practice of patronage and lobbying which according to Taylor, secured them unnatural privilege and wealth.

Taylor’s five books, especially his 1814 work, Inquiry into the Principles and Policy of the Government of the United States, brought philosophical discipline to the agrarian mythos among Americans. His contributions to political theory have been declared among the best that Americans have produced. Taylor’s adoration of agrarian republicanism at times took on a religious tone. He tied the story of the Garden of Eden to an agrarian social order and was convinced that an agrarian republic would allow man to regain his lost paradise.

Agriculture provided freedom which, in turn, produced private happiness. With family roots in the land, social organizations could develop organically, and people would enjoy true community through friendship, love, religion, education, and leisure. As well, agriculture provided the independence needed for republican self-government and the resulting public happiness created by wise laws. Manufacturing and capitalism had the opposite effect. In language reminiscent of Adam Smith, and to a degree of Karl Marx, Taylor denounced the emerging factory system as degrading human nature by destroying man’s freedom and happiness. The laborer was nothing more than a wage slave, paid a wage that supported him for that day and left no money for savings and improvement of his condition. Capitalists got the laborers to work for them but did not reward their efforts in commensurate manner. Like Smith and the French physiocrats, Taylor believed that true wealth ultimately was derived through the profits from land. Capitalism robbed that wealth from farmers and workers through tariffs and banks, and substituted paper wealth for true prosperity.

In all societies, some groups or classes dominate the exercise of political power at a given time. In a republic, a landed gentry was best. Perhaps not coincidentally, Taylor was among the landed gentry exercising political power in Virginia. Admittedly, a landed gentry had a degree of inherited power. The disparity in wealth and power among the agrarian class was tolerable, because these resulted from working the land. The broad availability of land and the nature of agricultural work would keep such differences within appropriate limits. On the other hand, a “paper system” of banking and commercial speculation created exorbitant wealth dangerous to society. Such a paper aristocracy relied on patronage and on taxation of productive farmers and laborers to maintain itself.

Taylor’s acceptance of inequality of landed wealth as sufficiently innocuous not to threaten personal liberty or republican self-government touched on a ticklish point for American agrarians. If republican government depended on broad participation by a politically fit and independent people, exercising their freedom through their connection with the land, was it not obligatory on republican government to assure broad equality in land ownership? Those who wrote passionately about the republic of yeoman farmers and artisans inevitably had significant land holdings themselves. Taylor, for example, at one point owned three plantations in Virginia and thousands of acres of western lands, so there was a limit to how far he was willing to press agrarian fundamentalism. There was the scent of self-interest in their discussions when they opposed proposals to redistribute land through “agrarian laws.” The only estates that were redistributed were those seized from Loyalists during the Revolutionary War, and even those were generally sold to purchasers of substantial means, often for speculation.

The opposition to such redistribution was broad and deep among those who determined policy. Jefferson may have been a supporter of the idea of equality in landed estates, but was less enthusiastic about redistributive laws. As he wrote in a letter to Joseph Milligan on April 6, 1816, “To take from one, because it is thought his own industry and that of his fathers has acquired too much, in order to spare to others, who, or whose fathers, have not exercised equal industry and skill, is to violate arbitrarily the first principle of [political] association, the guarantee to everyone the free exercise of his industry and the fruits acquired by it.”

Madison devoted considerable attention to the matter in the debates over the Constitution. He was strongly critical of the more enthusiastic exponents of agrarianism and considered the whole doctrine potentially turbulent. At the Philadelphia Convention, Madison warned about the “leveling spirit” manifested in the tax rebellion of farmers in western Massachusetts in 1786, known as Shays’ Rebellion:

“An increase of population will of necessity increase the proportion of those who will labour under all the hardships of life, & secretly sigh for a more equal distribution of its blessings. These may in time outnumber those who are placed above the feelings of indigence. According to the equal laws of suffrage, the power will slide into the hands of the former. No agrarian attempts have yet been made in this Country, but symtoms [sic], of a leveling spirit, as we have understood, have sufficiently appeared in a certain quarters to give notice of the future danger. How is this danger to be guarded agst. on republican principles? How is the danger in all cases of interested coalitions to oppress the minority to be guarded agst.?”

In short, as John Adams succinctly observed in 1790, “Property must be secured, or liberty cannot exist.” People were equal in that no one should be dependent on the will of another, and property, in particular land, made this independence possible. The way to such independence was not, however, through radical redistribution schemes but through the acquisition of plentiful land. Adams observed in a May 26, 1776, letter to James Sullivan:

“The balance of power in a society accompanies the balance of property in land. The only possible way, then, of preserving the balance of power on the side of equal liberty and public virtue is to make the acquisition of land easy to every member of society, to make a division of land into small quantities, so that the multitude may be possessed of landed estates. If the multitude is possessed of the balance of real estate, the multitude will take care of the liberty, virtue and interest of the multitude, in all acts of government.”

Americans at the Founding and for several generations thereafter saw themselves and their communities as naturally fit for republicanism precisely because they were “a people of property; almost every man is a freeholder.”

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

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Guest Essayist: Will Morrisey

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

Corruption means rottenness—disintegration caused not by external pressure but by some inner flaw. Political corruption occurs when a ruler, responsible for the country’s good, the good of the citizens, instead uses his authority to obtain a private benefit—something that seems good for himself, his family, his friends. Distrust and faction then weaken the body politic.

At the Constitutional Convention, the American Founders knew what corruption was. They had read the Bible which had taught them that corruption began with the human heart, that sin persisted in each of them, and that they might succeed in suppressing it. Each man at the Constitutional Convention was wary of the American people, their colleagues, and himself.

They had declared independence from the British Empire, a monarchic regime which had elevated political corruption to a routine practice, a way in which government ran. British monarchs exerted control over Parliament, the supposedly separate legislative branch, by offering key members positions within the royal administration, positions members could hold while continuing to sit in Parliament. The Founders saw a similar form of corruption in George III’s rule over the American colonies. Amongst the “long train of Abuses and Usurpations” designed to reduce the colonists to the status of subjects under an “absolute Despotism,” we find: “He has made Judges dependent on his Will alone, for the tenure of their Offices, and the Amount and Payment of their Salaries,” and “He has erected a Multitude of new Offices, and sent hither Swarms of Officers to harass our People, and eat out their Substance.” Such patronage bound public officials to the monarch, putting them at his service, turning them against governing for the good of the people governed.

George III was no anomaly. “All men having power ought to be distrusted to a certain degree,” James Madison warned, at the Convention. Corruption being ingrained in every human heart, the Framers of the United States Constitution never supposed it to be limited to regimes in which one person or a few persons ruled. Elected representatives in a democratic republic might engage in corrupt rule as readily as tyrants who call themselves kings or oligarchs who call themselves aristocrats. The small republics, the states whose people they represented at the Constitutional Convention had seen any number of such incidences. And the states, delegates agreed, were highly “democratical.”

In late June, the delegates were considering the legislative branch—instantiated by law in what would become Article I of the Constitution. How shall the members of the House of Representatives be paid? And will they be eligible for appointment to the executive branch? Money and power: indispensable to any government, the purpose of which is to secure the unalienable rights of life, liberty, and the pursuit of happiness, but also potentially the means of corruption, whereby the instruments of public good might be diverted to the acquisition of private wealth and aggrandizement.

When it came to paying Congressional representatives, all agreed that they should receive, in the words of one delegate, “adequate compensation for their services.” But who should pay them? To avoid the corruption that might creep in if they set their own salaries, some delegates argued that the states should determine them. Edmund Randolph of Virginia disagreed, arguing, “If the States were to pay the members of the National Legislature, a dependence [upon the States] would vitiate the whole system.” More specifically, Madison observed, this would make Senators “mere Agents and Advocates of State interests and views instead of being the impartial umpires and Guardians of justice and the general Good.” Alexander Hamilton concurred, distinguishing between “the feelings and view of the people” and “the Governments of the States,” as the latter might well be unfriendly to “the General Government.” Since “the science of policy is the knowledge of human nature” as it is seen in ruling and being ruled, and since such knowledge tells us that “all political bodies love power, and it will often be improperly attained,” state legislatures ought not be “the pay masters” of federal officials.

These arguments prevailed. Indeed, the state legislatures were to select the members of the United States Senate anyway, giving the state governments substantial influence on the Congressional conduct. Control over pay would have extended states’ control to the House of Representatives. Article I, section 6 stipulates that “Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law”—federal law—and “paid out of the Treasury of the United States.”

George Mason expressed no concern about corruption in the form of salaries, but the corruption itself worried and disgusted him. He had also become increasingly concerned about the ability of the states to defend themselves against encroachments by a newly empowered federal government, which, he worried, might ruin the states by corrupt means. When the question of making Congressional representatives ineligible for executive branch offices during their terms, and perhaps for a year after leaving office, he rose to say, “I admire many parts of the British constitution and government, but I detest their corruption.” Citing “the venality and abuses” of the British regime, he described the disqualification of Congressmen from executive offices as “a cornerstone of the fabric of the Constitution” and “the cornerstone on which our liberties depends.” Though mixed, the metaphor was ardently raised, for, whether offices are filled by the executive, as in Great Britain, or by the legislature, as in Virginia (“many of their appointments are most shameful”), “it is necessary to shut the door against corruption.” If legislators are allowed to take executive offices, “they [might] make or multiply offices, in order to fill them”—precisely what George III had done in North America. Mason identified ambassadorial posts as a rich field for such bestowals, as there are many small and obscure countries where a Congressman might find himself and his wife elevated to high and remunerative positions in exchange for a few votes on important national matters. Exactly this practice explains why “the power of the [British] crown has so remarkably increased in the last century.”

Against this, proponents of dual officeholding—in particular, James Wilson of Pennsylvania—maintained that disqualification would prevent good men from serving their country to the fullest extent of their abilities. Elected representatives are likely seen by their fellow citizens as men of virtue and ability. “This is truly a republican principle. Shall talents, which entitle a man to public reward, operate as a punishment?” In reply, Mason deprecated the thought. Can such men not be found outside Congress? Or, if Congressmen leave Congress for executive branch positions, are no good men available to replace them? “If we do not provide against corruption, our government will soon be at an end, nor would I wish to put a man of virtue in the way of temptation.”

Although he opposed Mason on the larger question of empowering the federal government, Hamilton sided with him here. “Our great error is that we suppose mankind more honest than they are.” But “our prevailing passions are ambition and interest.” Therefore, “when a member [of Congress] takes his seat, he should vacate every other office,” whether in the state or the federal government.

For his part, Madison disagreed with his future collaborator on The Federalist. Without the possibility of dual officeholding, he claimed, it will be hard to recruit qualified men for Congress. Further, disqualifying members won’t disqualify their cronies, so corruption will occur, anyway.

The majority of delegates found Mason and Hamilton persuasive. Article I, section 6 thus reads, “no Person holding any office under the United States, shall be a member of either House during his Continuance in Office.” To prevent legislators from creating new federal offices or raising the salaries of new ones and then quitting Congress to occupy one of them, “no Senator or Representative shall, during the Time for which he is elected,” be appointed to any such office (emphasis added).

But who shall appoint executive officeholders? If not the legislators or the president, and surely not the Supreme Court justices, then—who? Mason did not say. But his argument leaves only the states to perform this task. Mason had earlier argued that state legislatures’ election of U.S. Senators provided one means of self-defense for the states. In his mind, state legislative control of executive branch appointments might have been another, even as control of salaries had been, in the eyes of delegates who later joined him in becoming Anti-federalists. If so, the notion went nowhere, and the delegates eventually split the power between presidential appointment and Senatorial approval.

The argument over political corruption thus went well beyond the moral objection to corruption itself—ingrained in human nature, to be sure, but also susceptible to rational discipline and dilution. Corruption raised the overall question the delegates addressed, the question of the structure of the American regime. A republic, if you can keep it, Mr. Franklin famously said. But how to keep it? In shaping a government strong enough both to represent and to rule the people, to secure their unalienable rights and not to undercut them, the Framers sought to set down institutional barriers that would impede corruption, without pretending to remove it from the human heart.

Will Morrisey is Professor Emeritus of Politics at Hillsdale College, editor and publisher of Will Morrisey Reviews, an online book review publication.

 

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Guest Essayist: Andrew Langer
Writing the Declaration of Independence, 1776. Benjamin Franklin, John Adams, and Thomas Jefferson working on the Declaration, a painting by Jean Leon Gerome Ferris, 1900

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

“I do believe that men of genius will be deterred unless possessed of great virtues. We may well dispense with the first characters when destitute of virtue I should wish them never to come forward–But if we do not provide against corruption, our government will soon be at an end: nor would I wish to put a man of virtue in the way of temptation. Evasions, and caballing would evade the amendment. Nor would the danger be less, if the executive has the appointment of officers. The first three or four years we might go on well enough; but what would be the case afterwards? I will add, that such a government ought to be refused by the people–and it will be refused.” – George Mason, Farrand’s Records, Federal Convention, Saturday, June 23, 1787, regarding provisions against fraud and corruption regardless of an invasion’s origin slowly eroding the United States.

In the true spirit of the American founding, George Mason’s assertion during the Federal Convention of 1787 deeply resonates with our contemporary political and social landscape. As he opined, a lack of virtue and unchecked corruption pose significant threats to the integrity and endurance of our government. Today, as we explore the principle of the appropriate role and purpose of government in protecting people from violence and fraud, we must bear these foundational truths in mind. We must also heed the wisdom of Mason, understanding the immense potential of the government as a force for good, but also the catastrophic possibilities when it strays from the path of virtue and integrity.

At its most fundamental level, the government exists to serve and protect its citizenry, a contract defined and limited by the United States Constitution. In this regard, the state’s role as a protector against violence and fraud becomes manifestly clear. This duty underscores the necessity for law enforcement agencies, a system of justice that ensures accountability, and regulatory mechanisms that guard against fraudulent actions. It is within these parameters that the government can and must act, without overstepping its boundaries and encroaching upon individual liberties.

Mason’s words have their roots in the prose written by his fellow Virginian, Thomas Jefferson, in the Declaration of Independence: “to secure… rights, Governments are instituted among Men” and is the very the heart of the United States’ philosophy and the very nature of democratic governance. These words are an affirmation of the contract between the governed and their governors, denoting a central truth of political theory and civil society: the state’s primary purpose is to protect the individual rights of its citizens.

Liberty has an intrinsic value, not as an abstract philosophical concept, but as a practical, living principle that shapes our everyday lives. The freedom to pursue our dreams, express our thoughts, associate with others, and engage in economic transactions without undue restraint is what gives life its richness and vitality. Yet, as vital as individual liberty is, it does not exist in a vacuum. Rights inevitably come into conflict, and when they do, a mechanism is needed to adjudicate those conflicts in a fair and just manner. This is where government steps in.

The role of government in protecting individuals from harm when individual rights conflict is a delicate balancing act. The government must tread carefully to prevent undue encroachments on individual liberty while simultaneously safeguarding the common good. It must protect individual rights without creating a lawless society where might makes right and the strongest prevail over the weakest. In doing so, it preserves the delicate balance between individual freedom and societal stability.

Consider the realm of property rights. Suppose one person’s use of their property causes harm to another’s property, such as pollution flowing downstream from a factory to a farmer’s field. Here, the rights of one individual or group, the factory owners, are in direct conflict with the rights of another, the farmers. If left unresolved, such conflicts can escalate, potentially leading to animosity, legal battles, and even violence.

In this instance, government, as the arbiter of rights and protector of the public good, has a vital role to play. By setting and enforcing regulations that prevent harm, it can ensure the factory owner’s right to conduct business without infringing on the farmer’s rights to a clean environment and productive land. In this way, the government upholds the tenets of liberty and justice for all, ensuring that no individual or group’s rights supersede another’s to the detriment of society.

All just law is rooted in this concept: where rights come into conflict, the party that is more aggrieved/harmed is supposed to be protected by the law. However, as the government steps in to mediate such conflicts, it must be careful not to overreach, a common pitfall in the quest to ensure harmony. Overreach can manifest in excessive regulation, infringing upon individual freedoms, and stifling economic prosperity. The challenge lies in striking the correct balance, respecting individual rights while preserving the common good.

Moreover, it is vital to remember that government itself is not immune to the temptation of overreach. This is precisely why the Founding Fathers, mindful of the potential for tyranny, insisted on a system of checks and balances to prevent any one branch of government from gaining too much power. It is incumbent upon us, as citizens, to remain vigilant against any such overreach, to question and challenge when necessary, and to insist on our rights and freedoms.

The delicate balance between liberty and security is a critical concern. Too much emphasis on security, and we risk suffocating individual freedom; too little, and we expose ourselves to the danger of anarchy and lawlessness. This tension forms the crux of the government’s challenge in protecting its people from violence and fraud while preserving the inalienable rights of its citizenry.

However, in today’s increasingly complex society, the government’s role is constantly being tested and redefined. As we delve further into the 21st century, we find ourselves grappling with unprecedented challenges—cybercrime, international terrorism, economic fraud on a massive scale—that blur the boundaries of the state’s role. In this context, it is crucial to reassert the primacy of integrity and virtue, two pillars Mason identified as essential to good governance. Without them, the government risks becoming a tool for the powerful, rather than an institution that serves its people.

Indeed, Mason’s concerns about corruption, temptations, and the erosion of government integrity remain as pertinent today as they were in the 18th century. The key to preserving the integrity of our government lies in adhering to the principles of transparency, accountability, and the rule of law. Our elected officials must remain accountable to the people they serve, demonstrating their commitment to these ideals in every decision they make. Additionally, the government’s regulatory role must be applied uniformly, without favor or prejudice, to ensure a level playing field for all.

Mason was also prescient in his prediction of how unchecked corruption could spell the end of a government. In this, we are reminded of the ever-present need for vigilance and active participation from the citizenry. The fight against corruption and fraud should not be left to the government alone. As citizens, we must hold our government accountable, demanding transparency and integrity in all its dealings. Furthermore, we should also resist the allure of complacency, instead embracing our civic duty to contribute to the democratic process, whether that be through voting, peaceful protest, or public discourse.

Mason’s words serve as a beacon, guiding us through the murky waters of modern governance. As we navigate the complexities of the 21st century, his emphasis on virtue, the prevention of corruption, and the importance of a government that serves its people rather than its self-interests continues to ring true. As we affirm the government’s role in protecting us from violence and fraud, we must also insist on its adherence to the principles that have defined our nation since its inception: liberty, integrity, and the unyielding pursuit of justice. Only by doing so can we ensure the preservation of our government and the endurance of America.

The role of government as the protector of individual rights when they come into conflict is an essential one. It balances the scale between liberty and societal stability, ensuring harmony among conflicting interests. Yet, it must perform this duty with due respect for the very rights it is sworn to protect, treading the line between regulatory oversight and individual freedom. As we navigate these complex issues, we must remember that preserving liberty is the ultimate goal, and a government that respects this will indeed be a government of the people, by the people, for the people.

Andrew Langer is President of the Institute for Liberty, a Fellow with Constituting America, as well as Chairman and Founder of the Institute for Regulatory Analysis and Engagement. IFL is a non-profit advocacy organization focused on advancing free-market and limited government principles into public policy at all levels. IRAE is a non-profit academic and activist organization whose mission is to examine regulations and regulatory proposals, assess their economic and societal impacts, and offer expert commentary in order to create better public policies. Andrew has been involved in free-market and limited-government causes for more than 25 years, has testified before Congress nearly two dozen times, spoken to audiences across the United States, and has taught at the collegiate level.

A globally-recognized expert on the impact of regulation on business, Andrew is regularly called on to offer innovative solutions to the challenges of squaring public policy priorities with the impact and efficacy of those policies, as well as their unintended consequences. Prior to becoming President of IFL and founding IRAE, he was the principal regulatory affairs lobbyist for the National Federation of Independent Business, the nation’s largest small business association. As President of the Institute for Liberty, he became recognized as an expert on the Constitution, especially issues surrounding private property rights, free speech, abuse of power, and the concentration of power in the federal executive branch.

Andrew has had an extensive career in media—having appeared on television programs around the world. From 2017 to 2021, he hosted a highly-rated weekly program on WBAL NewsRadio 1090 in Baltimore (as well as serving as their principal fill-in host from 2011 until 2021), and has filled in for both nationally-syndicated and satellite radio programs. He also created and hosted several different podcasts—currently hosting Andrew and Jerry Save The World, with long-time colleague, Jerry Rogers.

He holds a Master’s Degree in Public Administration from Troy University and his degree from William & Mary is in International Relations.

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Guest Essayist: James P. Pinkerton

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

The new movie Oppenheimer offers us a window into the past: Into a key moment in the evolution of our national defense—and along the way, the film underscores the importance of fending off treason.

The authors of the U.S. Constitution, steeped as they were in history, knew all about the danger a nation faced from betrayal. In particular, the Catilinarian Conspiracy of the ancient Roman Republic loomed large in their minds, such that in the 18th century, “Catiline” became synonymous with “traitor.” Yet that same knowledge of history told the Americans that oftentimes in the past, mere dissent, peaceful and legitimate, had been labeled as treachery, the easier to crush the dissenters. So Article Three, Section Three, of the Constitution carefully circumscribes the offense; it declares that treason “shall consist only in levying War against [the United States], or in adhering to their Enemies, giving them Aid and Comfort.” Explaining this narrowly constructed language in The Federalist Papers, the essays aimed at encouraging the ratification of the Constitution, James Madison wrote, “Artificial treasons have been the great engines by which violent factions . . .  have usually wreaked their alternate malignity on each other.” That is, bad regimes were too easily tempted to label troublemakers as traitors. Seeking to reassure Americans that their rights and liberties would be protected, Madison pledged that the Constitution establishes “a barrier to this peculiar danger, by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the Congress, even in punishing it, from extending the consequences of guilt beyond the person of its author.” In other words, no overbroad definition of treason, and no collective punishment—no reigns of terror—for the acts of an individual.

