Guest Essayist: Andrew Langer

In making the case for the ratification of the Constitution, the authors of the Federalist papers (Alexander Hamilton, James Madison, and John Jay) routinely looked to history for examples of what to follow, and, almost more importantly, what shouldn’t be followed. The Constitution, of course, was to be an improvement over the previous Articles of Confederation, and document whose flaws in the separation and balance of powers necessitated the drafting of the Constitution itself.

The Articles of Confederation was also built on historic example, and among these was the 1579 constitution of the Netherlands provinces—the subject of Federalist #20, authored by Madison. Created as a result of the “Union of Utrecht”—a treaty created between the seven northern Dutch provinces who had allied with one another to oppose the Habsburg-controlled southern provinces, this constitution laid out the shared power structure between these unified territories.

But Madison recognized that the flaws endemic in the document creating this Dutch confederacy were duplicated by the flaws in the Articles of Confederation. In laying out his criticism of the Netherlands Constitution, he said the following:

“What are the characters which practice has stampt upon it? Imbecility in the government; discord among the provinces; foreign influence and indignities; a precarious existence in peace, and peculiar calamities from war.”

In other words, because of the structural flaws in how this constitution laid out the relationship between the provinces, it left this union weak and vulnerable. Madison went on to say, “It was long ago remarked [that] nothing but the hatred of his countrymen to the House of Austria, kept them from being ruined by the vices of their constitution.”

To be fair, there was a flaw in Madison’s essay (and it was a flaw repeated by others), in that Madison suggested that votes on issues of importance to these provinces had to be unanimous. This was untrue.  William Riker, a political scientist and expert on federalism, said this in his 1957 journal article, “Dutch and American Federalism”:

“Nearly all the framers who spoke on the subject seemed certain of one statement about the Netherlands; and in this they were mistaken. Nearly all seemed to believe that the decisions of the general government required unanimity of the seven provinces-an even more stringent requirement than in the Continental Congress. But, misled by inaccurate commentaries, they did not know what this requirement meant or how it worked in practice or what significance it had in Dutch politics.”

Riker noted how favorably many of the founders (other than Madison) looked at the governmental practices within the Netherlands—which should come as no surprise given the breadth of Dutch colonial activity in the continent prior to the American founding.  He said:

“[W]hen the records of the Constitutional Convention and the state ratifying conventions are superficially examined, it appears that our heritage from the Netherlands is considerable. The records show that members of the conventions referred to the government of the United Provinces more frequently than to any other modern European government, except that of Great Britain.”

It should be noted that Professor Riker’s views on federalism changed over time as his expertise on the subject grew.  In his 1987 book, The Development of American Federalism, he admits the following in the introduction:

“Given my ideological shift [from “New Dealer” to “anti-statist”], I have also changed my evaluation of federalism. Initially I regarded it as an impediment-minor, perhaps—but still an impediment to good government. Now I regard it as a desirable, though still minor, restraint on the leviathan.”

But contemporaneous accounts underscore the relationship between the 1579 constitution and the Articles of Confederation. Pieter Paulus, who later became the first President of the Batavian Republic, wrote:

“It is surprising and to the credit of our ancestors, that these inhabitants of another continent, after a lapse of some two centuries, adopted practically the same measures and arrangements as they did when drafting the Union of Utrecht.”

Yet, here we have Madison’s criticism, a criticism which may have been informed by his fellow-Virginian, William Grayson, a lawyer and soldier who later became a member of the United States Congress.  Grayson had deep concerns about the Articles of Confederation, and how similar it was to the 1579 Netherlands constitution, writing to Madison:

“It is no wonder our Government should not work well, being formed on the Dutch model where circumstances are so materially different.”

This becomes reflected in Madison’s concluding remarks for Federalist #20, in which he says:

“The important truth, which it unequivocally pronounces in the present case, is, that a sovereignty over sovereigns, a government over governments, a legislation for communities, as contradistinguished from individuals; as it is a solecism in theory; so in practice, it is subversive of the order and ends of civil polity, by substituting violence in place of law, or the destructive coertion [sic] of the sword, in place of the mild and salutary coertion [sic] of the magistracy.”