The Constitution’s sense of moderation and due process informs the new movie about J. Robert Oppenheimer, director of the laboratory at Los Alamos, N.M., which developed the atomic bomb during World War Two. Oppenheimer was a scientific genius blessed with, in addition, great skills of organization and leadership. And he was also at least something of a communist. Thus the paradox in the film: Oppenheimer was needed for national defense, and he was also a potential security threat.

Beyond any reasonable doubt, the atomic bomb has been vital to defending America and protecting American lives. During World War Two, there was reason to believe that Nazi Germany was building an atomic weapon, and we had to have the bomb before Hitler. And even after that satanic regime was crushed, the other enemy, Japan, was still fighting, still killing Americans; the Okinawa campaign of April-June 1945 led to the death of some 12,500 GIs, as well as more than 110,000 Japanese. Yet despite these terrible defeats, Japan showed no inclination to give up its hopeless fight—until the U.S. used atomic bombs in August 1945. The carnage of Hiroshima and Nagasaki notwithstanding, Japan’s surrender saved hundreds of thousands of American lives, and many millions of Japanese lives. To illustrate the depths of the challenge the U.S. faced, in 1946, Karl Compton, president the Massachusetts Institute of Technology, reported on his conversation with a Japanese military officer who suggested that were it not for the intervening surrender, every Japanese would have died combating Americans. “We would have kept on fighting until all Japanese were killed, but we would not have been defeated,” the officer told Compton. The population of Japan at the time was 77 million.

So Oppenheimer was a hero of our national defense, just as Americans were heroes for mobilizing the resources needed to build the bomb. The Manhattan Project employed a total of 610,000 Americans. And some of those Americans were traitors, spies for the Soviet Union. Only after World War Two, with the onset of the Cold War against the Soviets, did we discover the espionage of such figures as Klaus Fuchs, David Greenglass, and Ted Hall. All had worked at Los Alamos under Oppenheimer.  Fuchs and Greenglass were tried, convicted, and imprisoned—but in both cases, for less than a decade (Fuchs served his time in Britain). As for Hall, he was stripped of his security clearance, but allowed to continue his career as a physicist.

This pattern of treachery, of course, reflected on Oppenheimer himself. In 1954, after a quasi-judicial proceeding lasting two months—complete with witnesses to be examined and cross-examined by lawyers—Oppenheimer was stripped of his security clearance. Yet even so, he was free to live his life; he wrote a book, lectured widely, toured the world (although not the USSR or any other communist country), and even received an award from President Lyndon Johnson in 1963. He died in 1967.

So we can see: The Constitution’s carefully crafted words about treason—and the overall tone of restraint applied to the charge—prevented any of these convicts and suspects from drastic punishments.  (Other spies of that era were treated more harshly.)

The freedoms accorded to us by the Constitution have made us prosperous, of course, in no small part because liberty makes the U.S. a magnet for talent from around the world—four of the top Manhattan Project scientists were born in Hungary, and none of them were spies. Those strengths give us the capacity to build wonder-weapons such as the atomic bomb. And yet that same freedom makes it harder for us to keep secret our secrets.

So this is our Republic: If we can keep it.

James P. Pinkerton worked in the White House domestic policy offices of Presidents Ronald Reagan and George H.W. Bush and in their 1980, 1984, 1988 and 1992 presidential campaigns. In 2008, he served as a senior adviser to Mike Huckabee’s presidential campaign. From 1996 to 2016, he was a Contributor to the Fox News Channel. A frequent contributor to Breitbart, The Daily Caller, and The American Conservative, he is a senior fellow at the America First Policy Institute. He is finishing a book on directional investment.

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Guest Essayist: Ron Meier

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

“They were likewise sensible that on a subject so comprehensive, and involving such a variety of points and questions, the most able, the most candid, and the most honest men will differ in opinion…Although many weeks were passed in these discussions, some points remained, on which a unison of opinions could not be effected. Here again that same happy disposition to unite and conciliate, induced them to meet each other; and enabled them, by mutual concessions, finally to complete and agree to the plan they have recommended, and that too with a degree of unanimity which, considering the variety of discordant views and ideas, they had to reconcile, is really astonishing…Reflect that the present plan comes recommended to you by men and fellow citizens who have given you the highest proofs that men can give, of their justice, their love for liberty and their country, of their prudence, of their application, and of their talents. They tell you it is the best that they could form; and that in their opinion, it is necessary to redeem you from those calamities which already begin to be heavy upon us all.” – John Jay, first Chief Justice of the United States Supreme Court, in his pamphlet, A Citizen of New York: An Address to the People of the State of New York, April 15, 1788.

“I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.”

The Oath of Office for elected and appointed officials of the United States government, including Congressional Senators and Representatives, states that they will “support and defend” and “bear true faith and allegiance” to the United States Constitution. Yet, the first time the Constitution was read aloud in the Congress was in 2011. Every two years since, at the beginning of each new Congressional term, members of the House from both parties, for most years since 2011, read aloud the Constitution.

Many Americans support Congress taking time (approximately 45-90 minutes) at the beginning of each Congressional session to read aloud the document they pledge to support; many other Americans consider the reading a waste of time. Videos of the readings seem to support the latter opinion. The only members of Congress in the Chamber during the reading appear to be those who read passages. If all members are not present following along, one can easily conclude that there is little to no value to the exercise.

In September, 1787, upon completion of the writing of the Constitution, a Mrs. Powel is reported to have asked Benjamin Franklin, upon exiting Independence Hall in Philadelphia, “Well, Doctor, what have we got, a republic or a monarchy?” Dr. Franklin replied “A republic, if you can keep it.”

The creation of the document, the Constitution, over the summer of 1787 involved much heated debate among the Convention’s delegates, focused primarily on the concern over the transition from a Confederation, where the states were relatively independent and sovereign, to a Representative Republic, which many feared would eventually become more authoritarian in practice, leaving the states with little to no sovereign powers. New York’s ratification was a concern.  Alexander Hamilton and John Jay of New York and James Madison of Virginia took it upon themselves to write the Federalist Papers for publication in New York newspapers to promote ratification by New York.

Jay also wrote a pamphlet entitled Address to the People of New York in April 1788, to further convince New York to ratify the Constitution. At the time of his Address, only six of the required nine states had ratified the Constitution. New York ratified the document in July, after the required nine had been achieved.

After the Constitution was ratified, the desired “more perfect union” quickly reflected Madison’s warning of faction, expressed in Federalist 10. Jefferson and Madison formed the Democratic Republican Party to oppose their perceived centralized national government tendencies of the Federalist Party of George Washington and John Adams. Over the past 231 years, the “more perfect union” has been under constant attack and counterattack by factions.

Some of today’s influential politicians believe that the 1787 Constitution no longer is relevant in a more pluralistic and modern nation than existed in 1787. Some others differ and believe that the core principles of the Declaration of Independence and the Constitution reflect the best aspirations of the nation formed in the 18th century, that those aspirations remain relevant today and must be retained.

So, many questions are worth asking. For example, if a member of Congress professes to be a Socialist and intends to propose legislation that makes the country more Socialist in nature, is he or she not “bearing true faith and allegiance” to the Constitution? If a member of Congress encourages universities to stifle the speech of members of opposition parties in the classroom and at on campus events, is he or she rejecting the First Amendment to the Constitution, not “supporting and defending” the Amendment? Many other similar questions can be posed.

All factions over the past 231 years have believed that they have better plans for how the American government should be structured. But, John Jay’s 1788 remarks on that topic are as relevant today as they were in 1788.

Jay also noted in his address to the People of the State of New York that:

“zeal for public good, like zeal for religion, may sometimes carry men beyond the bounds of reason. Remember that a power to do good, always involves a power to do harm. The objections made to it (the Constitution) are almost without number, and many of them without reason—some of them are real and honest, and others merely ostensible.”

He acknowledges man’s hubris, saying:

“Let it be admitted that this plan, like everything else devised by man, has its imperfections: That it does not please everybody is certain and there is little reason to expect one that will. It is a question of great moment to you, whether the probability of your being able seasonably to obtain a better, is such as to render it prudent and advisable to reject this, and run the risk.

They do not hold it up as the best of all possible ones, but only as the best which they could unite in, and agree to. What reason have we at present to expect any system that would give more general satisfaction?”

Today, some on both sides of the political divide suggest that we should have a Constitutional Convention. Jay addressed this also.

“Some will answer, let us appoint another Convention. This reasoning is fair, and as far as it goes has weight; but it nevertheless takes one thing for granted, which appears very doubtful; for although the new Convention might have more information, and perhaps equal abilities, yet it does not from thence follow that they would be equally disposed to agree. The contrary of this position is the most probable. You must have observed that the same temper and equanimity which prevailed among the people on the former occasion, no longer exists. We have unhappily become divided into parties.

Nor will either party prefer the most moderate of their adherents, for as the most staunch and active partisans will be the most popular, so the men most willing and able to carry points, to oppose, and divide, and embarrass their opponents, will be chosen. The same party views, the same propensity to opposition, the same distrusts and jealousies, and the same unaccommodating spirit which prevail without, would be concentrated and ferment with still greater violence within. As vice does not sow the seeds of virtue, so neither does passion cultivate the fruits of reason. To expect that discord and animosity should produce the fruits of confidence and agreement, is to expect “grapes from thorns, and figs from thistles.”

A discordant warning follows:

“But if for the reasons already mentioned, and others that we cannot now perceive, the new Convention, instead of producing a better plan, should give us only a history of their disputes, or should offer us one still less pleasing than the present, where should we be then? The old Confederation has done its best, and cannot help us; and is now so relaxed and feeble, that in all probability it would not survive so violent a shock. Then “to your tents Oh Israel!” would be the word.”

Jay concludes, saying:

“Let us also be mindful that the cause of freedom greatly depends on the use we make of the singular opportunities we enjoy of governing ourselves wisely; for if the event should prove, that the people of this country either cannot or will not govern themselves, who will hereafter be advocates for systems, which however charming in theory and prospect. are not reducible to practice. If the people of our nation, instead of consenting to be governed by laws of their own making, and rulers of their own choosing, should let licentiousness, disorder, and confusion reign over them, the minds of men everywhere, will insensibly become alienated from republican forms, and prepared to prefer and acquiesce in Governments, which, though less friendly to liberty, afford more peace and security.

Some of our Congressional Representatives and Senators may sincerely believe that a better government can be formed than the Republic under which we have prospered for 231 years. If so, then they should meet, not in a Constitutional Convention, but in study groups outside of Congress to discuss, plan, and test their ideas against history. In the meantime, their duty, expressed in their oath of office, is to better understand the Constitution under which they serve and to faithfully uphold its principles and laws. They should not propose legislation, nor ignore enforcement of existing legislation, that they can, and should, know is inconsistent with the Constitution to which they have obligated themselves to “bear true faith and allegiance” as well as to “protect and defend.”

Ron Meier is a West Point graduate and Vietnam War veteran. He is a student of American history, with a focus on our nation’s founding principles and culture, the Revolutionary War, and the challenges facing America’s Constitutional Republic in the 20th and 21st centuries.

Sources:

Bowen, Catherine.  Miracle at Philadelphia.  New York:  Little, Brown and Company, 1986

“I Do Solemnly Swear” – The Oath Of Office And What It Means | FedSmith.com

1787: Jay, Address to the People of N.Y. (Pamphlet) | Online Library of Liberty (libertyfund.org)

Order of States in Ratification of the US Constitution (thoughtco.com)

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Guest Essayist: Tony Williams

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

The way is plain, says the anonymous Addresser. If War continues, remove into the unsettled Country; there establish yourselves, and leave an ungrateful Country to defend itself. But who are they to defend? Our Wives, our Children, our Farms, and other property which we leave behind us. or, in this state of hostile separation, are we to take the two first (the latter cannot be removed), to perish in a Wilderness, with hunger, cold and nakedness? If Peace takes place, never sheath your Swords Says he until you have obtained full and ample justice; this dreadful alternative, of either deserting our Country in the extremest hour of her distress, or turning our Arms against it…what can this writer have in view, by recommending such measures? Can he be a friend to the Army? Can he be a friend to this Country? – George Washington, Speech to the Officers of the Army at Newburgh, in response to petitions for the United States military to protest in mutiny. March 15, 1783.

In late 1782, General George Washington was encamped with the army at Newburgh, New York and was deeply troubled. He had won the Revolutionary War with the stunning allied victory over the British at Yorktown and awaited word of a preliminary peace treaty that had been signed in France. However, the British still occupied New York City. Virginia revoked its approval of a five-percent tariff which meant that Congress had little funds. Therefore, it could not pay the officers and soldiers of the Continental Army who were increasingly disgruntled and ready to mutiny. Washington would soon face one of his greatest crises that would test his character and the survival of the republic.

Throughout the war, as Commander-in-Chief, Washington had scrupulously deferred to the civilian authorities of the states and the national Congress. Even when the states and Congress did not pay the troops or offer much-needed supplies, weapons, and money, the general always supported the republican government. He was often frustrated by the civilian government as it hampered the war effort, but he set the right precedents for civil-military relations within a republic.

On December 28, the officers sent a delegation from Newburgh to Congress with a threatening petition that read, “We have borne all that men can bear – our property is expended – our private resources are at an end, and our friends are wearied and disgusted with our incessant applications.” They warned, “Any further experiments on [our] patience may have fatal effects,” and hinted at an overthrow of Congress and civilian government.

A few politicians in Philadelphia saw an opportunity to use the anger to secure a more powerful central government rather than the weak government under the Articles of Confederation. For example, financier Robert Morris threatened to resign if Congress did not pass a tax to collect revenue to pay the soldiers. Representative Alexander Hamilton and others also wanted to use the threats of the officers to pressure Congress to adopt greater powers.

Despite the woeful financial situation, Washington did not stand alone in his support of Congress. His trusted friend and general of the artillery, Henry Knox, was a patriot who refused to take the bait of his fellow officers and defended the civilian government. Knox told them, “I consider the reputation of the American Army as one of the most immaculate things on earth. We should even suffer wrongs and injuries to the utmost verge of toleration rather than sully it in the least degree.”

In February, Hamilton tried to persuade Washington to join the scheme. Hamilton wrote, “The claims of the army urged with moderation, but with firmness, may operate on those weak minds . . . so as to produce a concurrence in the measures which the exigencies of affairs demand.” Washington would have none of it and responded that the consequences of a general mutiny against Congress “would at this day be productive of civil commotions and end in blood. Unhappy situation this! God forbid we should be involved in it.” He cautioned Hamilton that, “the army is a dangerous instrument to play with.”

In mid-March, General Horatio Gates, the hero of the American victory at the Battle of Saratoga in 1777, joined the conspiracy. Gates’ aide penned an address to American soldiers that fanned their anger towards Congress: “Faith has its limits, as well as temper; and there are points beyond which neither can be stretched.” Gates called the officers to a meeting to discuss the situation.

The rebellion against the government was averted by the character of George Washington, who dedicated himself to the republican principle of military deference to the civilian government. He learned about the Newburgh conspiracy and strode into the appropriately-named Temple of Virtue on the symbolically-fraught March 15—the Ides of March. In the Newburgh Address, he called on his soldiers to stop those who would “overturn the liberties of our country, and who wickedly attempt to open the flood gates of civil discord.”

Washington continued: “This dreadful alternative, of either deserting our Country in the extremest hour of her distress, or turning our Arms against it…what can this writer have in view, by recommending such measures? Can he be a friend to the Army? Can he be a friend to this Country?” His view of patriotism was rooted in Roman virtue—serving the republic, acting with reason over passion, putting country over himself, respecting civilian authority.

When the general’s patriotic appeal fell somewhat flat and his audience seemed unpersuaded, Washington made a dramatic appeal based upon his love of theater. He pulled out his glasses while stating, “Gentlemen, you will permit me to put on my spectacles, for I have not only grown gray, but almost blind, in the service of my country.” Most of the men present had never seen their general use eyeglasses; this simple action reminded the officers that Washington, like the men he led, had made great sacrifices for the cause of liberty. The men renounced their intent to overthrow Congress and pledged their support for the republican government.

Washington quelled the rebellion in the army and established the right precedent for civilian control of the military. He refused to become a Caesar who overthrew the Roman republic for his own glory and became a modern Cincinnatus who served the republic in its hour of need and returned to his plow. The Newburgh Conspiracy became Washington’s finest hour.

The history of American civil-military relations has seen its share of challenges from ambitious individuals. Perhaps the most notable and infamous case was President Harry Truman firing an insubordinate General Douglas MacArthur during the Korean War. In each challenge, the example laid down by Washington held, and the American republic continued to be governed by the constitutional rule of law and popular self-rule rather than military dictatorship.

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

 

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Guest Essayist: Tony Williams
George Washington, presided over the first Continental Congress; Commander-in-Chief of the Continental Army during the American Revolutionary War; first President of the United States; painting by Gilbert Stuart, 1796.

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

“The great rule of conduct for us in regard to foreign nations is in extending our commercial relations, to have with them as little political connection as possible. So far as we have already formed engagements, let them be fulfilled with perfect good faith…Our detached and distant situation invites and enables us to pursue a different course. If we remain one people under an efficient government. the period is not far off when we may defy material injury from external annoyance; when we may take such an attitude as will cause the neutrality we may at any time resolve upon to be scrupulously respected; when belligerent nations, under the impossibility of making acquisitions upon us, will not lightly hazard the giving us provocation; when we may choose peace or war, as our interest, guided by justice, shall counsel. Why forego the advantages of so peculiar a situation? Why quit our own to stand upon foreign ground? Why, by interweaving our destiny with that of any part of Europe, entangle our peace and prosperity in the toils of European ambition, rivalship, interest, humor or caprice? It is our true policy to steer clear of permanent alliances with any portion of the foreign world; so far, I mean, as we are now at liberty to do it; for let me not be understood as capable of patronizing infidelity to existing engagements…Taking care always to keep ourselves by suitable establishments on a respectable defensive posture, we may safely trust to temporary alliances for extraordinary emergencies.” – George Washington, Farewell Address, first published September 19, 1796 in Claypoole’s American Daily Advertiser and given the date September 17, 1796.

When George Washington assumed the office of the presidency in 1789, the new republic faced a world fraught with imperial rivalries of the European great powers. This struggle played itself out in North America where the British ruled Canada and had troops stationed in forts along the northwestern frontier of the United States. The Spanish held Mexico, the West, and the Floridas. Meanwhile, the new nation soon went to war with several hostile Native American tribes on the frontier. Several powers, including the French, contended for the valuable sugar islands of the West Indies, or Caribbean. The British Empire excluded its former colonies from lucrative imperial trade.

Washington and his Cabinet along with members of Congress had to formulate the principles and policies of American foreign policy according to the dictates of constitutionalism, American ideals, and prudence. The outbreak of the French Revolution in 1789 and its expansionary wars compounded the difficulties of American diplomacy in the early 1790s.

President Washington had to navigate these shoals keeping in mind that the new nation was weak compared to the great empires. The United States had only a small army and not much of a navy. The economy was similarly weak as the country was locked out of former markets in the British West Indies and had to get its public credit in order by paying off the Revolutionary War debt. National security was a priority for the Washington administration but securing it would not be easy.

When the French revolutionaries sought to spread the fires of revolution to liberate the people of Europe from monarchy and aristocracy, Washington had to decide an appropriate response for the new nation. Washington and his Cabinet debated the issue and prudentially decided that it was ill-prepared for war and would not join the French despite their 1778 treaty from the American Revolution. The United States would remain neutral with a presidential Proclamation of Neutrality.

This led to an internal debate within the administration that was played out in essays published in partisan newspapers. Among them were Alexander Hamilton writing as Pacificus, who urged presidential prerogative over asserting neutrality, and James Madison writing as Helvidius, who thought the Congress had power over war and peace. The debate fueled the emerging contentious party system and split the administration into factions.

The Washington administration pursued a policy of trade and non-interference, but the British and French were at war and began seizing American vessels because they traded with each of the belligerents. Soon, Washington dispatched John Jay to Britain to resolve the seizure of ships, impressment of American sailors into the Royal Navy, and outstanding issues from the Revolutionary War including western British forts.

The resulting Jay Treaty benefited the United States, including some trade concessions in the West Indies, but it did not resolve many of the key issues including impressment. Moreover, it further inflamed partisan tensions among Americans and in Congress. Even worse, as it soothed relations with Great Britain, the French saw it as an Anglo-American alliance aimed against France. The French became more belligerent and ramped up their seizure of American vessels leading to an informal war that continued into the John Adams administration.

In 1795, the administration signed the Pinckney Treaty with Spain which extended the western boundary of the United States to the Mississippi River. Americans also won long-contested rights to free navigation of the Mississippi River to conduct trade.

By the end of his second term, President Washington could proudly survey the diplomatic accomplishments of his administration. From a position of relative weakness, he had averted war, successfully negotiated important treaties, established a strong presidency respecting foreign policy, and placed the country in a stronger position in a dangerous world. As he prepared to retire and worked on his Farewell Address to his fellow countrymen, he used his decades of experience as general and president to lay down certain principles of American foreign policy.

In his Farewell Address, Washington asserted that it should be the policy of the United States to “steer clear of permanent alliances with any portion of the foreign world.” He explained that it should be the principle of the United States to establish “peace, commerce and honest friendship with all nations, entangling alliances with none. The great rule of conduct for us in regard to foreign nations is in extending our commercial relations, to have with them as little political connection as possible.”

Washington promoted an enlightened and principled national self-interest in foreign relations. The United States would pursue its self-interest trading with other nations and forming temporary alliances in its interest. As the French example proved, a nation might be a friend at one point but could become an enemy at another. So, the United States would not form a permanent alliance that would bind it in an untenable situation. Instead, as with all nations, it would pursue its own interest.

However, Washington strikes an important chord of principled self-interest according to the founding ideals of an exceptional nation. In the Address, he speaks of “amity,” “justice,” “liberality,” “good faith,” and “harmony” as the principles guiding American relations with the other countries of the world. He proposed the idea that America should demonstrate a good example for the world. He wrote, “It will be worthy of a free, enlightened, and, at no distant period, a great nation, to give to mankind the magnanimous and too novel example of a people always guided by an exalted justice and benevolence.”

American foreign policy has changed over the last two centuries. Successive administrations through the nineteenth century generally followed Washington’s vision; however, during the twentieth century, President Woodrow Wilson helped commit the United States to “making the world safe for democracy” and exporting it abroad. Wilsonian internationalism meant that the United States would not merely be a “City Upon a Hill” for other countries to emulate its ideals but would take an active role in bringing about more democratic regimes. This expansive and controversial foreign policy was at odds with Washington’s vision in the Farewell Address. George Washington’s words and example reminds us to exercise justice and good faith toward other nations but also defending American national security with enlightened self-interest.

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

 

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Guest Essayist: Joerg Knipprath

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

“to preserve liberty, it is essential that the whole body of the people always possess arms.” – Richard Henry Lee, Federal Farmer XVIII, January 25, 1788.

A significant point of contention in the debates over the proposed United States Constitution was the maintenance of a peacetime army. Some stalwart opponents, like Eldridge Gerry of Massachusetts, wanted a ban on a “standing” army written into the Constitution. Others wanted the text to specify a maximum number and an expressly limited peacetime use, such as for border garrisons. In the minds of many Americans, standing armies were a direct and dire threat to the people’s liberties. Recalling their use by the last Stuart kings and the debate over them in the English Glorious Revolution of 1688, those Americans saw such an army as a tool of monarchical absolutism unfit for a republican system.

Instead, those critics wanted to rely on the militias of the states as the principal armed forces. Militia service long had been the mainstay of colonial self-government. It extended to all men able to bear arms, with some variations as to age and race. Universal service was a practical necessity to suppress insurrections and counter Indian raids. It also maintained the ancient republican connection between military service and qualification to participate in the community’s public affairs. Laws required individuals to keep arms sufficient to serve in the militia and, in some communities, to bear those arms while walking about.

The critics’ alarms about the Constitution were only magnified when they saw that the proposed charter also gave Congress the power to organize, arm, and discipline the militia, and to govern the militia employed in the service of the United States. They considered this to be an obvious attempt to deprive the states of control over their militias by establishing a highly trained national “select militia” composed of only a small portion of the whole eligible militia, in effect creating a standing army by another means. The distinction between the whole militia and a select militia was a common practice at the state level and was also followed by the federal government with the Militia Act of 1792. Although men fifty-five years old might be part of a state’s whole militia, they were unlikely to be called out for actual service at that age. Alternatively, critics charged that these provisions allowed Congress to neglect funding and training the militia altogether.

Supporters of the Constitution pointed to the Revolutionary War to expose the deficiencies in armament and training of the militias. General George Washington wrote the Continental Congress about his wartime experience with the militia:

“To place any dependence on the Militia, is, assuredly, resting upon a broken staff. Men just dragged from the tender Scenes of domestic life; unaccustomed to the din of Arms; totally unacquainted with every kind of military skill, which being followed by a want of confidence in themselves, when opposed to Troops regularly trained, disciplined, and appointed, superior in knowledge and superior in Arms, makes them timid, and ready to fly from their own shadows….”

The general tenor of Washington’s letter reflected a common critique. Alexander Hamilton, a former militia officer who also served in the regular Continental Army, was more generous in Essay No. 25 of The Federalist, but nevertheless made similar points:

“The American militia, in the course of the late war, have, by their valour on numerous occasions, erected eternal monuments to their fame; but the bravest of them know and feel, that the liberty of their country could not have been established by their efforts alone, however great and valuable they were. War, like most other things, is a science to be acquired and perfected by diligence, by perseverance, by time, and by practice.”

It was not enough for the Constitution’s supporters to point out the practical need for a regular army. Thoughtful critics might accept that, but still be alarmed by the danger an army posed to republican liberty. James Madison in Essay No. 46 of The Federalist sought to assuage those concerns:

“Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still, it would not be going too far to say, that the state governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence.”

Madison lay great stock in three facts, that Americans were armed, that they could form themselves into militias that would still be commanded by men chosen by them or their states, and that there existed subordinate governments—the states—to which they were more attached than to the national government. As he wrote, “Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.”

The critics were not persuaded. True, even if Congress set up a select militia, or, worse, if Congress refused to fund the militia, the states could still, under their reserved powers and general principles of federalism, maintain militias outside those parameters. That authority was eventually confirmed by the Supreme Court in 1820 in Houston v. Moore. The problem was what else Congress might do. After setting up a select militia, Congress could, the critics reasoned, then pass laws to disarm the rest of the citizenry. Something else was needed to protect the people’s liberties.

Madison in that same essay had noted the distinction between the American states and other countries. In the kingdoms of Europe with their military establishments, “the governments are afraid to trust the people with arms.” But something more concrete than reliance on the willingness of politicians to trust the people was needed. American politicians are not necessarily and inherently more respectful of the people’s liberties or less prone to oppressive actions than the European versions. If Congress and the President join to form a national tyrant, and the states have been rendered impotent, the people have the right to organize themselves to oppose that tyrant, just as the Minutemen did to King George and his regular army. As the Declaration of Independence averred, each person is endowed by the Creator with certain “unalienable rights,” and each person individually has the right to defend his life and liberty, even if the right as a practical matter sometimes might be carried out collectively. As concerns a tyrannical government, that right normally might be exercised through the state’s formal militia structure, but it does not depend on such a structure.

It is this right of self-defense exercised through a personal right to keep and bear arms that is reflected in the language of the Second Amendment. Supreme Court Justice Joseph Story made that point in a famous passage in his influential 1833 work on the Constitution. “The militia is the natural defence of a free country,” he wrote. “The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers.”

The right to life, including the right to defend oneself and others from those who wantonly pose an imminent threat to that right, is the most fundamental of all rights. No government may deprive an individual of that right, including the right of defense by means reasonable and commensurate to the threat. That right of defense extends to defense of the community. It is an individual right. While, in the latter case, it is usually exercised collectively, that is not a requirement and is not the basis of the right’s existence.

The connection between the individual nature of the right and its practical collective application when used in defense of the community is reflected in the words of the Second Amendment. As the late Justice Antonin Scalia explained for the Supreme Court in D.C. v. Heller, the right protected in the amendment’s operative clause is the individual right to keep and bear arms. The prefatory clause explains the concerns that drove the adoption of the amendment, the right of the people to organize themselves into a militia to resist tyranny even if Congress and supine state governments seek to disarm them.

The formulation of the Second Amendment through a prefatory and an operative clause is unusual among those in the Bill of Rights. But the approach was not uncommon in other settings. The original proposal by James Madison was clearer, but the definition of the right and its distinction from the concerns that gave rise to the amendment are similar: “The right of the people to keep and bear arms shall not be infringed; a well regulated militia being the best security of a free country ….”

Likewise, various state proposals to amend the Constitution followed this structure. Thus, the Virginia convention observed in relevant part on June 27, 1788, “That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit ….” Lest the formulation “the people” suggest only a collective right, that same term was used by the Virginia convention to define the right of the people to freedom of speech and of writing and publishing their sentiments. Yet such a right is clearly one that is exercised individually.

Other state ratifying conventions generally used the same structure for various proposed amendments. The report of the Pennsylvania Minority declared, “That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals, and as stranding armies in the time of peace are dangerous to liberty they ought not to be kept up ….”  The New York convention urged, “That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defence of a free State ….” [Emphasis in the original.]

What if there were no Second Amendment? Ultimately, that would make no difference. The right to life and self-defense is a fundamental or natural right conferred not by the Constitution as a matter of political grace but, in the language of the Declaration of Independence, by the Creator. It is a long-recognized right inherent in each human that even as fervent an apologist for powerful government as Thomas Hobbes accepted. As to the right to defend the community by organizing a militia, that is exactly what the colonists did at Lexington and Concord when the British sent a military force to seize American weapons. It was this engagement that started the Revolutionary War and led directly to the Declaration of Independence with its endorsement of armed resistance to tyrannical government.

The Supreme Court has embraced this reasoning as to state and local laws in cases such as McDonald v. Chicago. After all, the Second Amendment, like the rest of the Bill of Rights, only applies to the federal government. States and cities are, however, limited by the Fourteenth Amendment, which includes protection against legislative violation of fundamental rights of life, liberty, and property. The rights to individual and collective self-defense, including the right to keep and bear arms and the right to organize a militia, are integral to all three.

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

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

“One nation, under God, indivisible, with liberty and justice for all.”[i]

As most Americans know, our pledge to the American flag concludes with those words; where did that phrase come from?

We owe a minister named Francis Bellamy for the original inspiration for our pledge. Bellamy went to work for a Boston-based magazine: Youth’s Companion[ii] which was published from 1827–1929, an impressive 102-year run. Bellamy’s pledge was not exactly what we recite today: it originally read “my flag” without saying whose or what nation’s flag was the object of the pledge. That was rectified in 1932 when “of the United States of America” was substituted.

The phrase “under God” was added in 1954 by an act of Congress[iii] at the urging of President Dwight D. Eisenhower, who was responding to citizen petitions.

Is America in fact “one nation under God?” Well, certainly we are – in one respect we cannot not be; the sovereign God overlooks our affairs whether we would like Him to or not, whether we acknowledge his presence or not, whether we worship Him or ignore Him. In that sense the phrase is true and will always be true. But let’s pick the phrase apart a bit.

There is disagreement on this point today,[iv] some arguing that America is a country and/or a federation or union of sovereign states, and not a nation. Some point to the fact that the word “union” appears six times in the Constitution; “foreign nations” and “the law of nations” are the only use of the word “nation” and neither refers directly to the United States. But the evidence is strong that the most prominent of America’s Founding Fathers considered us a true nation.

After the Constitution went into effect with the ninth ratification, various Founding Fathers did refer to “the Union” in speeches and letters, but they frequently used the word “nation” as well.

Alexander Hamilton compared us with “other nations” almost incessantly as Washington’s Secretary of State. But his boss used the word nearly as much. In fact, George Washington can rightfully be called one of the strongest nationalists of the founding era.

Even before the Constitution was ratified, Washington, as a private citizen albeit a celebrated one, wrote a circular letter to the Governors of the several states. He ended the letter by stating:

“I now make it my earnest prayer, that God would have you, and the State over which you preside, in his holy protection; that he would incline the hearts of the citizens to cultivate a spirit of subordination and obedience to Government; to entertain a brotherly affection and love for one another, for their fellow citizens of the United States at large; and, particularly, for their brethren who have served in the field; and finally, that he would most graciously be pleased to dispose us all to do justice, to love mercy, and to demean ourselves with that charity, humility, and pacifick temper of the mind, which were the characteristicks of the divine Author of our blessed religion; without an humble imitation of whose example, …, we can never hope to be a happy Nation.”[v]

In his first inaugural address, drafted by his friend and new Congressman, James Madison, Washington said:

“No People can be bound to acknowledge and adore the invisible hand, which conducts the Affairs of men more than the People of the United States. Every step, by which they have advanced to the character of an independent nation, seems to have been distinguished by some token of providential agency.”[vi]

In his first Thanksgiving Proclamation as President, Washington began by insisting that “it is the duty of all Nations to acknowledge the providence of Almighty God, to obey his will, to be grateful for his benefits, and humbly to implore his protection and favors.” Wouldn’t it be fitting and proper to read President Washington’s Thanksgiving proclamation each year at church on that holiday?

To a Jewish congregation in Savannah, Georgia, President Washington wrote:

that Jehovah God, who had delivered the Hebrews from their Egyptian Oppressors … has been conspicuous in establishing these United States as an independent Nation.”[vii]

James Madison called us a nation;[viii] Thomas Jefferson,[ix] James Wilson,[x] John Adams and John Jay[xi] did as well.

There is no doubt America’s Founding Fathers viewed us as “a nation under God;” and for them, that meant the God of the Bible. Donald Lutz, professor of political science at the University of Houston, reports: “Scholars in recent years seem to have forgotten the degree to which religious ideas permeated the political world of the seventeenth and eighteenth centuries.”[xii]

Carl Sandburg, a Pulitzer Prize winning poet and author, once wrote: “When a nation goes down, or a society perishes, one condition may always be found; they forgot where they came from. They lost sight of what had brought them along.”[xiii]

I’ll conclude with the words of Ronald Reagan, who said: “If we ever forget we are one nation under God, we will be a nation gone under.”[xiv]

The United States can never be a nation that is not “under God.” We can either be a nation that acknowledges that fact and seeks God’s superintending care, one that humbly asks God to heal our land,[xv] or we can be a nation that insists on going it alone. The choice is ours.

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people. CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text. Gary presents talks on various Constitutional topics, writes periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

[i] https://www.ushistory.org/documents/pledge.htm.

[ii] http://youthscompanion.com/.

[iii] https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title4-section4&num=0&edition=prelim.

[iv] https://mises.org/wire/united-states-not-nation-problem-national-conservatism

[v] https://founders.archives.gov/documents/Washington/99-01-02-11404.

[vi] https://teachingamericanhistory.org/document/first-inaugural-address-gw/.

[vii] https://founders.archives.gov/documents/Washington/05-05-02-0279.

[viii] James Madison, Federalist #46: “Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.”

[ix] Thomas Jefferson, Notes in the State of Virginia: “God who gave us life gave us liberty. And can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are a gift from God? That they are not to be violated but with His wrath? Indeed I tremble for my country when I reflect that God is just, and that His justice cannot sleep forever.”

[x] James Wilson, Remarks at the Pennsylvania Ratifying Convention, November 26, 1787: “Governments, in general, have been the result of force, of fraud, and accident.  After a period of 6,000 years has elapsed since the creation, the United States exhibit to the world the first instance…of a nation…assembling voluntarily…and deciding calmly concerning that system of government under which they would wish that they and their posterity should live.”

[xi] John Jay, Federalists #2: “As a nation we have made peace and war; as a nation we have vanquished our common enemies; as a nation we have formed alliances, and made treaties, and entered into various compacts and conventions with foreign states.”

[xii] Donald S. Lutz and Jack Warren, A Covenanted People; The Religious Tradition and the Origins of American Constitutionalism. 1987.

[xiii] https://www.brainyquote.com/quotes/carl_sandburg_400796.

[xiv] https://www.reaganlibrary.gov/archives/speech/remarks-ecumenical-prayer-breakfast-dallas-texas.

[xv] See: 2 Chronicles 7:14.

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Guest Essayist: Joerg Knipprath

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

The principle of establishing justice through the rule of law is a means of guarding against gradual erosion of law and order into chaos to break down America’s system of self-governing. It guards against eventually ushering in tyranny to control the people rather than protect liberty by protecting the rule of law.

“…you seem…to consider the judges as the ultimate arbiters of all constitutional questions: a very dangerous doctrine indeed and one which would place us under the despotism of an Oligarchy. our judges are as honest as other men, and not more so. they have, with others, the same passions for party, for power, and the privileges of their corps. their maxim is ‘boni judicis est ampliare jurisdictionem,’ and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective controul. the constitution has erected no such single tribunal knowing that, to whatever hands confided, with the corruptions of time & party it’s members would become despots.” – Thomas Jefferson in a letter to William Charles Jarvis, Monticello, September 28, 1820.

The quoted passage by Thomas Jefferson addresses an issue that has been a repeated topic of controversy since the United States Constitution was proposed to the state conventions, namely, the role of the unelected federal courts in a system grounded in popular consent and self- government. Courts are supposed to apply the law prescribed by the people’s representatives but not be swayed by popular opinion in particular cases. An independent judiciary long has been recognized in Western constitutionalism as a fundamental component of any political system which takes seriously the individual liberties of its citizens. In ordinary criminal cases or civil suits the role of the courts as guardians of individual rights and as dispassionate decision-makers is indisputable. In cases of constitutional law and judicial review of the constitutionality of the acts of elected officials, the matter becomes more ambiguous.

Such cases are inherently political in that they present a challenge to self-government and call into question the particular competence of judges to resolve them. True, some topics, such as foreign affairs, are more political than others, such as specific guarantees of individual rights. But, as has been noted by various writers, each time a court strikes down a law, that action can be seen as a blow against self-government. When the Supreme Court decides a constitutional law case, the holding affects the entire country, not just the specific litigants. Moreover, those litigants often do not represent the opinions of a popular majority on the issue. To be consistent with the fundamental republican principle of majority rule, should unelected courts be making such decisions at all, then?

Abraham Lincoln made the point succinctly in his first inaugural address when he pledged non-interference with the specific decision in the Dred Scott case about Scott’s inability to sue for his freedom but also declared, “At the same time, the candid citizens must confess that if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.” Clearly, our constitutional system has decided that judges ordinarily should make such decisions, but the inherent contradictions among first principles created thereby do not disappear.

Republican government is premised on the idea that the people, or some portion thereof deemed sufficiently qualified, decide the important public matters. Unlike in a democracy, they do so through representatives selected by them directly or, in the original design for the Senate and the President, more circuitously. Should a 5-4 majority of the unelected Supreme Court effectively have the final word, or should a majority of the people’s representatives have the power to override the Court’s holding on the matter? This is a particular problem in that the Supreme Court is selected from a very small class in society, an elite whose cultural and political values differ sharply from those of the American people as a whole. Should federal judges be elected, rather than appointed? Indeed, considering the classic republican principle that the greater the power, the shorter the term in office in order to avoid oligarchic control, should federal judges serve very short terms before returning to their ordinary stations in life? In turn, would such alternatives adequately preserve the necessary independence of judges?

All these questions were raised by various Anti-federalist writers during the debate over the adoption of the Constitution. The potential life tenure of federal judges was a glaring red flag for critics of the proposed charter. As a textual matter, the Constitution fixes their tenure by “good behavior,” but that ambiguous concept itself was tied to the practice of impeachment. Because impeachment in England had come to be seen as a limited tool requiring something more than political disagreement or general unpopularity, the Constitution expressly provided specific, and quite restricted, grounds for removal of officers by that method, effectively creating “life tenure.” But Antifederalist attacks on the federal courts were not limited to the issue of life tenure. Although the Constitution is silent on the matter, the opponents soon focused on the perceived ability of the Supreme Court to sit in judgment of the constitutionality of the actions of the people’s representative in Congress and the state legislatures.

A very sophisticated attack on the Supreme Court appeared in 1787 and 1788 in various essays of Brutus, one of two pen names generally attributed to the New York judge, and eventual state chief justice, Robert Yates. Yates had been selected as one of New York’s three delegates to the Philadelphia Convention but, along with Judge John Lansing, Jr., had left that assembly early because he objected to the nationalizing tendencies he saw in the emerging draft. His essays were authoritative during the debates in the critical New York ratifying convention.

In Essay No. 11, published January 11, 1788, Brutus observed that Article III, Section 2, of the Constitution vests the power to determine all questions that may arise under the Constitution. He questioned whether that power would be used for the general good. He explained his concerns, “[I[n their decisions, they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or controul their adjudications. From this court there is no appeal. And I conceive the legislature themselves, cannot set aside a judgment of this court, because they [the judges] are authorised by the constitution to decide in the last resort.”

Brutus worried that the federal courts would interpret the Constitution’s often ambiguous language broadly in favor of the general government to the eventual “subversion of the legislative, executive, and judicial powers of the individual states.” Applying the history of the English court of exchequer, he charged that the courts would extend their jurisdiction and influence well beyond that understood at their creation. “Every body of men invested with office are tenacious of power; they feel interested, and hence it has become a kind of maxim, to hand down their offices, with all its rights and privileges, unimpaired to their successors; the same principle will influence them to extend their power, and increase their rights; this of itself will operate strongly upon the courts to give such a meaning to the constitution in all cases where it can possibly be done, as will enlarge the sphere of their own authority. Every extension of the power of the general legislature, as well as of the judicial powers, will increase the powers of the courts; and the dignity and importance of the judges, will be in proportion to the extent and magnitude of the powers they exercise. I add, it is highly probable the emolument of the judges will be increased, with the increase of the business they will have to transact and its importance.”

In Essay No. 15, published March 20, 1788, Brutus again addressed the danger to the people’s liberty and to the existence of the state governments from the lack of any control over the constitutional rulings of the Supreme Court. “There is no power above them, to controul any of their decisions. There is no authority that can remove them, and they cannot be controuled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.”

For Brutus, the solution would have been to make such Supreme Court rulings subject to review by the legislature, much as English court holdings often were subject to review by the House of Lords. “Had the construction of the constitution been left with the legislature, they would have explained it at their peril; if they exceed their powers, or sought to find, in the spirit of the constitution, more than was expressed in the letter, the people from whom they derived their power could remove them [through elections], and do themselves right; … A constitution is a compact of a people with their rulers; if the rulers break the compact, the people have a right and ought to remove them and do themselves justice; but in order to enable them to do this with the greater facility, those whom the people chuse at stated periods, should have the power in the last resort to determine the sense of the compact; if they determine contrary to the understanding of the people, an appeal will lie to the people at the period when the rulers are to be elected, and they will have it in their power to remedy the evil; but when this power is lodged in the hands of men independent of the people, and of their representatives, and who are not, constitutionally, accountable for their opinions, no way is left to controul them but with a high hand and an outstretched arm.” [Emphasis in the original.]

The convincing effect those and similar other critical essays Yates wrote had on New Yorkers finally prompted Alexander Hamilton to write a response published on May 28, 1788, just ahead of the meeting of the New York ratifying convention on June 17. Essay No. 78 of The Federalist is among the longest of the papers and the one most frequently cited by the Supreme Court. Hamilton agreed with Yates that the federal courts would interpret the Constitution, because the Constitution being law, it “is the proper and peculiar province” of them to do so. Because judges owed their powers to the Constitution, just as did the legislators, the courts would, and must, disregard statutes which conflicted with the fundamental law of the Constitution. Hamilton dismissed Yates’s contention that this implied a superiority of the judicial branch, claiming instead that “[I]t is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.” Thus, Hamilton laid the groundwork for an independent federal judiciary in matter of constitutional law.