The answer then is made manifest in the choices made in the structure of the Constitution as it was ultimately adopted: carefully enumerated powers for the federal government, a balancing of those powers between branches of government, and the retention of all power not surrendered in the hands of the people themselves as well as state governments.

This theme is made manifest throughout the Constitution and, in just one example, one can note the balance and contrast between what is discussed in Article 1, Section 10, and Article IV.  In Article I, Section 10, the founders placed very clear limits on the extent of state power—by making it clear, for example, that states cannot coin their own monies, nor could they negotiate treaties on their own. The reason for this is clear: building on the warning echoed by Madison in Federalist 20 (in part because of how he understood the flaws of the 1579 Netherlands Constitution), the drafters knew that while there might be intense internal debate between the states, that once an issue reached America’s shorelines, the nation had to speak with one voice. It would be chaos, for instance, if Massachusetts were negotiating one treaty with Spain, and Maryland were negotiating something different with Spain, or with an enemy of Spain.

In the same way that the federal government is responsible for regulating interstate commerce, these drafters also knew that it would likewise be chaotic if each state were creating its own currencies. So, they limited the power of the states in that regard as well.

But like all the other checks and balances, the trade-off to this is seen in Article IV—while the powers of the states are limited in terms of things like treaties and currency creation, Article IV gives a guarantee of protection to states. The federal government agrees to defend a state against military threats, and at the same time offers assurances in terms of working to make sure that each and every state treats each and every other state fairly. Article IV also makes guarantees as to the admission of new states into the Union, and a guarantee of a “republican” form of government.

With all of that in mind, the framers still felt it necessary to include the Supremacy Clause (Article VI, Clause 2), which says that the Constitution, and any laws that are created by Congress, are the “supreme law of the land.”  So long as Congress creates laws that are based on the powers delegated to the federal government by the people (and the states), should those laws come into conflict with state laws, the federal laws take precedence.

But those laws have to be within those enumerated powers—and this is central to many of the policy and political debates of today. For much of the 20th century, the federal government’s authority was virtually unlimited in terms of legislation, and thus holding sway over competing laws that might be enacted by state legislatures, due to an expansive interpretation of the Commerce Clause (Article I, Section 8, Clause 3).

But in a series of Supreme Court decisions in the 1990s, the limitations on federal power were re-asserted. The Supremacy Clause remains, but that “leviathan,” as Professor Riker described it, is checked by the limitations on, and diffusion of, that power within our system of federalism.

Andrew Langer is President of the Institute for Liberty.



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Guest Essayist: Andrew Langer

In the previous essay, we discussed how classical history (i.e., the history of Greek and Roman political structures) informed the debates over the Constitution—and how James Madison drew on history to make the case for the Constitution’s immediate necessity and importance.

In this essay, we focus again on Federalist #38, but this time discussing how the same examination of historic political structures informed the architecture or structure of the U.S. Constitution itself.

Madison and most, if not all, of the other founders were students of classical history, and well-understood how governance had changed through the ancient Mediterranean societies. They learned how Athenians’ political choices compared and contrasted with those of the Spartans and Minoans, and how the Roman Republic came into existence, but eventually turned into an imperial tyranny.

When reviewing these governments, which ranged from benign monarchies to democracies to despotic autocracies, the founders came to a stunning conclusion: that these historic examples pointed to the necessity of a balancing of powers and interests. Concentrate too much power in one person or one body, and that power could become corrupted as happened in Rome as respect for the rule of law degenerated over time, giving rise to the imperial dictatorship.  Rely too much on pure democracy, and it could descend into the rule of the mob, something equally feared.

As Benjamin Franklin is alleged to have said, “Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote.”

The statement is a truism (regardless of whether it was Franklin who said it first!), reflected, in turn, in how the architects of the Constitution ultimately designed our federal government. Our system is one that is rooted in the principles of democratic governance—we elect our legislators and cast votes in a presidential electoral system.

But in order to stave off the possibility of “mobocracy,” those democratic ideals are balanced with republican limitations—from a Bill of Rights which underscores limitations on how government exercises its power, to the idea that each branch of our federal government has its powers specifically enumerated.