As his quoted letter attests, Jefferson shared Yates’s concerns and discomfort about the federal courts, especially the Supreme Court’s power of constitutional judicial review. Jefferson believed that the rule of law and the fundamental structure of a government of divided powers created under the Constitution was best served under a “departmental theory” of final authority. While the Supreme Court might have the final say as to how the courts will decide cases, their opinions about the constitutionality of a co-equal branch’s acts, although entitled to respect, were not binding on those other branches. The remark from Lincoln’s first inaugural speech, quoted above, is an application of that theory. So is the admonition, perhaps apocryphal, attributed to President Andrew Jackson on the occasion of an unpopular opinion by Chief Justice John Marshall in Worcester v. Georgia, “John Marshall has made his decision, now let him enforce it.”

Hamilton was not insensitive to such criticisms in his essay. He adamantly insisted that the judges’ life tenure was necessary to preserve their independence. Still, the scope of the courts’ constitutional judicial review must be limited. He wrote, “To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; …” The rule of law demands that such rules be clear and constant, knowable, and predictably applied. This was particularly important with the Constitution, which was “law” because it was written. Therefore, it was the letter of the document, not some vague notion of its “spirit” that the courts must apply, lest their opinions become exercises of “WILL instead of JUDGMENT,” which would merely be the “substitution of their pleasure to that of the legislative body.” [Emphasis in the original.]

Moreover, courts could disregard only those statutes which were clearly unconstitutional.

“If there should happen to be an irreconcilable variance between the two [a statute and the Constitution], that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.” Using tortuous arguments to discover theretofore unknown penumbras and emanations from constitutional language, or investing that language with personal notions of good policy or better morality would not suffice.

Finally, Hamilton laid down a crucial limitation by specifying the object of constitutional judicial review. Judges must be independent and zealous protectors of liberty rooted in law. But there was a limit to judicial independence, lest it become itself a threat to republican rule. “This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors [tempers], which the arts of designing men or the influence of particular conjunctures sometimes disseminate among the people themselves; and which, though they speedily give place to better information and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.” Judicial review was to be conservative, in the sense of protecting the received constitutional order from the excesses of momentary popular passions as well as from “the cabals of the representative body.” That, too, is consistent with the order provided by the rule of law. It is also consistent with republican self-government, as it merely seeks to slow down a heedless rush to action by allowing for further reflection and the triumph of reason.

What is not consistent with republican self-government and legitimate Hamiltonian judicial review is when the judiciary assumes the role of constitutional innovator. For example, when the Supreme Court abruptly overturns long-settled and widespread laws that affect basic institutions of society or traditional social relations, the justices are exercising independence. But they are not guarding the liberty of individuals or political minorities from temporary majoritarian passion. They are, in effect, amending the Constitution by a simple majority vote of one branch of government composed of a few members enjoying life tenure, the branch that has no accountability to the public and is drawn from a very small elite. That is consistent with neither the stability and predictability associated with the rule of law nor republican self- government. In taking such actions, the Court assumes the role of a constitutional convention.

Relying on the postulate of popular sovereignty, Hamilton, Madison, and other supporters of the Constitution emphasized as a first principle the people’s right to change their constitutions at any time and for any reason. Such innovations should not be undertaken lightly, and at least as codified in Article V of the Constitution, require a difficult super-majoritarian process involving multiple governmental bodies, radically different from judicial constitutional amendment by a 5-4 vote.

There is much to admire in a culture which has preserved for so long an independent judiciary within its constitutional structure. One hopes that this remains the norm, and that voices who have suddenly now discovered a political advantage from changing the rules of the game will go unheard. The Supreme Court has warranted the respect it has enjoyed overall as an institution, because in most cases the justices have performed their roles with wisdom and sagacity. But they are political actors, and their judgment has not been infallible. To preserve that respect and the independence required to counteract majoritarian passions when the need arises, the Court is well-advised to stay true to its role as the guardian of the rule of law and the received Constitution, not as a constitutional lawgiver leading a compliant people.

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

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Guest Essayist: J. Eric Wise
United States Congress, House Floor, United States Capitol, Washington, D.C.

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

Almost 250 years ago, on December 16, 1773, American colonists dressed as Mohawk Indians dumped tea into Boston Harbor protesting under a rallying cry of “No taxation without representation.” We call this the Boston Tea Party.

23 years ago, in May of 2000 Washington, D.C. changed the design of its license plates replacing the words “Discover and Celebrate” with “Taxation Without Representation.” This memorialized D.C. residents’ grievance that they have no voting representatives in Congress.

Suffice it to say, the principle of representation is an enduring opinion that is at the heart of what it means to be an American. But like many such opinions that spring from what Abraham Lincoln called “the mystic chords of memory” does anyone really know, concretely, what it means?

To understand, perhaps it helps to think about concepts of sovereignty. For the most part after the end of the Roman Republic most of Europe was ruled by kings or emperors. They ruled on a religious, revealed, and practical basis known as divine right of kings.

Derived from the Bible and history, divine right of kings relied on the authority of Abraham over his children, the authority of anointed kings beginning with Saul and David, and the authority of Caesar over Rome and its dominions. A single person embodies the sovereign for subjects, and that person’s authority comes down from divinely sanctioned anointing, according to hereditary rules and conquest.

The Scottish protested the oppressions of the English king, Edward II. In the Declaration of Arbroath, the Scottish appealed to their own divine right of kings through conquest.

“The Britons they first drove out, the Picts they utterly destroyed, and, even though very often assailed by the Norwegians, the Danes and the English, they took possession of that home with many victories and untold efforts.”

Contradictions aside, that was how most of Europe thought about the question of just government.

But did this mean they had no representation? To the contrary, when the English nobles at Runnymede in 1215 forced the king to sign the Magna Carta, representation in parliament became part of the English system of government though that system remained clearly under the notion of the divine right of kings. The French, whose monarchy was more absolute, had the Estates General, beginning in 1302 A.D. The German principalities of the Holy Roman Empire had the Imperial diet, as early as 777 A.D.

If there is any doubt about the compatibility of divine right of kings and representation note that the Mayflower Compact, organized to authorize the colonial pilgrims to frame “just and equal laws,” begins with the identification of the signers as “the loyal subjects of our dread sovereign Lord King James.”

But compatibility is not the same thing as perfection, and at some point after the Protestant Reformation, new ideas about the authority of men over their conscience in the concept of the “priesthood of every believer” [presbyterii fidelium] led to new ideas about the authority of men over their own government.

In Connecticut, in the 1600s, the Reverend Thomas Hooker established in his sermons consent as the basis of government rather than divine right of kings. “The foundation of authority is laid firstly in the free consent of people,” he propounded from the pulpit. And in 1639, he drafted the Fundamental Orders governing Windsor, Hartford and Wethersfield, the first charter government in the New World that did not appeal to the authority of a king for its basis in justice. Reverend John Wise of Massachusetts would preach and protest in 1687 against the imposition of taxation without representation. President Calvin Coolidge would later praise Reverend John Wise as an inspiration of the Declaration of Independence.

One should observe that the positions of Hooker preceded Thomas Hobbes’ theoretical writing on consent in Leviathan by more than 11 years, and John Locke’s theoretical writing on consent in Two Treatises by 50 years. Should anyone tell you the foundations of American notions of consent were dreamed up by theoreticians or first came to mind in 1776, correct them. Theory backfilled the practice and ethos that had taken root and was growing in America from the very start.

By the time the American Revolution rolled up on the English, Americans had been thinking about government and justice in terms of consent for more than 100 years. The Declaration of Independence reiterated and memorialized this, stating “Governments are instituted among Men, deriving their just powers from the consent of the governed.”

But consent requires renewal, and this implied that the practice of the colonists of electing their representatives would continue under the new forms of government of the new nation. Every election is a reflection of the principle of consent, which is not just compatible with consent but a microcosm of a broader conception of the universe. God chooses us; we choose our form of government; we choose to renew it through amendment of its form; we choose our representatives in our form of government.

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

 

 

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Guest Essayist: Tara Ross

 

Essay Read by Constituting America Founder, Actress Janine Turner

 

“[The President] will, under this Constitution, be placed in office as the President of the whole Union, and will be chosen in such a manner that he may be justly styled the man of the people.” – James Wilson, Speech at the Pennsylvania Ratifying Convention (December 4, 1787).

“It was also peculiarly desirable, to afford as little opportunity as possible to tumult and disorder. This evil was not least to be dreaded in the election of a magistrate, who was to have so important an agency in the administration of the government, as the president of the United States.” – Alexander Hamilton, Federalist No. 68

America’s founding generation gets a bad rap these days, and the presidential election system they created, if anything, receives even less respect.

News outlets blast the Electoral College as “terrible, skewed, [and] anachronistic.” The system was allegedly created because of slavery, one prominent critic writes, and it was intended to “help one group—white Southern males.” Others claim the system is anti-democratic, created by aristocratic white men who wanted to dilute the voices of the masses because they believed “ordinary citizens . . . too poorly informed to choose wisely.”

To listen to these critics, free and fair presidential elections will not exist until the Electoral College is eliminated, replaced by a national popular vote.

Except none of it is true. The reality is that the delegates to the Constitutional Convention strove to design a system that would accurately reflect the will of the people, knowing that the new United States government would be a miserable failure if the people’s voice was not expressed at election-time.

George Mason, delegate from Virginia, emphasized that “the genius of the people must be consulted.” Pennsylvania delegate James Wilson agreed that “[n]o government could long subsist without the confidence of the people.” Governmental authority, he concluded, must “flow immediately from the legitimate source of all authority. . . the mind or sense of the people at large. The Legislature ought to be the most exact transcript of the whole Society.”

This sentiment was just as strong when it came to election of the President.

“It was desireable, that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided,” Alexander Hamilton concluded.

Yet what does it mean to reflect the “sense of the people” in a nation composed of both large and small states, as well as many religions, industries, and subcultures? How can both rural and urban areas be represented? The questions are difficult. After all, the President is the only elected official expected to represent every single American, from every walk of life, simultaneously.

A simple national popular vote for President would be too easily manipulated, the delegates to the Convention concluded, ensuring that large states and heavily populated areas are over-represented while small states are ignored.

“An Election by the people [is] liable to the most obvious & striking objections,” Charles Pinckney of South Carolina observed. “They will be led by a few active & designing men. The most populous States by combining in favor of the same individual will be able to carry their points.” Roger Sherman, delegate from Connecticut, echoed this concern: “[The people] will generally vote for some man in their own State, and the largest State will have the best chance for the appointment.”

The Founders knew that a unique presidential election process would be needed to reflect the “sense of the people” in such a large, diverse country. Thus, they created our Electoral College: Its state-by-state election process requires presidential candidates to obtain more than just a simple majority, too heavily focused on one part of the country. Instead, candidates must obtain cross-regional support and federal majorities to win.

“[The President] is now to be elected by the people,” James Madison concluded. James Wilson, delegate from Pennsylvania, agreed that the President “will, under this Constitution, be placed in office as the President of the whole Union, and will be chosen in such a manner that he may be justly styled the man of the people.”

It’s an important point: The Electoral College seeks the fairest solution for the whole Union, not merely one part of it.

The Electoral College supports the principle of fair and free elections in a second way that often goes unnoticed. The system minimizes fraud and provides “as little opportunity as possible to tumult and disorder,” as Alexander Hamilton wrote.

Because of its state-by-state structure, the Electoral College typically produces quick and undisputed outcomes. When problems do occur, they are isolated to one or a handful of states, where they can be more easily resolved. Fraud is minimized because it is hard to predict where stolen votes will matter.

The election of 2020 proved—again—the ability of the Electoral College to provide stability when chaos threatens to reign. Because of the system, problems were isolated to a few states such as Michigan, Pennsylvania, and Wisconsin. Moreover, problematic areas such as Detroit and Philadelphia were highlighted.

Such transparency would not have occurred without the Electoral College. In a national popular vote system, local difficulties could have been glossed over, lost in the glare of the large 7-million national popular vote margin. As things stand today, however, state legislators have an opportunity to investigate and fix local problems, as needed.

An American historian once described the Founders’ conclusions about their presidential election system: “[F]or of all things done in the convention,” Max Farrand wrote, in his book, The Framing of the Constitution of the United States (2022), “the members seemed to have been prouder of that than of any other, and they seemed to regard it as having solved the problem for any country of how to choose a chief magistrate.”

Indeed, the Electoral College has done more to protect fair and free elections in America than the Founders could possibly have imagined.

Tara Ross is a retired lawyer and the author of several books about the Electoral College, including Why We Need the Electoral College (Regnery Gateway).

Guest Essayist: Joerg Knipprath

 

Essay Read by Constituting America Founder, Janine Turner

 

There are however some things deducible from reason, and evidenced by experience, that serve to guide our decision upon the case. The one is never to invest any individual with extraordinary power; for besides his being tempted to misuse it, it will excite contention and commotion in the nation for the office. Secondly, never to invest power long in the hands of any number of individuals. The inconveniences that may be supposed to accompany frequent changes are less to be feared than the danger that arises from long continuance.” – Thomas Paine, Dissertation on First Principles of Government, 1795.

Advocates of republican systems long have insisted on certain features in a government to qualify it as a republic. Among those are the right to vote vested in a variable, yet sufficiently substantial, portion of adult residents, the election of the important figures in government, regular elections, short terms for those elected, rotation in office through restrictions on re-election, and the right of voters to recall elected officials. The objectives of these conditions are to keep the governing members responsive to the people’s wishes, to promote fresh blood in positions of authority, and to allow more persons to participate in governing, thereby bestowing legitimacy on the system even in the eyes of those who may lose a particular political contest.

The opponents of the United States Constitution found much to criticize in what they saw as the deficient republicanism of the proposed charter. Colonial practice had been annual or even semi-annual terms for legislators. Early state practice generally continued that tradition, although some permitted longer terms for the upper house of a bicameral legislature. Annual or biennial terms became the norm for governors. For example, the Massachusetts Constitution of 1780 provided that the governor, lieutenant governor, and senators and representatives in the state legislature be elected annually. The Virginia constitution of 1776 provided for annual election for the House of Delegates, the lower house of the state legislature, but allowed four-year terms for state senators, the terms ending on a rotating basis, with one-quarter of senate offices up for election each year. The governor was elected annually. He could be re-elected for three terms but then became ineligible for re-election for at least four years.

At the level of the national government, the Articles of Confederation left the precise mode of choosing delegates to the states, but limited their terms in Congress to three years in six. Virginia, for example, chose its delegates to the Confederation Congress anew annually. The Northwest Ordinance of 1787, enacted by the Confederation Congress to govern the Old Northwest territory also required annual election to the territorial legislature.

It is today taken for granted that only citizens might vote. But that was not always the American practice. The Constitution requires citizenship for those elected to either house of Congress and to the Presidency. But there is no similar qualification required for those doing the electing. The Constitution left it to the states to sort out. The Massachusetts Constitution of 1780, for example, discussed voting by “inhabitants” and imposed age, residency, and property qualifications, but not separate citizenship.

Nor was there a lack of awareness of the concept of citizenship versus residency. The Northwest Ordinance provided that voting for territorial representatives was open to two classes: those who were citizens of other states, had resided in the territory for one year, and owned a specified amount of property; and those who were not citizens, but had resided in the territory for three years, and owned the same specified amount of property. The Ordinance made a similar distinction between citizens and non-citizens for candidates for election to the territorial legislature.

States generally allowed non-citizens to vote well into the 19th century to attract immigrants. It is a common trope in historical accounts to write about urban political machines whose operatives at election time waited at the docks to welcome those fresh off the ships from Europe with job opportunities, a small gift, and a voting card filled out in favor of their benefactors. At the level of presidential elections, it was not until the election of 1928 that all states restricted voting to American citizens. Even today, about a dozen municipalities, mostly in Maryland, allow non-citizens to vote in local elections.

While there was no significant debate about citizenship for voting, the length of terms of office was a matter of significant contention at the convention in Philadelphia and in the state ratifying conventions. The Constitution’s supporters tried different approaches to blunt attacks. One was to cherry-pick the length of terms of particular state offices or offices in Great Britain. As to the two-year terms of the House of Representatives, James Madison in No. 53 of The Federalist agreed that there must be frequent elections, but “what particular degree of frequency may be absolutely necessary for the purpose, does not appear to be susceptible of any precise calculation,…” Thus, a range of terms of service reasonably would be sufficiently republican.

To illustrate his point, Madison contrasted the terms of the lower houses of various state legislatures:

“In Connecticut and Rhode Island, the periods are half-yearly. In the other states, South Carolina excepted, they are annual. In South Carolina they are biennial; as is proposed in the federal government. Here is the difference as four to one, between the longest and the shortest periods; and yet it would be not easy to show, that Connecticut or Rhode Island is better governed, or enjoys a greater share of rational liberty, than South Carolina;…”

If anything, shorter terms were undesirable, in that they encouraged electoral fraud, a concern not unheard of today: “[S]purious elections cannot be investigated and annulled in time for the decision to have its due effect….Hence a very pernicious encouragement is given to the use of unlawful means, for obtaining irregular returns.” It might be added that representatives complain that, even with modern transportation, two-year terms are burdensome because they need to spend so much time campaigning for re-election. It should be noted that these complaints have increased as the members of Congress have become full-time legislators and the size of the government has expanded.

Even if long terms of office might be undesirable as a matter of general consideration, there might be more justification for a longer term in Congress than in state or local legislative councils. National affairs regulated by Congress require greater acquisition of knowledge of complex policies and of the needs of other states. Hence, more time is needed to become sufficiently familiar with these complexities, whereas in a state the laws are uniform and the people and their needs are less diversified. In the end, Madison argued, “the business of federal legislation must continue so far to exceed, both in novelty and difficulty, the legislative business of a single state, as to justify the longer period of service assigned to those who are to transact it.”

The six-year terms for Senators came in for especially harsh criticism. Madison and other Federalists frequently defended the Senate’s long terms on two grounds, the need for a stabilizing influence over the popular passions likely to influence the short-term focus of the more democratic House of Representatives, and the Senate’s role in the potentially complex matters of foreign relations. After a brief attempt to analogize the terms of office of United States Senators to the five-year terms of senators in the state of Maryland, Madison in Essay No. 63 of The Federalist emphasized the role of the Senate as a stabilizing influence on the House of Representatives both by taking a “longer” view on policy and because of the “propensity of all single and numerous assemblies, to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions.” As well, there was the Senate’s function in foreign affairs which required sophistication, wisdom, and knowledge. Moreover, longer terms gave that body the stability to provide a “national character” needed for the United States to be effective in dealings with foreign nations.

The critics were not convinced. Even moderate opponents saw the Senate’s terms as dangerous. In Essay of Brutus No. 16 of April 10, 1788, the New Yorker Robert Yates agreed that the Senate’s stabilizing role and its tasks in foreign affairs required longer terms than those of the typical state legislature or of the House of Representatives. Yates also agreed that the Senate was to represent the country’s “natural” aristocracy. But the danger to republicanism remained. “Men that hold office for long become detached from their constituents.” This is especially a problem with the Senate, as “they will for the most part of the time be absent from the state they represent, and associate with such company as will possess very little of the feelings of the middling class of people. For it is to be remembered that there is to be a federal city, and the inhabitants of it will be the great and the mighty of the earth.” [Emphasis in original.]

The solution for Yates and for his fellow New York Anti-federalist Melancton Smith, writing as The Federal Farmer, was to reduce the term to four years. In addition, there must be rotation in office—Yates proposed a limit of three terns for Senators—and recall as existed in the Articles of Confederation. Otherwise, the reality will be that Senators will be reelected over and over for life, due to the influence of their “friends.” “Everybody acquainted with public affairs knows how difficult it is to remove from office a person who is long been in it. It is seldom done except in cases of gross misconduct. It is rare that want of competent ability procures it.”

The concerns of the Constitution’s critics found their way into proposals for reform even as the states approved the new plan of government. Among the list of proposed amendments from the Virginia convention sent on June 27, 1788, was one that called for rotation in office as a very useful tool to limit the potential threat to the people’s liberty from an entrenched political class: So that members of legislative and executive branches “may be restrained from oppression by feeling and participating the public burdens, they should, at fixed periods, be reduced to a private station, return into the mass of the people, and the vacancies be supplied by certain and regular elections,…”

None of the proposals have been adopted. Senate terms are still six years. There is no rotation in office, and an attempt by the people of Arkansas to provide “term limits” for members of both houses of Congress elected in Arkansas was struck down as unconstitutional by the United States Supreme Court. Likewise, an attempt by people in New Jersey even to collect signatures to allow a recall vote for a Senator was blocked by the state supreme court as unconstitutional. Meanwhile, members of Congress, especially Senators, generally hold office for decades, often until death. It is common for them to be “absent from the state they represent.” They live in the “federal city,” returning to their states only at election time. The environs of the District of Columbia include the wealthiest areas of the United States, so it may also be rightly said that they associate with “the great and mighty of the earth,” who “possess very little of the feelings of the middling class of people.”

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

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Guest Essayist: Joerg Knipprath

 

Essay Read by Constituting America Founder, Janine Turner

 

The Framers of the United States Constitution considered ex post facto laws and bills of attainder so repugnant to justice that the document expressly bans them twice. In Article I, Section 9, the prohibition applies to the federal government. The subsequent section of the charter likewise targets state enactments. These provisions are a proto bill of rights in the body of the original document, which makes them unusual in that opponents of the Constitution often cited the lack of a bill of rights as the reason for their stance. Still more thought-provoking is the claim often made then that such laws would be invalid even without an express constitutional provision. That position required its advocates to appeal to higher principles of justice or law as limiting the power of legislatures.

Emblematic of that approach was the opinion of Justice Samuel Chase in the 1798 case of Calder v. Bull. The suit involved a Connecticut case in which a will initially had been denied probate, to the benefit of certain of the deceased’s heirs at law, Mr. and Mrs. Calder. The state legislature then enacted a law which provided for a new hearing that was not permitted under the statute in effect when the original proceedings were held. The will was then admitted to probate, which benefitted the beneficiaries under that will, Mr. and Mrs. Bull.

Justice Chase defined ex post facto laws as,

“1st. Every law that makes an action done before the passing of the law and which was innocent when done, criminal and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the offender.”

He also gave examples of English precedents to illustrate the dangers of such laws. Bills of attainder were acts of Parliament that imposed the death penalty on an individual for a criminal act. If Parliament imposed a lesser penalty, the law was a bill of pains and penalties. Either one was odious. Often, but not always, they operated ex post facto:

“These acts were legislative judgments; and an exercise of judicial power. Sometimes they respected the crime, by declaring acts to be treason, which were not treason, when committed; at other times, they violated the rules of evidence (to supply a deficiency of legal proof) by admitting one witness, when the existing law required two; by receiving evidence without oath; or the oath of the wife against the husband; or other testimony, which the courts of justice would not admit; at other times they inflicted punishments, where the party was not, by law, liable to any punishment; and in other cases, they inflicted greater punishment, than the law annexed to the offence.”

But Chase went further and declared that a legislature could not pass bills of attainder or other ex post facto laws, even if there were no express constitutional prohibition. He urged that such laws were against the social compact through which people enter into political society and against fundamental principles of free republican government. A legislature that undertook such an action might engage in an “act” but had not made a “law,” because a law must not conflict with the fundamental purposes for which governments are formed by the people, to protect their persons and property.

He provided examples of the types of laws that are so destructive of personal liberty and private property and so manifestly unjust, that they are obvious and flagrant abuses of power:

“A law that punished a citizen for an innocent action, or, in other words, for an act, which, when done, was in violation of no existing law; a law that destroys, or impairs, the lawful private contracts of citizens; a law that makes a man a Judge in his own cause; or a law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it. The genius, the nature, and the spirit, of our State Governments, amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them.”

If bills of attainder and ex post facto laws were so obviously contrary to justice, reason, and the essential purposes of governments, why then is there a need for specific prohibitions in the Constitution? Some delegates in the Philadelphia convention and in the state ratifying conventions raised that very question. A couple of reasons present themselves.

Consider another opinion in Calder, that of Justice James Iredell. He agreed about the definition of ex post facto laws and their unconstitutionality under the express provisions of the Constitution. But he also warned that, in their absence, a court was incompetent to declare such laws void.

“If, then, a government, composed of legislative, executive and judicial departments, were established by a constitution which imposed no limits on the legislative power, the consequence would inevitably be that whatever the legislative power chose to enact would be lawfully enacted, and the judicial power could never interpose to pronounce it void. It is true that some speculative jurists have held that a legislative act against natural justice must in itself be void, but I cannot think that under such a government any court of justice would possess a power to declare it so.”

The reason was that natural justice was not a sufficiently precise concept to allow judges to override the legislature’s power to make all laws which are not expressly prohibited to it: “The ideas of natural justice are regulated by no fixed standard; the ablest and the purest men have differed upon the subject, and all that the court could properly say in such an event would be that the legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice.”

Another reason was that, in fact, there had been such laws passed. During the debate in the Virginia ratifying convention in June 1788, Patrick Henry defended the use of bills of attainder and ex post facto laws in some circumstances. His example was the case of one Josiah Philips, a loyalist guerrilla leader during the Revolutionary War. Philips’s band had repelled a militia sent by then-governor Patrick Henry. Henry then had sought an attainder of Philips. None other than Thomas Jefferson had drafted the bill of attainder which the legislature had adopted unanimously on May 28, 1788. The bill accused Philips and his associates of various crimes amounting to treason and directed that they be executed expeditiously after their capture. Moreover, if those attainted had not turned themselves in to the authorities, the act directed that “it shall be lawful for any person with or without orders, to pursue and slay the said Josiah Philips and any others who have been of his associates or confederates… or otherwise to take and deliver them to justice to be dealt with according to law provided that the person so slain be in arms at the time or endeavoring to escape.”

Edmund Randolph, the state attorney general at the time, had opposed the attainder. Instead, when Philips was caught, he was tried and convicted by a jury for grand theft of 28 hats and five pounds of twine. That made little difference in the end, as the punishment for that conviction also was death by hanging. Both Henry and Jefferson years later still defended the attainder of someone they considered the equivalent of a pirate engaged in crimes against humanity and therefore hostis humani generis, beyond the protection of the law.

Nor was Virginia alone. Many other states engaged in the practice against Loyalist Tory sympathizers. It must be noted, however, that actual executions under such attainders were rare, estimated by one authority to number 15 during the entire war. The Pennsylvania legislature, acting on its own initiative or at the instigation of its judiciary, enacted attainders for treason in hundreds of cases, although only four ended in hangings, all of Quakers. Due to its pacifism, that religious minority was broadly suspected to be at least unfriendly to the Patriot side. A particularly colorful tale is that of the members of the extended Doane family of Loyalist Quakers who helped the British while marauding in the countryside.

Several states used such attainders, even though their own constitutions prohibited them. It was to these events that James Madison was reacting in The Federalist No. 44 in language similar to Justice Chase’s,

“Bills of attainder, ex post facto laws, and laws impairing the obligations of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. The two former are expressly prohibited by the declarations prefixed to some of the state constitutions, and all of them are prohibited by the spirit and scope of these fundamental charters. Our own experience has taught us, nevertheless, that additional fences against these dangers ought not to be omitted.”

Although all justices in Calder v. Bull agreed that ex post facto laws were those that retroactively altered rules about conduct to the detriment of the now-accused, there apparently was less unanimity about that definition during the debate over the Constitution. Some constitutional historians, most notably Professor William Crosskey writing in the mid-20th century, have argued that the phrase ex post facto was commonly understood in the 18th century to apply to any retroactive law. They have reviewed the records of the debates at the Philadelphia convention, primarily the printed Journal of the Convention, James Madison’s notes and notes taken by another delegate, David Brearley, a future New Jersey chief justice, and by convention president George Washington. Crosskey also analyzed numerous other contemporary English and American sources of 18th-century usage of the term.

The more restricted definition arose when, according to Madison’s notes, some delegates registered confusion about the phrase. John Dickinson, a much-respected authority on constitutional law at the time, then claimed to have researched the matter by consulting Blackstone’s influential Commentaries on the Laws of England. He concluded that Blackstone defined the phrase as applying only to retrospective criminal laws. The problem is that this definition appears to conflict with the Journal and with another part of Madison’s notes recording a debate about the clause a day earlier, on August 28, 1787, where the speakers assumed that the phrase applied more broadly to all retrospective laws. As well, the notes of Brearley and Washington reflect that earlier, broader understanding and say nothing about Dickinson’s remarks. Dickinson’s own papers about the Constitution do not show that he made those remarks.

Ten months later, during the intense debates in the Virginia ratifying convention, Patrick Henry also charged that the ex post facto clause applied to all retrospective laws, criminal and civil. Henry objected that, if no such laws were permitted, would the old worthless continental paper dollar notes have to be repaid at face value with gold and silver because no law could discharge such payment retroactively. Faced with such assertions, it is surprising that neither Madison nor his fellow delegate to the Philadelphia convention Edmund Randolph cited Dickinson or Blackstone. As a result, these historians speculate that Madison’s position in the Virginia convention and in essay No. 44 of The Federalist, which was adopted in Calder was not correct and that, indeed, Madison made up the Dickinson remarks and added them to his notes some years after the events.

Whatever the understanding about the scope of ex post facto was in 1787, the more limited meaning put forth by Madison in his essay and in the Virginia convention, and adopted by the justices in Calder is the accepted meaning today. Retroactive criminal laws create profound instability in that no one can predict whether one’s conduct is outside the law, because the law might be changed retroactively at any time. Their potentially destructive effect on people’s lives justifies Justice Chase’s description of ex post facto laws as contrary to basic conceptions of justice and a fundamental violation of the proper relationship between the government and the governed.

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

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Guest Essayist: Tony Williams

Essay Read by Constituting America Founder, Janine Turner

 

 

The right to a trial by jury is one of the core principles of the Anglo-American constitutional tradition. The trial by jury ensures that the government is limited, essential rights are protected, and the rule of law is preserved. As Thomas Jefferson noted to Thomas Paine, “I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

The trial by jury can be traced back to Magna Carta (1215), which King John signed as a limit on royal power. Clause 39 read, “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.” It protected the right of habeas corpus—meaning that one could not be indefinitely imprisoned.

The English Bill of Rights (1689) confirmed the right to a trial by jury. It also protected related rights for those accused of crimes. The document guaranteed a trial by jury as well as protections against arbitrary government. It outlawed cruel and unusual punishments, excessive fines, and unreasonable bail for the accused.

The English colonists brought this tradition of rights to British North America. They expected to enjoy the rights of Englishmen. The trial by jury became a core issue of the resistance to British tyranny during the 1760s and 1770s. The British began enforcing the Navigation Acts regulating imperial trade more stringently and tried colonial smugglers in Vice-Admiralty courts. These courts did not have juries, and cases were decided by judges. Colonists felt as if they could not get a fair trial and protested this injustice.

In late 1765, delegates from nine colonies attended the Stamp Act Congress in New York. They issued a list of resolutions claiming their rights especially the principle of “no taxation without representation.” They also asserted the right to a trial by jury. “That trial by jury is the inherent and invaluable right of every British subject in these colonies,” the Stamp Act Resolutions read. Many other documents claimed this essential right over the next decade.

The Declaration of Independence asserted the right of a people to overthrow an oppressive government violating their rights. The Continental Congress included a list of grievances against arbitrary government to prove British tyranny and justify separation. One of those grievances was blaming the king for “depriving us in many cases, of the benefits of Trial by Jury.”

When the Framers created the United States Constitution during the Philadelphia Convention in the summer of 1787, they protected some basic rights including habeas corpus and trial by jury. Article III, section 2 guaranteed the right to a trial by jury. It stated, “The Trial of all Crimes, except in Cases of Impeachment, shall be by jury; and such Trial shall be held in the State where the said Crimes shall have been committed.”

During the 1787-88 ratification debate, the opponents of the Constitution, the Anti-federalists, argued for a Bill of Rights to protect individual liberties against a more powerful national government. The Federalists, those who supported the Constitution, promised to create a Bill of Rights in the First Congress. In 1789, Representative James Madison urged his colleagues to craft a Bill of Rights and took the lead in the process.

Congress did pass a Bill of Rights that was ratified by all the states by 1791. It provided widespread protections of rights for the accused including the right to a fair and speedy trial in criminal prosecutions, the due process of law, the right to an attorney, and no cruel and unusual punishments. The Seventh Amendment guaranteed a jury in civil trials.

The right to a trial by jury and related essential rights have been a bedrock of justice and the rule of law in the American constitutional system. Controversies have arisen throughout American history such as the suspension of habeas corpus during the Civil War, the denial of trials for Blacks during slavery and rarely fair trials during segregation, the constitutionality of the death penalty, and the holding of terrorists in Guantanamo Bay without a trial during the War on Terror. During the 1960s, the Court also protected several rights of the accused including the right to a trial by jury for the indigent in Gideon v. Wainwright (1963) and the right against self-incrimination in Miranda v. Arizona (1966).

The right to a trial by jury has been one of the foundations of a just constitutional order and limited government in the British tradition and under the American Constitution. The trial by jury thwarts arbitrary government and provides a rule of law that preserves the liberties of the people.

*****

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

Guest Essayist: James Humphreys

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

The Fourth Amendment to the United States Constitution protects Americans from “unreasonable searches and seizures” by government officials. The Fourth Amendment was ratified in 1791 along with the other nine amendments in the Bill of Rights. It reads, “The rights of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Fourth Amendment safeguards Americans from heavy-handed and arbitrary government action in some of the most private arenas of their lives.

The experience of the American colonists with British military and civil officials during the American Revolution convinced many colonists of the necessity of defending themselves from invasion and search of their homes by government agents. A number of state constitutions, written in 1776 during the early stages of the Revolution, included in a list of rights belonging to citizens a prohibition against the use of general warrants. Among the states with such a restriction in their constitutions were Maryland, Virginia, and Pennsylvania.

British officials, during the colonial era, often used general warrants to justify the search of a colonist’s home. General warrants provided little detail about whom or what were to be searched for, and, in some cases, colonists, with no evidence against them of illegal activity, suffered the indignity of having their homes searched. The Fourth Amendment demanded that a warrant be more detailed for a search and seizure to be legal. First, to obtain a warrant, there had to be “probable cause” or a good reason to believe a search was necessary in order to uncover evidence of a crime that might be used in a court of law.  Second, a search warrant had to denote explicitly whom or what authorities were searching for and where their search would take place. Third, a warrant had to be signed by a judge. These three conditions lessened the chance of government authorities carrying out a baseless search of an American’s home and personal property.

State and federal judges’ interpretations of the Fourth Amendment became more complicated in the twentieth and twenty-first centuries than in earlier eras with the explosion of technologies that enhanced government officials’ ability to carry out electronic surveillance of citizens. The members of the Supreme Court, for example, upheld the use of wiretapping in the 1928 case of Olmstead v. United States, but in later cases, they ruled that government officials needed search warrants to justify wiretapping. In 2010, in the case of City of Ontario v. Quon, the judges ruled that emails and other forms of communication sent by workers over their employers’ servers were searchable without a warrant. According to another Supreme Court ruling, information on a personal cell phone belonging to an individual, who had been arrested, could not be subjected to a warrant-less search. The cell phone could be confiscated by the police and searched later after the issuance of a warrant.

Online learning, widely implemented during the Covid pandemic, also has Fourth Amendment ramifications. A federal judge, in 2022, wrote that a testing system’s requirement that a student scan his room before remotely completing an online assignment met the Fourth Amendment’s definition of an unreasonable search. University officials, who appealed the decision, argued that a scan held the potential to reveal evidence that a student planned to cheat on an assignment. While questions regarding the application the Fourth Amendment to the use of electronic devices abound, there is no question that evidence, for it to be admitted in court, must be obtained legally, that is, in accordance with all laws and rulings on what constitutes a reasonable search. The Supreme Court, by a 6-3 vote, ruled that evidence gathered illegally was inadmissible in court in the 1961 case of Mapp v. Ohio.

That the Framers of the Fourth Amendment included protection from illegal searches and seizures in the Bill of Rights indicates the significance of the right to the Revolutionary generation. In no way, though, is that liberty less important now than it was in early America. Instead, with government officials’ enhanced ability to surveil American citizens through more clandestine ways than entering and searching homes, the right may be of even more significance today than it was in past eras. One thing is for certain: During every period of United States history, citizens’ freedom from illegal searches and seizures has been vital to the maintenance of a free society.

 James S. Humphreys is a professor of United States history at Murray State University in Murray, Kentucky. He is the author of a biography of the southern historian, Francis Butler Simkins, entitled Francis Butler Simkins: A Life (2008), published by the University Press of Florida. He is also the editor of Interpreting American History: the New South (2018) and co-editor of the Interpreting American History series, published by the Kent State University Press.   

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

 

Guest Essayist: Ben Slomski

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

“Every man ought to be amenable for his conduct, and there are no persons so proper to complain of the public officers as the representatives of the people at large. The representatives of the people know the feelings of the people at large, and will be ready enough to make complaints. If this power were not provided, the consequences might be fatal. It will be not only the means of punishing misconduct but it will prevent misconduct. A man in public office who knows that there is no tribunal to punish him may be ready to deviate from his duty; but if he knows there is a tribunal for that purpose, although he may be a man of no principle, the very terror of punishment will perhaps deter him.” – James Iredell, U.S. Supreme Court Justice placed by George Washington, North Carolina Ratification Convention, July 24, 1788

The United States Constitution places members of the federal judiciary in a unique position. Article III stipulates that “the Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.” Unlike members of Congress or the President who are elected for a set term length, all federal judges are appointed for the term of good behavior. Practically, this means federal judges are appointed for life. The only way to remove a federal judge from office is through impeachment by Congress, which is limited to the cases of “Treason, Bribery, or other high Crimes and Misdemeanors.”

The logic of life tenure for judges was best explained by Alexander Hamilton in Federalist No. 78. Here, Hamilton declared that

[t]he standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.

Life tenure upon appointment creates independence for the judiciary in the administration of the laws. This ensures that the laws are applied in a consistent and fair manner. Even in a republican government, the individuals who comprise the legislature are human beings who can succumb to despotic passions. Judicial independence is just as useful a safeguard from oppression in a republican government as any other.

The institutional capacity of the judiciary makes life tenure especially necessary. Hamilton explained that the judiciary lacks Congress’ power of the purse and the President’s power of the sword and wrote that the judiciary “may truly be said to have neither FORCE nor WILL, but merely judgment.” The judiciary is comparatively weaker to the other two branches of government because it lacks the will to make laws as well as the force to enforce the law. There is a risk that the political branches could ignore the Constitution and the judiciary could be too weak to resist their usurpations.

In order to protect the judicial branch from the greater powers of the other branches, life tenure is necessary to create judicial independence. Hamilton stated that

as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.

Federal judges are appointed through a political process where they must be nominated by the President and confirmed by the Senate. Once judges are appointed, however, they have life tenure so that they do not need to rely on the political branches for any further security. Life tenure allows judges to be independent from politics so that they have the security to stand up against the political branches when necessary.

Judicial independence is beneficial under all forms of government but it turns out that it is especially necessary under the American form of government with a written Constitution. For Hamilton,

[t]he complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

A written constitution embodies the fundamental will of the people for the government. There is no point to writing down a constitution if the written limits are not enforced. The task of enforcing constitutional limitations cannot be left to Congress or the President because each would naturally be inclined to favor itself. The judiciary must exist as a third, independent branch that stands outside the political process to enforce the Constitution’s limits. Hamilton explained that it is natural that the judiciary fulfills this role because “[t]he interpretation of the laws is the proper and peculiar province of the courts.” Courts interpret and apply laws as part of their normal function and so it makes sense that it will be the judiciary that interprets the Constitution as the fundamental law of the land in legal cases.

Federal judges are given excellent job security because they are entrusted with a great responsibility. Article III ties life tenure to the specific office that is held, which is that of a judge on a court. Good behavior for judges is understood in the sense of carrying out one’s duties in a judicial manner. Judges act consistently with their constitutional charge when they remember that they are judges tasked with the application of the Constitution and the laws to particular legal cases. Judges stray from this responsibility when they seek to exercise the functions of legislating or executing laws and impose their will rather than the Constitution. Impeachment by Congress remains as a check on judges who misuse their office. Good behavior requires judges to resolve legal cases and invalidate government acts when necessary to preserve the sanctity of the Constitution.

Benjamin Slomski is Assistant Professor of History and Political Science at Ashland University.

 

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Guest Essayist: Eric C. Sands

 

Essay Read by Constituting America Founder, Actress Janine Turner

 

It has been around since the Middle Ages. It’s been called the second Magna Carta by some, and the “great writ” by others. What we are referring to is habeas corpus, a Latin phrase meaning “you should have the body.” Put most simply, habeas corpus allows a person who has been detained the chance to challenge that detention in court. This prevents the government from holding an individual indefinitely without bringing charges against them. In the American system of justice, habeas corpus applies both at the federal and state level.

While some scholars locate the origin of habeas corpus in Roman law, a less disputed claim is that habeas corpus originated in Article 39 of the Magna Carta. Article 39 held that “no Freeman shall be taken, or imprisoned…but by lawful Judgment of his Peers, or by the Law of the Land.” It is true that this does not necessarily speak directly to habeas corpus as it is understood today, but it seems to have something like habeas corpus in mind. From this starting point, though, habeas corpus evolved in the English courts and sheriffs could be served with the writ.  A court could then issue an order to release a prisoner if it was found he or she was being held without cause.

The modern understanding of habeas corpus arose out of conflicts between Parliament and the king in the 17th Century. The Petition of Right in 1628 charged that the king’s jailers were ignoring the writs and were illegally detaining English subjects. In 1679, Parliament passed the Habeas Corpus Act, which applied to sheriffs and jailers who were causing delays in releasing prisoners. The Act imposed strict deadlines for responding to the writ and imposed heavy fines if sheriffs or jailers did not act promptly. By this point habeas corpus had come into its own in Britain, but it still needed to make its way to the new world.

When the United States Constitution was written, the writ of habeas corpus was the only English common law writ given specific reference in the document. Article I, Section 9 of the document provides that “the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”  This became known as the Suspension Clause and it both recognized the existence of the writ of habeas corpus and stipulated the conditions under which it could be withheld. Two years later, in the Judiciary Act of 1789, Congress provided that both justices of the U.S. Supreme Court and judges of the federal district courts “have the power to grant writs of habeas corpus for the purpose of inquiry into the cause of commitment.” Importantly, though, this law only applied to people in custody by the federal government or being tried in federal courts. Federal judges thus did not have the power to extend the writ to prisoners in the states.

During the Civil War, the Suspension Clause was put into effect by President Abraham Lincoln at the beginning of the war to deal with saboteurs and traitors operating in the state of Maryland. Under the suspension of the writ, John Merryman was arrested by military authorities, and was detained at Fort McHenry outside of Baltimore. Merryman’s lawyer petitioned Supreme Court Justice Roger Taney for a writ of habeas corpus. The issue in Ex parte Merryman was whether Lincoln, as president, could constitutionally suspend the writ in a case of rebellion. That the country was in a state of rebellion no one had any doubt. But the Constitution located the Suspension Clause in Article I, which dealt with the powers of Congress. This seemed to make it a legislative power and, therefore, one the president could not exercise alone. Lincoln believed the suspension of the writ could be undertaken by either the president or Congress, especially if Congress was not in session when an emergency began.

Taney disagreed with Lincoln and held that Lincoln had violated the Suspension Clause by suspending the writ. Yet, Taney seemed to recognize the limited scope of his power and, therefore, did not order Merryman’s release. Instead, he filed his opinion with the U.S. Circuit Court of Maryland and ordered that a copy of the opinion by delivered to the president. Taney concluded that “it will then remain for that high officer…to determine what measures he will take to cause the civil process of the United States to be respected, and enforced.” In the end, the Merryman decision became a moot point as Congress retroactively approved the suspension and passed sweeping legislation that authorized Lincoln to suspend the writ for the duration of the war. Moreover, the case left unanswered the question of who has the actual power to suspend the writ since Taney did not write in his capacity as Chief Justice and, therefore, the case did not become Supreme Court precedent.