Consider, for example, the voicing of unpopular ideas—a subject hotly debated today. There are some, there have always been some, who would like to see unpopular speech outlawed or severely restricted, whether it is so-called “hate speech” or speech that is sharply critical of America, to the point of the burning of a flag. In a pure, Athenian-style democracy, the majority declaring this speech outlawed would be it—the “mob” would have spoken.

But our Constitution recognizes that it is unpopular speech that requires the greatest amount of protection; popular speech requires no protection, after all. So, regardless of what the majority of citizens might demand, and regardless of what the Congress might enact, or the Executive Branch attempts to pursue through the administrative process, the First Amendment presents a counterbalance to a majoritarian tyranny.

It is that explicit assignment of powers, and the careful balancing of those powers against one another, that serves to protect the rights of individual Americans.

In Article I, Section 8 of the Constitution, the legislative powers of Congress are laid out. In Article II, the Executive Branch is given the power to interpret and carry out the laws Congress has passed. Under Article III, the Judicial Branch enforces those laws and ensures that both the laws that have been passed and the interpretation and administration of those laws by the Executive Branch withstand constitutional scrutiny.

In theory, this is supposed to ensure that no branch is more powerful than any other branch—and that the creation and administration of federal policies does not injure or harm the individual rights of American citizens.

In theory.

The ongoing concern is similar to that which brought the aforementioned descent of ancient Rome from republic to dictatorial empire—an increasing disrespect for the regular order of governmental processes and the overall rule of law. In Rome, as chaos and corruption grew, first Julius Caesar and then Augustus offered Romans greater safety and security in exchange for their democratic political rights. The result was the end to any real sort of Roman republic and centuries of despotism.

Again, it was Benjamin Franklin who warned, “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”

In modern America, we see this playing out in a myriad of ways—from those who seek to simply circumvent the Constitution’s rules to those who use Congress’ political propensity to pass vaguely defined pieces of legislation as a pretext to increase the power of the federal Executive Branch.

Because of the manner in which power is distributed and balanced, if Congress passes a piece of legislation in which the subject-matter is vaguely defined, the Executive Branch can, in turn, define it. The result is a situation in which, while the Executive Branch isn’t creating law out of “whole cloth,” the power of the Executive Branch is expanded.

Take the Clean Water Act of 1972, a piece of legislation with the noble purpose of dealing with America’s polluted waterways of the 1970s—rivers were, literally, catching on fire! In it, Congress declared that we cannot “pollute” a “navigable water of the United States.”

But Congress didn’t define “pollution,” didn’t define “navigable,” didn’t define “water of the United States”—and for a half-century, all of those terms have been subjected to intense debate as various presidential administrations have offered a varying degree of definitions, some focusing on the plain-language of the act, but others which seem to encircle not just America’s major rivers but even disparate and unconnected bodies of water, or even patches of dry land, that would otherwise have been under the regulatory purview of state and local governments (the definition of “Waters of the United States” or “WOTUS” is once again under debate in Washington).

In the end, this balancing of interests is supposed to protect the population at large to prevent the kind of overreach we have been discussing and to also ensure that we “look before we leap” in terms of public policy solutions. This is especially true when it comes to foreign policy.

The President is Commander-in-Chief of the U.S. armed forces and the military operates under the auspices of the federal Executive Branch.  But it is only Congress that can declare war.  The President, and his duly-designated officers, have the power to negotiate treaties, but it is within the power of the Senate to ratify them. Moreover, despite the power of the President and the Executive Branch to respond to national emergencies and international crises, and setting aside the legitimacy of the War Powers Resolution which asks the President to report on such actions within 48 hours of them being undertaken, Congress retains the power of the “purse strings” i.e., the power to actually fund the operations of the U.S. government, so the Executive Branch is further restrained.

In all, taking a cue from the governments of the Greek city-states as well as ancient Rome, the founders knew that there had to be a greater division of powers and balancing of interests, that good democratic principles have to be checked by the limitations that a republican form of government provides. When it works, this balance serves to protect the rights of individual Americans.