During Reconstruction, in tandem with the passage of the Fourteenth Amendment, Congress passed the Habeas Corpus Act of 1867. This Act provided “That the several courts of the United States, and the several justices and judges of such courts, shall have power to grant writs of habeas corpus in all cases where any person may be restrained of his or her liberty in violation of the Constitution, or of any treaty or law of the United States.” What this meant, significantly, is that federal judges could now issue writs to state prisoners in state cases for violations of their constitutional rights. While this expanded protections for those charged with crimes throughout the United States, it also created a great deal of tension between the states and the national government and raised issues of federalism. Clearly, therefore, the issues related to habeas corpus have not all been resolved, yet it remains without question one of our most important civil liberties.

Eric C. Sands is Associate Professor of Political Science and International Affairs at Berry College. He has written a book on Abraham Lincoln and edited a second volume on political parties. His teaching and research interests focus on constitutional law, American political thought, the founding, the Civil War and Reconstruction, and political parties.

Guest Essayist: Ben Peterson
Scales of justice in association with Lady Justice and the presentation of evidence to be carefully weighed.

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

Numerius, the Governor of Narbonensis, was on trial before the emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, “a passionate man,” seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, “Oh, illustrious Caesar, if it is sufficient to deny, what hereafter will become of the guilty?” to which Julian replied, “If it suffices to accuse, what will become of the innocent?” Coffin v. United States (1894), citing Rerum Gestarum, L. XVIII, c. 1

I served on a jury for an assault and family violence case last year. The defense counsel reminded me and the other potential jurors that the prosecution bore the burden of demonstrating the defendant’s guilt. Even if the defense presented no evidence, called no witnesses, or gave no testimony, jurors were not to take absence of exculpatory evidence as an indication of guilt. It was the prosecutor’s task to prove, beyond a reasonable doubt, that the defendant was guilty.

Neither the phrase “innocent until proven guilty,” nor “presumption of innocence” appears in the United States Constitution. Yet, the presumption of innocence is a fundamental principle of our legal order. Colonial governments and the First Continental Congress invoked the principle, it lies in the background of protections for the accused and requirements of due process in the Fourth and Fifth Amendments, and it appears in the constitutions or penal codes of some states.

Supreme Court justices have referred to the presumption of innocence as a fundamental, axiomatic legal principle. Associate Justice Joseph Story (d. 1845), offering the opinion of the Supreme Court in United States v. Gooding (1827), wrote that, “the general rule of our jurisprudence is that the party accused needs not establish his innocence, but it is for the government itself to prove his guilt before it is entitled to a verdict or conviction.” Associate Justice Edward Douglass White (d. 1921), writing for the Court in Coffin v. United States (1894), wrote, “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” The Court found that the lower court should have instructed the jury that,

The law presumes that persons charged with crime are innocent until they are proven by competent evidence to be guilty. To the benefit of this presumption the defendants are all entitled, and this presumption stands as their sufficient protection unless it has been removed by evidence proving their guilt beyond a reasonable doubt.

The doctrine of presumed innocence has medieval roots, and there are ancient principles regarding fair procedure that are widely shared, finding echoes in Talmudic and Islamic legal theory, and even in the Code of Hammurabi, as well as Roman law. While Justice White and other writers traced the principle to the English common law, in great measure incorporated into the American legal order, Kenneth Pennington credits a French canon lawyer who lived in the thirteenth and first part of the fourteenth century, Johannus Monachus (d. 1313), with the first clear, pithy formulation of the principle that a person is presumed innocent until proven guilty: “item quilbet presumitur innocens nisi probetur nocens.”

The canonist was himself referring to a decretal by Pope Innocent III (d. 1216), and he was among a number of jurists who, in the thirteenth century, sought to ground procedural rights of defendants charged with criminal acts in the divine law and biblical teaching. After all, even God, the supreme judge, did not expel Adam and Eve from the Garden of Eden before they had a chance to appear and plead their case. These canonists drew on and contributed to the Ius commune, the common law of the civil law systems of Europe, based on the Corpus juris civilis of Justinian, moving European legal systems away from trial by ordeal or even torture such as employed in some inquisitorial proceedings to induce confessions.

As Pennington notes, there were jurists who argued, contrary to the presumption of innocence, that public order often requires limiting the rights of the accused to ensure conviction of the guilty. The Ius commune, and subsequently judges and jurists contributing to the English common law, instead adopted the principle reflected in William Blackstone’s (d. 1780) famous ratio: “The law holds that it is better that ten guilty persons escape than that one innocent suffer.” Blackstone was an authority on jurisprudence at the time of the American founding and early republic, and in his ratio he was distilling a notion that other common law jurists such as Sir John Fortescue and Sir Matthew Hale had also expressed.

Pennington’s point that the English common law isn’t the primary source of the presumption of innocence notwithstanding, we find an assertion of the importance of due process of law, the idea that government must demonstrate guilt via a legal process established in advance before depriving a citizen of life, liberty, or property, in the Magna Charta (1215): “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.”

The presumption of innocence, a legal principle with deep and broad roots in ancient, medieval, and modern tradition and experience, is a central part of the constitutional and legal order in the United States. I’ve seen the principle in action; my fellow jurors and I voted to acquit the defendant because we didn’t believe the prosecution demonstrated guilt beyond a reasonable doubt. No doubt there are many others—some innocent, some guilty—who are today not incarcerated or tagged with criminal records because of the presumption of innocence. Such is the fruit of this foundational principle of legal administration, a bulwark of constitutional liberty where it is honored.

Ben Peterson is an assistant professor of political science at Abilene Christian University.

 

 

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Guest Essayist: James C. Clinger
Principle of Due Process of Law

Essay Read by Constituting America Founder, Janine Turner

 

 

The principle of due process of law has long been a central principle in Anglo-American jurisprudence. The principle has been formally codified within the Fifth and Fourteenth Amendments of the United States Constitution. However, while the principle has a long history, it has changed dramatically over time, with new interpretation and applications of the principle affecting not only law and administrative practices throughout the country.

In Clause 39 of the Magna Carta, the essence of due process is expressed in the following terms: “No free man is to be arrested, or imprisoned, or disseised, or outlawed, or exiled, or in any other way ruined, nor will we go against him or send against him, except by the lawful judgment of his peers or by the law of the land.”[i] At the very least, this provision limited the power of the crown to take arbitrary or capricious injurious actions that were not sanctioned by law. The phrase “law of the land” later found its way into many of the provisions of American state constitutions, although the phrase “due process of law” was also used, with apparently very similar if not identical meaning. Many of the early state courts, applying this language, considered the protections of due process or the law of the land to be a means of preventing governments from carrying out policies threatening vested rights in property of their citizens, although it could also protect their personal liberty.[ii]

The “due process” language appeared in the federal constitution in the form of the Fifth Amendment, which declares that no person “be deprived of life, liberty, or property without due process of law.” The Fifth Amendment is most famous for its provisions regarding criminal procedures, although it also contains the very significant “takings clause” pertaining to protections for property. There is very little historical record regarding the inclusion of the due process language, and the clause was not invoked by the United States Supreme Court until the 1856 case of Murray v. Hoboken Land & Improvement Company.[iii]    The following year saw the clause invoked again, this time in an infamous ruling in the case of Scott v. Sanford,[iv] more commonly known as the Dred Scott decision.

For much of the period before the Dred Scott case, state courts had generally treated due process as a procedural protection, just as the wording suggests. When government deprived someone of life, liberty, or property, due process required that individuals have a right to a hearing before an impartial arbiter and to confront their accusers. In short, due process did not absolutely prohibit deprivations of life, liberty, or property by government but did require government to do so only in a manner that contained expected legal safeguards. What emerged in the Dred Scott decision was a judicial concern for the substance of government action, a view that has come to be known as “substantive due process.” To some, substantive due process is an oxymoron concept, much like “green, pastel redness,” in the words of John Hart Ely.[v] In this decision, Chief Justice Roger Taney, joined by six other justices, ruled that the federal government had deprived a slaveholder of property without due process of law by forbidding slavery in free territories under the Missouri Compromise. This decision was essentially about the substance of the federal government’s position on slavery and had little to do with the process by which that policy came into being or the way in which it was enforced. The decision was immensely controversial and must be considered one of the key events that precipitated the Civil War.

After the war, Congress proposed and the requisite number of states ratified the Fourteenth Amendment to the Constitution, which includes a due process clause that is applicable specifically to the states, rather than just the federal government. It should be noted that most state constitutions already had due process clauses at the time the Fourteenth Amendment was ratified, but this new provision involved the federal government in ensuring that due process was followed. These protections were intended to provide a legal guarantee of due process for the recently freed slaves and their descendants in all states, including the states that had promoted slavery prior to the Thirteenth Amendment. Of course, the language was quite broad, offering a guarantee of due process to all persons.

Many states, however, found ways to circumvent the due process clause, largely because the provisions applied to public action, rather than private activities. In some cases, the clause was used by business organizations who believed that state regulations deprived them of property without due process of law. In the case of Lochner v. New York, the Supreme Court invoked essentially substantive due process arguments to strike down a New York law limiting the working hours of bakers.[vi] In that case, the plaintiff successfully argued that the state law denied him property that could have been generated if his freedom to contract had not been denied by the regulation. By the 1930s, the Supreme Court stepped away from economic versions of substantive due process arguments, but in the 1960s and thereafter began to identify a doctrine of individual privacy that is not explicitly based on specific provisions of the Constitution but which appears to be a socially liberal version of substantive due process.[vii]

Another implication of the Fourteenth Amendment’s due process clause is what has been called the “selective incorporation” of the Bill of Rights. What this doctrine means is that some if not all provisions of the Bill of Rights, which originally limited the actions of the federal government, are now applied to the state governments. It is not clear that the drafters of the Fourteenth Amendment had any form of incorporation in mind when the due process clause was written. The Supreme Court did not clearly apply this doctrine until 1925 in the Gitlow v. New York decision that applied the First Amendment’s protection of freedom of speech to state governments.[viii] No majority of the Court has ever concluded that the entirety of the federal constitution applies to the states, but the Court has concluded that the Fourteenth Amendment selectively incorporates only those rights that are “of the very essence of a scheme of ordered liberty.”[ix] Over time, through incremental decisions, the Court has incorporated most of the Bill or Rights. The few exceptions include such provisions as the Third Amendment’s prohibition against the quartering of soldiers, the grand jury indictment requirement in the Fifth Amendment, and the Seventh Amendment’s stipulation that a jury trial be available for suits where the value in controversy exceeds twenty dollars.

Over the last sixty years, the due process clause of the Fourteenth Amendment has taken on new meaning because the definitions of property have changed. The language of the clause indicated that due process must be provided when the state deprives “life, liberty, or property.” In cases involving capital punishment, the government clearly must supply due process. In fact, in such cases the government is compelled to provide exceptional procedural protections. In cases involving arrest or incarceration, obviously the government is obligated to provide due process. Traditionally, when governments deprive individuals of property they are involved in activities such as eminent domain or regulations that affect personal and corporate income. But beginning in the 1960s, the courts began to perceive that individuals could have a property interest in various kinds of government benefits, which could include welfare or disability payments, public contracts, government licenses or permits, or even public employment. In 1968, the Supreme Court ruled that welfare recipients had a property interest in the receipt of their payments, so that the state of New York could not terminate payments without first having a public pre-termination hearing.[x] A few years later, applying the Fifth Amendment’s due process clause, the Court ruled that recipients of Social Security disability checks were entitled to some due process, but not as much as in the case at issue in Goldberg v. Kelly. With disability cases, post-termination hearings would be sufficient, because the Court reasoned that other interests must be “balanced” with those of the individual claimants.[xi] The courts have continued to ponder very particular circumstances in individual cases to determine how much and what kind of process is due in very particular situations.[xii]

The last issue that this essay examines is the ambiguous issue of what constitutes public action. The due process clauses of the Fifth and Fourteenth Amendments apply to public entities, not private firms or organizations. But can a private organization be subject to due process requirements if it is acting pursuant to public policies?[xiii] Of course, there is also a dispute regarding what constitutes a policy? Would a guidance document issued by a government agency be considered a public policy? A statute enacted by a legislature no doubt would be a public action. Generally speaking, a rule issued by a government agency under a legislature’s delegated authority would be considered a public action, since it would normally be considered legally binding. A guidance document or an interpretive rule would not, strictly speaking, be considered legally binding, but agencies may threaten investigations or the loss of future grant funds or contractual dollars if a private organization is not in compliance with directives that are not formally recognized as legally binding. The case law on these issues is still developing, but recent cases indicate that private organizations acting under the influence of government may be liable if they do not offer due process protections, even if the policy that they are following is quite informal. For example, Cornell University, a private institution, has been challenged by a dismissed faculty member for following irregular investigative procedures derived in part from the Title IX guidance handed down by the Office of Civil Rights within the Department of Education.[xiv]

James C. Clinger, Ph.D., is an emeritus professor of political science at Murray State University. His teaching and research has focused on state and local government, public administration, regulatory policy, and political economy. His forthcoming co-edited book is entitled Local Government Administration in Small Town America.

[i] Magna Carta, Clause 39.  Accessed July 7, 2023 from Magna Carta Project – 1215 Magna Carta – Clause 39 (uea.ac.uk)

[ii] Inglis, Laura. “Substantive Due Process: Continuation of Vested Rights?” The American Journal of Legal History 52, no. 4 (2012): 459–97.

[iii] 18 Howard 272.

[iv] 60 US 393 (1857)

[v] John Hart Ely, 1980.  Democracy and Distrust: A Theory of Judicial Review.  Cambridge: Harvard University Press, p. 18.

[vi] 198 US 45 (1905)

[vii] See, for example, Griswold v. Connecticut 381 US 479 (1965).

[viii] 268 US 652 (1925)

[ix] 302 US 319 (1937)

[x] 397 U.S. 254 (1970)

[xi] 424 U.S. 319 (1976)

[xii] Shapiro, Sidney A., and Richard E. Levy. 2005. “Government Benefits and the Rule of Law: Toward a Standards-Based Theory of Due Process.” Administrative Law Review 57 (1): 107–53.

[xiii] Verkuil, Paul R. 2005. “Privatizing Due Process.” Administrative Law Review 57 (4): 963–93.

[xiv] Vengalatorre v. Cornell University.  2022.  United States Court of Appeals for the Second Circuit.   Docket No. 20-1514.

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Guest Essayist: James C. Clinger

 

Essay Read by Constituting America Founder, Actress Janine Turner

 

“…it ought not to be overlooked, that such an additional accumulation of power in the judicial department would not only furnish pretexts for clamor against it, but might create a general dread of its influence, which could hardly fail to disturb the salutory effects of its ordinary functions…There is nothing, of which a free people are so apt to be jealous,, as of the existence of political functions, and political checks, in those, who are not appointed by, and made directly responsible to themselves.” – Joseph Story, United States Supreme Court Justice appointed by James Madison, Commentaries on the Constitution of the United States: With A Preliminary Review of the Constitutional History of the Colonies and States, Before the Adoption of the Constitution. Published in 1833.

The above quotation from Joseph Story, an associate justice on the United States Supreme Court, is drawn from his discussion of the United States Senate, and more specifically from his analysis of the role of the Senate in the impeachment process. Story’s analysis is an insightful illustration of what is sometimes called the separation of powers, but which some observers call “separate institutions, sharing powers.”[1]

In Article I, Section 1 of the United States Constitution, the Framers wrote that “all legislative powers are vested in a Congress.  Article II of the Constitution discusses executive powers, and Article III covers judicial powers, but notably the adjective “all” is absent from the text of those articles. Only in the first article does the text emphasize the comprehensive nature of the powers vested in Congress. To make sense of this language and to contrast it with the empowering language written for the executive and judicial branches requires us to have some understanding of what words such as “legislative” and “executive” and “judicial” actually mean. Virtually all dictionary definitions describe the word “legislative” as pertaining to the making or enacting of laws. However, that definition is of little use to us if we do not have any particular idea of what a law actually is. Definitions of “law” are a bit more varied, in part because the definitions sometimes refer to regularities in natural phenomena with a common causal pattern (e.g., the law of gravity). In a constitutional context, law is generally regarded to be general rules made by government, using a proper procedure not forbidden to the government, which the government enforces with the use of penalties. Those penalties may take the forms of civil and/or criminal actions. This legislative power stands in contrast to the power of the executive, which is a word drawn from the Latin word exsequor, which means “to follow thoroughly.”[2] Ironically, the executive function has come to be known as a matter of leadership, rather than as the role of a follower. In the case of a government executive, the executive function is a matter of following or administering the rules enacted through a legislative process. The judicial power is generally a matter of making decisions regarding a legal matter in which there are two or more contending parties. Unlike the legislative power, which is applicable to all within a community, and accessible to all in a republic, the application of the judicial power has immediate effect upon the particular parties standing before the court. However, the judgments of an appellant court may become precedents that would have impact on other parties more generally.

In the case of impeachment, the Constitution authorizes a legislative function that in some respects resembles a judicial process.   Article II, Section 4, of the Constitution specifically states that the president, the vice-president, and all civil officers of the United States may be removed from office “on Impeachment for, and Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors.” This is a process that makes decisions regarding particular individuals accused of high crimes and misdemeanors. It is not a process that implicates whole classes of individuals or entire categories of behaviors, but a particularized decision about specifically identified individuals. The cause of action for an impeachment action is some kind of “High Crime or Misdemeanors,” which implies the possibility of a criminal proceeding. Nonetheless, as Joseph Story points out, impeachment is not considered a judicial process. No punishment beyond removal from office can be ordered through impeachment. In these instances, a civil officer accused of misconduct is examined by the House of Representatives, a chamber made up of elected individuals. Upon an impeachment vote by the House, the members of the Senate, acting as representatives of the states, consider whether or not to remove the civil officer.

As Story noted, a “free” public would be “jealous” of its power to use their elected, political representatives to make decisions on the removal of civil officers found to be guilty of misconduct. That kind of decision, if made by unelected judges, would outrage the public. As is often the case, the public has expectations about what kinds of decisions an institution within the government should make. Of course, since Joseph Story’s time public perceptions of the proper institution to address different issues may have changed dramatically. Views on the separation of powers have often changed over time. Recent events suggest that much of the public has a very results-oriented view of public decisions, without considering which institution is constitutionally authorized to make important policy choices. These views may be quite short-sighted, since an institution which usurps the powers of other institutions may occasionally make decisions favored by the public, but over the long term may accumulate power that will threaten individual rights and the aggregate interests of the public.

James C. Clinger, Ph.D., is an emeritus professor of political science at Murray State University. His teaching and research has focused on state and local government, public administration, regulatory policy, and political economy. His forthcoming co-edited book is entitled Local Government Administration in Small Town America.

[1] Richard Neustadt, Presidential Power: The Politics of Leadership.   New York: Wiley (1964), p. 42.

[2] https://en.wiktionary.org/wiki/exsequor#Latin

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Guest Essayist: Daniel A. Cotter

Essay Read by Constituting America Founder, Actress Janine Turner

 

From the beginning of our nation’s founding, the concept that all are equal under the law and have equal justice under law has been aspirational. But in the late 1890s, with the Supreme Court of the United States’ Fourteenth Amendment jurisprudence, the concept became concrete. Questions remain about whether the concept has been fully fulfilled.

The Idea

The concept of equal under the law is pretty straightforward. It means that regardless of race or color, political views, sex, religion, or other characteristics, justice is blind and everyone is treated the same and equally under the law. From the most powerful to the penniless, all are to be treated equally under the law, from due process rights to the rights under the Fourth and Fifth Amendments. A mental image of the concept can be had by taking a look at statues of Lady Justice, who has balanced scales before her and a blindfold over her eyes, so that impartiality is the standard by which all under the law are judged.

The Fourteenth Amendment

Some have referred to the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments as the “Second Founding.” The Fourteenth Amendment language provides for equal protection, Section 1 ending, “nor deny to any person within its jurisdiction the equal protection of the laws.”  Blacks were the intended beneficiaries of the language, but in its early days after ratification, the Equal Protection Clause was not always used to benefit the intended beneficiaries.

The Language of Equal Justice Under Law

In 1891, in a case, Caldwell v. Texas, 137 U.S. 692 (1891), Chief Justice Melville Fuller wrote in a Fourteenth Amendment case (emphasis added), “By the Fourteenth Amendment, the powers of the states in dealing with crime within their borders are not limited, but no state can deprive particular persons or classes of persons of equal and impartial justice under the law.” In a second case, Leeper v. Texas, 139 U.S. 462 (1891), the Fuller Court repeated the same language. (The Fuller Court in 1896 in the context of segregation also gave us the language “separate but equal” in Plessy v. Ferguson, 163 U.S. 537 (1896).)

In 1958, in Cooper v. Aaron, 358 U.S. 1 (1958), a post-Brown case involving the State of Arkansas and resistance to integration of public schools, the Court in an unsigned opinion wrote:

“The Constitution created a government dedicated to equal justice under law. The Fourteenth Amendment embodied and emphasized that ideal.”

The United States Constitution itself makes no mention, except for the Equal Protection Clause, of any equality concept.

The Pledge of Allegiance

The concept of equality is embedded in many of our national documents, including the Pledge of Allegiance, which was written in 1892 (around the time of the Texas cases referenced above. The original Pledge read, “I pledge allegiance to my Flag and the Republic for which it stands, one nation, indivisible, with liberty and justice for all.” The words “under God” were added in 1954, during the Red Scare, by President Dwight Eisenhower.

The Supreme Court Building

Prior to the 1930s, the Supreme Court met in the Senate building, with no separate home. Former President William Howard Taft, who became Chief Justice of the United States, worked to establish a place for the Court. Architects suggested the front of the building, the West Pediment, have the phrase, “Equal Justice Under Law,” over the entrance, to remind all that when they stepped before the highest court of the nation, they each were treated with equality. From the beginning, some have debated the phrase and whether the nine justices inside the building have lived up to the aspirational goal.

Roots Go Way Back

Democratic principles have long included notions of equality under the law. For example, in ancient Greece, Pericles wrote of equal justice under law.

From the United States of America perspective, our initial document establishing this Union, the Declaration of Independence, which we recently celebrated, begins in substance with the concept of equality:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

Conclusion

The debate about the law and whether all are treated “equal under the law” remains one of great interest and discussion. Our nation should be one that treats all equally under the law, and may this continue to be a goal we aspire to achieve.

Dan Cotter is Attorney and Counselor at Howard & Howard Attorneys PLLC. He is the author of The Chief Justices, (published April 2019, Twelve Tables Press). He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Guest Essayist: Andrew Langer

 

Essay Read by Constituting America Founder, Actress Janine Turner

 

The United States Constitution, ratified in 1788, has stood as a beacon of democratic principles and rule of law for over two centuries. One of its most profound contributions is the pursuit of “justice for all,” an ideal engraved in the Pledge of Allegiance. The preamble to the Constitution sets the tone by stating one of the document’s purposes as to “establish Justice.” This phrase signifies the Framers’ intent to create a system of governance that promotes fair treatment and equality under the law, a cornerstone of justice.

“Justice for All,” Generally, in the Constitution

The Constitution’s first ten amendments, known as the Bill of Rights, are crucial to achieving “justice for all.” These amendments protect individual liberties and limit governmental power, thereby ensuring fairness. The Fourth Amendment protects against unreasonable searches and seizures, while the Fifth and Sixth Amendments guarantee rights that are fundamental to a fair trial, such as the right to due process and the right to a speedy and public trial. The Eighth Amendment prohibits cruel and unusual punishments, affirming that punishment must be proportional and humane.

The Fourteenth Amendment, ratified after the Civil War, is another cornerstone in the pursuit of justice. The amendment’s Equal Protection Clause prohibits states from denying any person within their jurisdiction the equal protection of the laws. This provision has been instrumental in combating discrimination and ensuring that all individuals, regardless of their race or other innate attributes, are treated equally in the eyes of the law. Landmark Supreme Court cases, such as Brown v. Board of Education have utilized the Equal Protection Clause to deliver justice to marginalized groups.

The Constitution establishes the judiciary as an independent branch of government, playing a vital role in upholding justice. Article III vests the judicial power in the Supreme Court and other federal courts as Congress may establish. The courts interpret the Constitution and have the power to strike down laws that are unconstitutional, ensuring that the principles of justice are upheld against potential abuses of power.

Lastly, the Constitution itself provides for amendments to adapt to changing societal norms and understandings of justice. The Nineteenth Amendment, which granted women the right to vote, and the Twenty-Sixth Amendment, which lowered the voting age to 18, are examples of how the Constitution can evolve to better realize the promise of “justice for all.”

“Due Process” as the Embodiment of “Justice for All”

The concept of due process and the ideal of “justice for all” are two fundamental principles that underpin the legal systems of free and just societies. At the core of these principles is the commitment to protecting individual rights and ensuring fair treatment for all citizens under the law. Both concepts are deeply intertwined, serving as the backbone of a just and impartial society.

Due process, a concept firmly rooted in the legal framework, is a safeguard from arbitrary denial of life, liberty, or property by the government. It’s a constitutional guarantee that all legal proceedings will be fair and that no person will be deprived of their rights without a fair procedure. The essence of due process is the right to notice and a reasonable opportunity to be heard and defend one’s rights.

The commitment to due process is directly linked to the promise of “justice for all.” It establishes a level playing field in the court system, ensuring that no one is unduly favored or unfairly disadvantaged. This adherence to process and fairness guarantees that every citizen, irrespective of their social, economic, or political standing, has an equal opportunity to present their case and seek justice.

Through due process, the law is applied uniformly, emphasizing the principle that all are equal before the law. This means that every person, regardless of their status, is subject to the same laws and legal proceedings as anyone else, reinforcing the concept of “justice for all.” It embodies the idea that justice should not be the privilege of the few, but the right of all.

Due process is a bulwark against the arbitrary exercise of power by the state. It prevents individuals from being unjustly targeted or punished without substantial evidence and a fair trial. By doing so, it reinforces the ideal of “justice for all,” ensuring that no person is unjustly deprived of their rights or freedoms.

Due process promotes transparency and accountability in the legal system. It requires that legal proceedings be carried out in a fair, open, and consistent manner, which enhances public trust in the system. This transparency ensures that justice is not only done but seen to be done, thus promoting the ideal of “justice for all.”

Due process is intrinsic to the concept of “justice for all.” It guarantees fair treatment, equality before the law, protection against arbitrary power, and promotes transparency and accountability. Without due process, the promise of “justice for all” would be an empty rhetoric. As such, any society committed to justice must also be committed to upholding and enforcing due process.

“Justice for All” and the Supreme Court

While the phrase “justice for all” is not found in the body of the Constitution, the preamble to the Constitution does present a mandate that the Federal Government will “establish justice.” The Supreme Court has often been tasked with interpreting what “establishing justice” means in various contexts and how it should be applied in practice. Most scholars look at four seminal cases in which the Supreme Court has interpreted and applied this mandate: Marbury v. Madison, Wesberry v. Sanders, Plessy v. Ferguson, and Brown v. Board of Education.

First, Marbury v. Madison (1803) was a landmark case in which the Supreme Court, under Chief Justice John Marshall, affirmed its power of judicial review, the power to declare laws unconstitutional. It was a case where the interpretation of “establish Justice” was at the core. The Court held that it was the very essence of justice to ensure that government acts within the limits of the law, and when it doesn’t, there needs to be a mechanism to check and correct it. Judicial review was therefore seen as an essential instrument of justice, ensuring that the laws themselves and the actions of government are just, fair, and align with the Constitution.

Second, Wesberry v. Sanders (1964) centered on the principle of “one person, one vote,” an essential aspect of democratic justice. In this case, the Supreme Court ruled that electoral districts must be roughly equal in population, ensuring that all citizens’ votes carry equal weight. This interpretation of “establish Justice” reflected the belief that justice in a democratic society requires political equality, where each citizen’s voice matters equally in the public decision-making process.

Third, Plessy v. Ferguson (1896) is a historic case that unfortunately reflects a period when the Supreme Court fell short in its mandate to “establish Justice.” The Court upheld state racial segregation laws for public facilities under the doctrine of “separate but equal.” This decision was a significant deviation from the ideal of justice as it endorsed racial discrimination and inequality, contradicting the Constitution’s guarantee of equal protection under the law.

Lastly, Brown v. Board of Education (1954) is a landmark case in which the Supreme Court rectified its previous stance from Plessy v. Ferguson. The Court unanimously ruled that racial segregation in public schools was unconstitutional, stating that “separate educational facilities are inherently unequal.” This case epitomizes the Supreme Court’s role in establishing justice, as it actively sought to dismantle institutionalized racism or uphold the principles of equality and protect the rights of marginalized communities.

“Justice for all” runs as a vein throughout the Constitution—starting with the preamble’s charge that “We the people” will use the Constitution to “establish justice” and then running through the principles embodied therein. Much of this charge is carried out by the Due Process clauses in the Fifth and Fourteenth Amendments, and it has been left to the Supreme Court throughout U.S. history to further ensure that this commission from the Founders to ensure that there is “justice for all” is carried out.

Andrew Langer is President of the Institute for Liberty, as well as Chairman and Founder of the Institute for Regulatory Analysis and Engagement. IFL is a non-profit advocacy organization focused on advancing free-market and limited government principles into public policy at all levels. IRAE is a non-profit academic and activist organization whose mission is to examine regulations and regulatory proposals, assess their economic and societal impacts, and offer expert commentary in order to create better public policies. Andrew has been involved in free-market and limited-government causes for more than 25 years, has testified before Congress nearly two dozen times, spoken to audiences across the United States, and has taught at the collegiate level.

A globally-recognized expert on the impact of regulation on business, Andrew is regularly called on to offer innovative solutions to the challenges of squaring public policy priorities with the impact and efficacy of those policies, as well as their unintended consequences. Prior to becoming President of IFL and founding IRAE, he was the principal regulatory affairs lobbyist for the National Federation of Independent Business, the nation’s largest small business association. As President of the Institute for Liberty, he became recognized as an expert on the Constitution, especially issues surrounding private property rights, free speech, abuse of power, and the concentration of power in the federal executive branch.

Andrew has had an extensive career in media—having appeared on television programs around the world. From 2017 to 2021, he hosted a highly-rated weekly program on WBAL NewsRadio 1090 in Baltimore (as well as serving as their principal fill-in host from 2011 until 2021), and has filled in for both nationally-syndicated and satellite radio programs. He also created and hosted several different podcasts—currently hosting Andrew and Jerry Save The World, with long-time colleague, Jerry Rogers.

He holds a Master’s Degree in Public Administration from Troy University and his degree from William & Mary is in International Relations.

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Guest Essayist: Andrew Langer
Mandate or Law: The American Founders on Warning Against Arbitrary, Tyrannical Dictates Diluting Rule of Law

 

Essay Read by Constituting America Founder, Actress Janine Turner

 

In the realm of United States governance, the terms “mandate” and “law” frequently arise, often creating confusion due to their seemingly overlapping meanings. Both play essential roles in shaping the country’s legal and political landscape, yet they are distinctly different in nature and application—and both must be understood within the context of due process of law, both substantive and procedural.

A law, as per the United States Constitution, is a rule established by the government that dictates the actions of its people. It’s a formal norm that has been approved by a legislative body and, if necessary, signed into effect by the executive branch. Laws are codified in written form and are enforceable by the judiciary. In the United States, federal laws apply to all states and territories, while state laws apply only within their respective jurisdictions.

On the other hand, a mandate in the context of U.S. governance often refers to a policy or requirement that a higher level of government imposes on a lower level. For instance, federal mandates require states or localities to perform certain actions, often under the threat of financial or legal penalties. These mandates may come in various forms, including conditions for receiving federal grants, requirements imposed as a part of federal civil rights laws, or conditions for participating in voluntary federal programs.

Unlike laws, mandates do not necessarily have to go through the same rigorous legislative process. Some mandates are issued by federal agencies as regulations, under the authority granted to them by Congress. Others are issued directly by the executive branch, such as through executive orders.

While a law is a directive that comes with its own enforcement mechanism, a mandate is a requirement that may or may not come with specific penalties for non-compliance. Compliance with a mandate is often tied to the receipt of federal funds. For example, states may be required to comply with certain federal mandates to receive funding for highway construction or education.

In the dynamic landscape of American politics and law, it is essential to note that the boundary between mandates and laws can sometimes blur. As such, ongoing vigilance and discourse are required to ensure the appropriate balance—especially given how both laws and mandates can impact “true” law—which can be viewed within the context of the 5th and 14th Amendments’ guarantees of due process for all citizens,

The founding of the United States was a grand experiment, the creation of a republic aimed at securing the rights and liberties of its citizens. Central to this vision was the rule of law, which the Founders intended as a safeguard against arbitrary and tyrannical rule. The United States Constitution thus enshrines due process as an essential component of legal justice, a bulwark against any effort to dilute the power and relevance of law and order. The twin concepts of substantive and procedural due process, while less known to the general public, are pivotal elements of the due process doctrine and serve as vital tools in safeguarding individual liberties.

Before delving into the importance of both substantive and procedural due process, it is crucial to understand the distinction between the two.

Substantive due process is a doctrine that protects citizens from government actions that could interfere with fundamental rights or liberties. It requires the government to justify any intrusion into personal and economic freedoms with a sufficient and compelling state interest. For instance, the right to privacy and the freedom of speech are protected under this doctrine, and any governmental attempt to restrict these rights must meet a rigorous standard of scrutiny.

Procedural due process, on the other hand, is concerned with the fairness of how a law is applied or a decision is made. It safeguards individuals from arbitrary deprivation of life, liberty, or property by ensuring they receive a fair process, which typically involves notice and an opportunity to be heard. Procedural due process thus protects against the abuse of power, ensuring that the rule of law is upheld even when the government takes necessary actions.

The Founding Fathers were acutely aware of the danger posed by arbitrary laws and mandates that had the force of law but lacked the due process of law. They had experienced firsthand the arbitrary rule of a distant monarch and were determined to construct a system of government that would prevent such abuses.

Substantive due process plays an indispensable role in upholding this vision. By requiring the government to justify any infringement on fundamental rights, it ensures that laws and regulations do not arbitrarily or unjustly infringe on individual liberties. This doctrine serves as a shield, protecting citizens from arbitrary laws that could unduly limit their freedoms.

Procedural due process, meanwhile, acts as a sword, enabling citizens to challenge any governmental actions they believe infringe on their rights. By providing a fair and transparent process for reviewing governmental actions, it ensures that citizens have a meaningful opportunity to contest any perceived injustices.

Timothy Sandefur, a legal scholar, has made significant contributions to the understanding of the phrase “due process of law” in the United States Constitution, specifically emphasizing the importance of the term “of law.” He has argued that “due process of law” is not just about the process itself, but also about the substance of the laws that govern that process, a concept commonly known as substantive due process.

One of the key elements of Sandefur’s argument is the idea that “due process of law” should not be understood as merely a procedural guarantee. Rather, it also provides substantive guarantees against “unfairness.” This understanding is rooted in a deeper interpretation of the Constitution, not limited to the literal wording of the document but also considering its structure, ideas, and history. According to Sandefur, the Constitution’s promise that “no person shall be deprived of life, liberty, or property without due process of law” implies not only that the government must adhere to certain procedures when imposing a deprivation, but also that some acts are inherently off-limits for the government, regardless of the procedures used to implement them​.

Sandefur also discusses the concept of law in this context. He explains that law is the use of government’s coercive powers in service of a general principle of the public good, and it is the opposite of arbitrariness. The law should not be a self-serving tool of those in power. Therefore, the “of law” in “due process of law” ensures that the government’s actions are guided by lawful principles and not by arbitrary or self-serving motives. A lawful government is characterized by general rules that benefit all, rather than specific commands or actions that only benefit those in power. This principle is a fundamental part of due process of law, guaranteeing citizens protection under the general rules that govern society​. In Sandefur’s view, due process of law means that the government may not limit our freedom without good reason. What constitutes a “good reason” is determined by reference to political and legal principles, not merely by legislative whims or self-interest. This view reflects the inherent overlap of “procedure” and “substance” in the understanding of due process of law. To be treated lawfully means to be treated in accordance with general, public principles (substantive) and through established procedures (procedural). Sandefur uses the examples of a vetoed tax bill and a bill establishing an official religion to illustrate the concept of substantive due process. In both cases, even if the procedural steps have been followed, the substantive aspect of the law can make it invalid. The same logic, according to Sandefur, applies to implicit or inherent limits on government power. If the legislature passes a statute that it lacks the authority to make, that statute cannot be considered law, and enforcing it would violate the citizen’s right not to be deprived of life, liberty, or property except by due process of law​​.

In the end, regardless of whether the government is enforcing a law derived from legislation, or a mandate derived from some other government action, the rights to due process must be respected.  Anything short of that respect does serve to dilute “true law” and undermines the protection of the liberty of the people.

Andrew Langer is President of the Institute for Liberty, as well as Chairman and Founder of the Institute for Regulatory Analysis and Engagement. IFL is a non-profit advocacy organization focused on advancing free-market and limited government principles into public policy at all levels. IRAE is a non-profit academic and activist organization whose mission is to examine regulations and regulatory proposals, assess their economic and societal impacts, and offer expert commentary in order to create better public policies. Andrew has been involved in free-market and limited-government causes for more than 25 years, has testified before Congress nearly two dozen times, spoken to audiences across the United States, and has taught at the collegiate level.

A globally-recognized expert on the impact of regulation on business, Andrew is regularly called on to offer innovative solutions to the challenges of squaring public policy priorities with the impact and efficacy of those policies, as well as their unintended consequences. Prior to becoming President of IFL and founding IRAE, he was the principal regulatory affairs lobbyist for the National Federation of Independent Business, the nation’s largest small business association. As President of the Institute for Liberty, he became recognized as an expert on the Constitution, especially issues surrounding private property rights, free speech, abuse of power, and the concentration of power in the federal executive branch.

Andrew has had an extensive career in media—having appeared on television programs around the world. From 2017 to 2021, he hosted a highly-rated weekly program on WBAL NewsRadio 1090 in Baltimore (as well as serving as their principal fill-in host from 2011 until 2021), and has filled in for both nationally-syndicated and satellite radio programs. He also created and hosted several different podcasts—currently hosting Andrew and Jerry Save The World, with long-time colleague, Jerry Rogers.

He holds a Master’s Degree in Public Administration from Troy University and his degree from William & Mary is in International Relations.

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Guest Essayist: Winfield H. Rose
James Otis (1725-1783) Author of “Rights of British Colonies Asserted and Proved” pamphlet, 1763.

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

“…that the King with and by the authority of parliament, is able to make laws and statutes of sufficient force and validity to limit and bind the crown, and the descent, limitation, inheritance and government thereof” is founded on the principles of liberty and the British constitution: And he that would palm the doctrine of unlimited passive obedience and non-resistance upon mankind, and thereby or by any other means serve the cause of the Pretender, is not only a fool and a knave, but a rebel against common sense, as well as the laws of God, of Nature, and his Country…These are their bounds, which by God and nature are fixed, hitherto have they a right to come, and no further…The sum of my argument is, That civil government is of God…That this constitution is the most free one, and by far the best, now existing on earth: That by this constitution, every man in the dominion is a free man: That no parts of his Majesty’s dominions can be taxed without their consent: That every part has a right to be represented in the supreme or some subordinate legislature…” – James Otis, Rights of British Colonies Asserted and Proved, pamphlet, 1763.

James Otis, Jr. was born in and lived all his life in Massachusetts. He was a contemporary of both John and Samuel Adams and was a prominent and effective proponent of American independence. He lived from 1725 to 1783.

Known for his pamphlet “Rights of British Colonies Asserted and Proved,” published in 1763, he was very offended by the Writs of Assistance adopted by the British government in 1761. Otis may or may not have coined the phrase “Taxation without representation is tyranny” but he certainly believed and proclaimed it. According to the Smithsonian Magazine (https://www.smithsonianmag.com/history/transformative-patriot-who-didnt-become-founding-father-180963166/),

“As John Adams told it, the American Revolution didn’t start in Philadelphia, or at Lexington and Concord. Instead, the second president traced the nation’s birth to February 24, 1761, when James Otis, Jr., rose in Boston’s Massachusetts Town House to defend American liberty. That day, as . . . a rapt, 25-year-old Adams—listened, Otis delivered a five-hour oration against the Writs of Assistance, sweeping warrants that allowed British customs officials to search any place, anytime, for evidence of smuggling. . . . Otis denounced the British king, parliament, and nation as oppressors of the American colonies—electrifying spectators. ‘Otis was a flame of fire,’ Adams recalled years later. ‘American Independence was then and there born.…Then and there was the first…opposition to the arbitrary claims of Great Britain.’”

We say Washington was the father of our country and Madison was the father of the Constitution. According to Adams, we likewise need to say that Otis was the father of our independence.

Tyranny was an issue for our revolutionary forefathers but it was not the primary issue. The primary issue was legitimacy or, more accurately, the lack of legitimacy. The lack of legitimacy created the tyranny under which our American ancestors were then living, and that lack of legitimacy was due to the absence of the consent of the governed. The absence of this consent could have been remedied by the British government’s granting their American colonies representation in Parliament but it was too arrogant and stubborn to do so. They paid for this mistake with the loss of their American empire.

Looking back with hindsight, one may ask why the British made this political blunder. Careful arithmetic would have shown the numerical threshold beyond which they should not go, and they could have granted the Americans a safe number of representatives in Parliament, thereby acquiescing to their demand and quieting the uproar. This would have been a practical solution, but the British were not interested in a practical solution. They adhered to the principle that the American colonists were neither citizens nor subjects but vassals without rights totally subject to rule from London.

One might also reply that each American colony had a legislative assembly, and that is true. But, according to the complaints against the British government Jefferson listed in the Declaration of Independence, by the 1760s those assemblies had been reduced to irrelevance.

We would be remiss if we did not remember that King George III had ascended the throne in 1760 at the age of 22 and that the French and Indian War (1754-1763) was underway at this time. This war and its aftermath created severe financial problems for the treasuries of both Britain and France which, in turn, then led to ill-fated attempts to raise taxes and ultimately to both the American and French Revolutions.

Not only had the French and Indian War been costly to fight, it left the British with a very long western frontier to defend, a frontier that extended all the way to the Mississippi River. This was the time of Daniel Boone when American settlers wanted to move westward past the Appalachians. Defending this frontier was going to be costly. Thereby came the need for tax measures such as the Stamp Act.

A line in the Otis quote at the beginning of this essay is especially informative:

“The sum of my argument is . . . That this constitution [the British constitution] is the most free one, and by far the best, now existing on earth: That by this constitution, every man . . . is a free man: That no parts of his Majesty’s dominions can be taxed without their consent: That every part has a right to be represented in the supreme or some subordinate legislature.”

Otis and many others correctly believed the existing British constitution, based on the Glorious Revolution of 1688 and the English Bill of Rights of 1689, was “by far the best now existing on earth.” The problem was that King George III and Parliament had corrupted it (as Edmund Burke correctly observed) and thereby had intolerably violated the natural rights of their fellow citizens in America. When the British created their Commonwealth of Nations many years later, knowingly or not, they followed the principles Otis enunciated in 1763.

Winfield H. Rose, Ph.D., is Distinguished Professor of Political Science Emeritus at Murray State University.

 

 

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Guest Essayist: George Landrith
Careful Observance Upon Forming and Executing Laws: Principle of the Rule of Law, Not of Men

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

The Rule of Law comprises a number of important legal doctrines designed to make our governmental system and our society more just and fair. It starts with the idea that we are all equal before the law and accountable to the same laws. But it also includes the concept that those laws should be made in public and not in secret; that the law should be evenly applied and not selectively applied, that all laws must be applied prospectively — meaning a law cannot punish behavior that occurred before the law’s existence; that government power cannot be exercised arbitrarily or capriciously, and that we should all have access to due process and an independent and fair-minded decision maker before our life, liberty or property can be taken from us.

For most of human history, most people have been ruled by individuals who had almost unquestioned power. For example, for much of Europe’s history, it was ruled by kings, who claimed “the divine right of kings” – meaning that no one on earth could question or challenge their rule. Such a ruler could imprison those he or she didn’t like or found annoying simply on a whim. And they had power to make laws that would be applied solely to those they didn’t like or had some grievance with.

Magna Carta officially ended the “Divine Right of Kings” by placing very modest limits on the power of the king. But modest limits on the arbitrary rule of men doesn’t qualify as the Rule of Law.

Fortunately, America’s Founders saw the Rule of Law as a foundational element of the society and nation that they sought to build. Thomas Paine in his seminal work, Common Sense, wrote that “in America, the law is King…” — meaning that there would be no king to rule over Americans. The law, as an impartial standard, would govern Americans.

Part of our national heritage in the Rule of Law means that we ought not care whether we like or dislike the accused, or whether we agree with the politics of the accused. We ought to be concerned only about the law and its equal and fair application. The Rule of Law is a major check against the abuses of government.

Soviet dictator Joseph Stalin once described his totalitarian view of the law as — “show me the man, and I’ll find the crime.” That is obviously not the Rule of Law. That is a prime example of the arbitrary and capricious rule of man.

While America has been an example to the entire world of the Rule of Law, it has not always been perfect in its application. But our commitment to the Rule of Law is noteworthy all over the globe and it has helped to make us “the land of the free and the home of the brave.”

America cannot survive as a beacon of hope and a land of freedom and opportunity for all if the Rule of Law is sacrificed upon the alter of political expediency. Americans of all political stripes must demand that the government play by the rules, live within the limitations placed upon it by our United States Constitution, and honor and uphold the principles of the Rule of Law.

One informal test that can help us judge the relative health of the Rule of Law in our nation is: does the government treat us like subjects or citizens?

Sir Thomas More lived from 1478 to 1535 AD and was an English lawyer, judge, and author. He was a strong and heroic advocate of the Rule of Law. In 1535, More did not attend the coronation of King Henry VIII’s latest wife, Anne Boleyn as Queen. Not attending the coronation was not an act of treason and, in a letter, More had wished the King and his new bride much happiness. And while most of the nation had not attended, More’s absence angered the King because of his reputation and influence.

After a number of failed attempts to punish More for not attending the coronation, the King came up with a plan to entrap More. He demanded that More sign a statement that King Henry was the head of both the nation of England and the Church of England. More had made no statements against the King’s authority, but he was unwilling to sign such a statement because it required him to repudiate his Catholic faith.

More made it clear to the King that he was not refusing to sign because he challenged the King’s authority. He simply was unwilling to repudiate his faith. But this did not matter; the King had him arrested and imprisoned in the Tower of London and eventually executed for treason.

A Man for All Seasons is a play and movie based upon Sir Thomas More’s life. In the play, the King pressures More to sign the statement and promises to pardon him if he will sign. More asks the King, I’ve acknowledged your right to rule and your Queen, “then why does your Grace need my poor support?”

The King’s response was, “Because you’re honest… and what is more to the purpose, you’re KNOWN to be honest. There are those … who follow me because I wear the crown; and those … who follow me because they are jackals with sharp teeth and I’m their tiger; there’s a mass that follows me because it follows anything that moves. And then there’s you….”

Later, a friend of More’s tried to talk him into signing a statement to avoid the King’s wrath by saying, “Oh, confound all this…. Thomas, look at those names…. You know those men! Can’t you do what I did, and come with us, for fellowship?” More responded, “And when we stand before God, and you are sent to Paradise for doing according to your conscience, and I am damned for not doing according to mine, will you come with me, for fellowship?”

Later, Oliver Cromwell tried to bully More into signing the statement. More objected to being bullied and said, “You threaten like a dockside bully.” Cromwell responded, “How should I threaten?” More responded, “With justice.” Cromwell, then replied, “Oh, justice is what you’re threatened with.” Thomas More said, “Then I’m not threatened.” Obviously, More understood that a process focused on right and wrong and justice and fairness would not harm him.

Another interesting conversation in A Man for All Seasons shows why the Rule of Law must protect everyone’s rights — no matter how unpopular or disliked. More’s son-in-law, William Roper, while discussing the Rule of Law and More’s defense of it asked, “So, now you give the Devil the benefit of law!” More responded, “Yes! What would you do? Cut a great road through the law to get after the Devil?” Roper responded, “Yes, I’d cut down every law in England to do that!” Sir Thomas More’s response is both insightful and correct:

“Oh? And when the last law was down, and the Devil turned ‘round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil the benefit of the law, for my own safety’s sake!”

More was no fan of the Devil as he was a very religious man and was executed because of his commitment to his faith and refusal to bend to the will of the King. But his point was important and true — we cannot have laws and judicial processes that only protect those that we like or approve of. Even those we despise must be afforded the benefits of the Rule of Law or we do not have the Rule of Law.

Thomas Paine’s description of America as a place where the law is king will hopefully always be true. Our nation’s freedom depends upon it. Thus, Americans who value freedom must, as Thomas More did, uphold, support and champion the Rule of Law. There is no freedom without it.

George Landrith is the President of Frontiers of Freedom. Frontiers of Freedom, founded in 1995 by U.S. Senator Malcolm Wallop, is an educational foundation whose mission is to promote the principles of individual freedom, peace through strength, limited government, free enterprise, free markets, and traditional American values as found in the Constitution and the Declaration of Independence.

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Guest Essayist: Eric C. Sands
Supreme Court of the United States, photo by Joe Ravi.

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

The United States Constitution does not say much about the Judiciary, listing it third among the articles dealing with the main institutions of government. For some, this implies that the Judiciary was intended to be last in order of importance and the most insignificant of the institutions overall. While the three branches were intended to be equal in terms of legitimacy and functionality, they were not equal in terms of power.  The Legislature wielded the awesome power of the purse and directed the affairs of government. The Executive held the only slightly less impressive power of the sword and executed the will of the Legislature. But what of the Judiciary? What power does it hold and what was its role in constitutional government intended to be?

One might be forgiven for thinking that Article III was something of an afterthought. There is a sense to the Article of being incomplete and not fully thought out. It begins by saying that the judicial power shall be given to a Supreme Court of the United States, but then leaves a lot unsaid. The Article never defines what the judicial power is or how it is used. It never explains the nature of the judicial power or how the Judiciary might go about using it. Its existence in the Article is a mystery. The Article then goes on to tell us only a little about the Court. Its size will be determined by Congress. Judges will be appointed by the president and confirmed by the Senate. Yet no qualifications are listed to be a Supreme Court Justice. There is no age requirement, no experience requirement. In fact, a person does not even have to possess a law degree.

The Article continues saying that the judges will hold their tenures for life on terms of good behavior, a provision justified to insulate judges from the whims of public opinion that is much more likely to sway the other branches of government. Following this, there is the Cases and Controversies Clause outlining what kinds of cases the Supreme Court can hear. This includes, controversially, cases under the equity power which is not clearly defined by the Constitution. A distinction between original and appellate jurisdiction comes next, followed by some clauses dealing with jury trials and trial for treason. And that is it. Compared to what preceded it in Article I and Article II, this is not much.

The lack of content in Article III, according to one of the Founders, was by design. It was a reflection on the nature of the institution and the more subservient role it played in American constitutional government. In Federalist 78, Alexander Hamilton gave a defense of the Judiciary and argued that the Court possessed neither force nor will, but merely judgment. This made the Court the “least dangerous” branch of government and the least threatening to the Constitution. According to Hamilton, “it proves incontestably that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks.” This further adds to why the judges need lifetime tenures and such radical independence – it is the only way to ensure justice without the interference of the political branches of government or public opinion.

So, we see the task of the Supreme Court as interpreting the laws passed by Congress, exercising its judgment over what those laws mean and how they should be applied. But is this all? Not according to Hamilton and other Federalists. The Court also had a more fundamental duty to protect the Constitution. It preformed this function through the power of judicial review. Judicial review is the power of the Court to determine that government actions conflict with the Constitution and are, therefore, null and void. It was first used in a Supreme Court case, Marbury v. Madison, but was held to be a part of the Court’s power by many Federalists at the founding. Anti-federalists, such as Brutus, denied that the Court possessed this power and claimed that if it had been intended to give the Court such an extraordinary power, the Founders would have written it into the Constitution. The president cannot not even completely override a bill passed by Congress, so it would be incredible if this unelected body of judges could do what the president could not. If the Framers had intended judicial review, they would have enumerated it.

Federalists countered by saying that the power of judicial review was enumerated when Article III said that the judicial power shall be vested in a Supreme Court. What else could the judicial power be but the power of judicial review? Though it was not stated explicitly in the Article, it was clearly implied in its language. But there was an even stronger argument for judicial review. If the Court lacked this power, how would it play a role in the separation of powers and checks and balances? The Court would effectively be relegated to playing the role of an advisory body, making suggestions to the other branches about constitutionality but not having the power to compel anyone to listen. This would effectively destroy the purpose of an independent judiciary and render the Court not just weak but impotent. Thus, judicial review must be part of the design of constitutional government and a vital part of the principal of the judicial branch.

Eric C. Sands is Associate Professor of Political Science and International Affairs at Berry College. He has written a book on Abraham Lincoln and edited a second volume on political parties.

Guest Essayist: Ben Slomski

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

The delegates who met in 1787 for the Constitutional Convention faced a difficult task when it came to designing the nation’s executive branch. Americans of the time tended to look upon a strong executive with suspicion. This was a natural response, given the previous experience with the English monarchy. Under the Articles of Confederation, there was no independent executive. This lack of a strong executive turned out to be one of the central defects of the Articles. National authority was often just ignored by the states and disobedience towards democratically-enacted laws culminated in Shays’ Rebellion in Massachusetts. Delegates at the Constitutional Convention were challenged with creating an independent executive who would be powerful enough to enforce the laws effectively yet not so strong that he could overpower the other republican institutions of government. The result of this work was the American presidency.

The text of the United States Constitution recognizes the difficult nature of executing the law. Authority is placed in the president by the vesting clause in Article II, Section 1 which states that “The executive Power shall be vested in a President of the United States of America.” This should be contrasted with the vesting clause in Article I, Section I which grants certain legislative authority to Congress: “All legislative Powers herein granted shall be vested in a Congress of the United States.” Congress only receives the legislative powers specifically granted to it in the Constitution. The executive power granted to the president, however, is not limited to certain powers “herein granted.” Some specific examples of the president’s executive power are given in Section 2. He is the Commander in Chief of the military, can pardon crimes against the U.S., and makes treaties with foreign nations, among other powers. The powers listed in Section 2 are not an exhaustive list but rather specific instances of the way in which executive power can be exercised.

Article II, unlike Article I, does not comprehensively detail the scope of the president’s executive power because it cannot be precisely defined. The president’s function is to execute the laws passed by Congress and to “preserve protect and defend the Constitution” as enumerated in the presidential oath of office. What is necessary to enforce the law and defend the nation depends on the innumerable variety of circumstances that will occur in human life. As human beings cannot predict every emergency that might occur, they cannot list every single circumstance in which the executive can act without restricting the president during an unforeseen crisis. Therefore, the Founders wisely left the executive power broadly defined so that the president can act in whatever situation that might arise.

The broad nature of executive power does not mean that the president’s power is unlimited or arbitrary. For the president to have constitutional power to do something, the act must be executive, meaning that it does not make law but carries out existing laws. The president cannot usurp legislative power from Congress just as Congress cannot interfere with the president’s execution of the laws. Presidents also cannot nullify congressional laws by refusing to execute them. The president’s broad power is constrained by the constitutional system in which it is placed. Senate approval is needed for the ratification of treaties and the confirmation of many presidential appointees. Congress can always restrict the president through the denial of funding or impeachment. The Supreme Court can review the constitutionality of executive actions in legal cases. The people retain the ultimate check of voting the president out of office. The president is neither a dictator nor a pawn of Congress.

The constitutional insight that there must be a powerful and independent president who is defined by the executive functions he must perform was expressed well by Alexander Hamilton in Federalist No. 70. Here he wrote that:

“Energy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks: it is not less essential to the steady administration of the laws; to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy.”

Government is ineffective unless its laws are obeyed and individuals will not respect the law unless there is a strong enough executive to ensure there is sufficient force behind the laws. A powerful president is of course needed to command the military and defend the nation from invasion. It is equally important to ensure that the government is well-administered and that laws are enforced consistently and effectively.

The genius of the Constitution is that it reconciles the need for a powerful executive with the constraints of republican government. George Washington embodied this idea as the first president. He recommended legislative measures to Congress, vetoed bills on both constitutional and policy grounds, proclaimed American neutrality between France and Britain, and personally led federal troops to suppress the Whiskey Rebellion. These energetic actions were not taken as the personal prerogatives of a king but rather as the exercise of constitutional power granted by the people to a republican servant. Washington understood the president to be the “Chief Magistrate” who must remain aware “of the confidence which has been reposed in me by the People of United America.” The executive’s power must be wielded with the humility and prudence required of a republican governing statesman.

Benjamin Slomski is Assistant Professor of History and Political Science at Ashland University.

 

 

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Guest Essayist: Scot Faulkner
In 1619, the Virginia House of Burgesses met in the Jamestown Church, the first elected legislative body in America.

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

In advocating for establishing the Legislative Branch in the United States Constitution, James Madison and Alexander Hamilton, writing under “PUBLIUS,” stated in Federalist No. 52:

“First. As it is essential to liberty that the government in general should have a common interest with the people, so it is particularly essential that the branch of it under consideration should have an immediate dependence on, and an intimate sympathy with, the people. Frequent elections are unquestionably the only policy by which this dependence and sympathy can be effectually secured…. It is a received and well-founded maxim, that where no other circumstances affect the case, the greater the power is, the shorter ought to be its duration.”

Madison and Hamilton explained how the Legislative Branch was fundamental to Americans remaining in control of their own government in FEDERALIST No. 57:

“The House of Representatives is so constituted as to support in the members an habitual recollection of their dependence on the people. Before the sentiments impressed on their minds by the mode of their elevation can be effaced by the exercise of power, they will be compelled to anticipate the moment when their power is to cease, when their exercise of it is to be reviewed, and when they must descend to the level from which they were raised; there forever to remain unless a faithful discharge of their trust shall have established their title to a renewal of it.”

Binding the Legislative Branch to the people built upon the precedents from America’s colonial period.

The Royal Charter that established Jamestown in Virginia evolved from governance by the Charter holders into governance by the King’s Representative (Royal Governor) and his Advisory Council. When the settlers demanded their own voice, the Virginia House of Burgesses, in 1619, became the first democratically elected legislative body in America.

The House of Burgesses became a proving ground for what would become the U.S. House of Representatives. Drawing upon British tradition, revenue and spending bills originated in the House instead of the “upper chamber.” Drawing from British tradition, the members of the House held their positions for short periods of time, the better to be held closely accountable by those they represented.

Tying government closely to the people is foundational to America. The reason America is a “federal” system, and not a “national system,” is to preserve state and local government. This assures most public policy and public activity is closest to the people it serves and reflects their diversity. Serving a New York City neighborhood is very different from serving a rural community in Montana.

America’s diversity is embodied in our nation’s motto: “E Pluribus Unum” – out of many, one. Governing the nation of America is institutionalized in the Tenth Amendment of the U.S. Constitution:

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

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

Except for Switzerland and Germany, European governments are national. Their policy and programs are based on “one size fits all.” National governments ultimately amplify regional and ethnic tensions. England’s Acts of Union with Scotland (1707) and Ireland (1801) spawned countless conflicts. Today, Scotland and Wales have separate Parliaments. Ireland divided itself into a Free State and Northern Ireland in the wake of years of violence (1921). England leaving the European Union in January 2020 reflected what happens when a weak parliament was dominated by a powerful and unaccountable bureaucracy.

America’s federal structure, emphasizing government closest to the people, was chronicled by the Frenchman, Alexis Clerel, the Viscount de Tocqueville.

“Democracy in America” was published in two volumes (1835 and 1840). It remains a foundational document describing how Americans benefit from local government.

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

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

de Tocqueville recognized how Americans preserving local governance serves as a model for a better world:

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

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

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

Scot Faulkner is Vice President of the George Washington Institute of Living Ethics at Shepherd University. He was the Chief Administrative Officer of the U.S. House of Representatives. Earlier, he served on the White House staff. Faulkner provides political commentary for ABC News Australia, Newsmax, and CitizenOversight. He earned a Master’s in Public Administration from American University, and a BA in Government & History from Lawrence University, with studies in comparative government at the London School of Economics and Georgetown University.

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Guest Essayist: Scot Faulkner

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

On November 19, 1863, President Abraham Lincoln spoke immortal words about the eternal mission for all Americans: “that government of the people, by the people, for the people, shall not perish from the earth.”

Citizens holding government accountable begins with knowing what their government, at all levels, is doing.

Two long-standing legal concepts provide the framework for citizens being eternally vigilant and government officials being consistently accountable: government documents should be public and government meetings should be public.

During the Virginia Ratifying Convention for the United States Constitution, Patrick Henry asserted public knowledge was the bulwark of protecting freedom, “The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them.”

“Where are your checks in this government?…The most valuable end of government is the liberty of the inhabitants. No possible advantages can compensate for the loss of this privilege.”

Patrick Henry’s linkage of protecting liberty to citizen access echoed James Madison’s commentary in Federalist 49:

“As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory, to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new-model the powers of the government, but also whenever any one of the departments may commit encroachments…it must be allowed to prove that a constitutional road to the decision of the people ought to be marked out and kept open.”

Madison raised concerns about those who aspire to unbridled power.

“The same influence which had gained them an election into the legislature, would gain them a seat in the convention. If this should not be the case with all, it would probably be the case with many, and pretty certainly with those leading characters, on whom every thing depends in such bodies…it is the reason, alone, of the public, that ought to control and regulate the government.”

Public access to view the proceedings of House and Senate began in December 1795.

The rapid growth of the Federal Government during President Franklin Roosevelt’s “New Deal” raised concerns about public access to Executive Branch documents and proceedings. Many of Roosevelt’s new agencies had unprecedented powers to create laws and regulations outside the reach of Congress. On June 11, 1946, the Administrative Procedures Act (APA) was enacted to re-establish balance between the Legislative and Executive Branches. The APA also outlined how the public would be informed and allowed to comment on Executive Branch actions:

  1. to require agencies to keep the public informed of their organization, procedures and rules
  2. to provide for public participation in the rulemaking process, for instance through public comment
  3. to establish uniform standards for the conduct of formal rulemaking and adjudication
  4. to define the scope of judicial review

The APA had its limitations as bureaucrats continually found ways to avoid compliance. A more explicit federal law mandating public access to unclassified government meetings, was the Government in the Sunshine Act which was enacted September 13, 1976. Similar “Sunshine Laws” were enacted among state and local governments. However, to this day, citizens still have to file lawsuits to enforce public access as elected and appointed officials fail to provide “adequate public notice” to hide questionable actions.

The practice of the public accessing of public documents began on December 2, 1766, ten years before the American Revolution. Sweden passed the “Freedom of the Press Act.” Among other things—it gave Swedish citizens access to uncensored government documents. This was the first “freedom of information” law in history.

The world’s first law requiring “publicity for official documents” was initiated by the Finnish-Swedish enlightenment thinker Anders Chydenius, a member of the Swedish Diet (Parliament).

“No evidence should be needed that a certain freedom of writing and printing is one of the strongest bulwarks of a free organization of the state, as, without it, the estates would not have sufficient information for the drafting of good laws, and those dispensing justice would not be monitored, nor would the subjects know the requirements of the law, the limits of the rights of government, and their responsibilities. Education and ethical conduct would be crushed; coarseness in thought, speech, and manners would prevail, and dimness would darken the entire sky of our freedom in a few years.”

Chydenius’ Freedom of Print Act was intended to vitalize political discussions. To achieve this objective, Chydenius asserted it was essential that the citizens had access to official documents in order to see how the state was run. Seven of the ordinance’s fifteen paragraphs were dedicated to detailing this public access.

While the Administrative Procedures Act in America mandated information access, it rarely happened. Formalizing “Freedom of Information Access” for American citizens took longer. The American Society of Newspaper Editors commissioned Harold L. Cross, legal counsel for the New York Herald Tribune, to investigate the issue of excessive government secrecy. Cross’s 1953 report was published as a book titled The People’s Right to Know.

Cross wrote that virtually every part of American government operated under what amounted to an “official cult of secrecy”; that this secrecy had become “a breeding ground for corruption; that it was leading to a rise in public mistrust in government; and that all of these things combined were doing serious damage to American democracy itself.” Cross’s 400-page report made the case that Congress must craft new legislation that gave American citizens greater access to the inner workings of their government. In the early 1950s, The People’s Right to Know became a manual for the blossoming “freedom of information” movement.

In 1955, former businessman John Moss (D-CA) began a 12-year effort to codify Cross’s recommendation by passing the Federal Freedom of Information Act (FOIA).

On June 20, 1966, it passed the House of Representatives (306 to 0). It was then sent on to President Lyndon Johnson.

Johnson opposed the legislation but allowed it to become law on July 4, 1966.

On this 4th of July, we should celebrate this milestone in the public’s power to observe government decisions and maintain checks on government power.

It reminds us that citizens must remain constantly vigilant to protect our God-given rights.

Scot Faulkner is Vice President of the George Washington Institute of Living Ethics at Shepherd University. He was the Chief Administrative Officer of the U.S. House of Representatives. Earlier, he served on the White House staff. Faulkner provides political commentary for ABC News Australia, Newsmax, and CitizenOversight. He earned a Master’s in Public Administration from American University, and a BA in Government & History from Lawrence University, with studies in comparative government at the London School of Economics and Georgetown University.

Click here for First Principles of the American Founding 90-Day Study Schedule.
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.