But we have to make sure that all of the branches are working properly, lest the American experiment become a cautionary tale that scholars two millennia from now examine as an example of what not to do.

Andrew Langer is President of the Institute for Liberty.



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Guest Essayist: Andrew Langer

In his play, The Tempest, William Shakespeare wrote, “What’s past is prologue.”  Building on this idea, in 1905, philosopher George Santayana wrote, “Those who cannot remember the past are condemned to repeat it.”

Our founders were acutely aware of this concept—even if they were unfamiliar with Shakespeare or preceded Santayana by more than a century.  Firmly grounded in both the history of classical antiquity and the philosophies underpinning the various Greek and Roman societies, men like Thomas Jefferson and James Madison relied firmly on what they had learned as they were envisioning the American Republic (and, to be certain, Jefferson found great inspiration from the Greeks and the Romans in his architectural pursuits as well).

Nowhere is this more evident than in Federalist #38.  Written by Madison, this essay continues his efforts to counter the rhetoric of those opposed to the ratification of the Constitution—focusing squarely on the flaws in those opponents’ reasoning, and drawing on the lessons of history in order to sway support in favor of ratification.

After briefly discussing the Minoans, the Spartans, and the Romans, Madison focuses on Athens—the cradle of early democracies (the word “democracy” is in and of itself Greek, meaning “ruled by the people”).  After discussing some of what led to the formation of the Athenian democratic government, he asks by the people of Athens,

“should consider one illustrious citizen as a more eligible depositary of the fortunes of themselves and their posterity, than a select body of citizens, from whose common deliberations more wisdom, as well as more safety, might have been expected?”

In other words, there was concern as to whether one person—whether a “divine right” monarch or someone selected through a democratic process—would serve the nation (though in the case of the Greeks we’re generally talking about “city states” better than some group of citizens, acting together to make decisions.

In fact, Athens made participation in their democracy mandatory, and each year a group of citizens would be compelled to serve in the government.

Madison then goes on to talk about the challenges that the founders of these governments faced, showing that there is indeed a lesson in the debates that existed in Greece and Rome for those debating the ratification of the Constitution:

“History informs us, likewise, of the difficulties with which these celebrated reformers had to contend, as well as the expedients which they were obliged to employ in order to carry their reforms into effect.”

In other words—these men faced challenges, too, but those challenges did not prevent them from moving forward with improvements. But most important is the lesson that correcting the mistakes of governance in the past is an essential element of a successful and enduring nation, while at the same time recognizing that opposition for opposition’s sake can be needlessly complicating:

“If these lessons teach us, on one hand, to admire the improvement made by America on the ancient mode of preparing and establishing regular plans of government, they serve not less, on the other, to admonish us of the hazards and difficulties incident to such experiments, and of the great imprudence of unnecessarily multiplying them.”

This is the real focus of Madison’s essay—his accusation to the critics of the Constitution that their arguments are not in any way constructive or substantive, but worse, that they are (in many cases) contradictory and harmful in that they are needlessly delaying the lawful formation of a national government.

The Constitution was meant as a necessary improvement over the Articles of Confederation, a document that, like many implemented first drafts, was found to be wanting and ultimately unworkable.  It was a document full of contradictions—a central government given responsibilities but little authority to exercise those responsibilities.  In fact, it could be said that this is by design, that these flaws were embedded in the Articles of Confederation to make that document (and any government trying to operate under it) unworkable (in modern legal parlance, this is referred to as a “poison pill”).

But Madison knew time was of the essence—and that pointing out the contradictions in the arguments of the Constitution’s opponents was essential to the speedy adoption of that document, framing it as a mortal health issue:

“A patient who finds his disorder daily growing worse, and that an efficacious remedy can no longer be delayed without extreme danger, after coolly revolving his situation, and the characters of different physicians, selects and calls in such of them as he judges most capable of administering relief, and best entitled to his confidence. The physicians attend; the case of the patient is carefully examined; a consultation is held; they are unanimously agreed that the symptoms are critical, but that the case, with proper and timely relief, is so far from being desperate, that it may be made to issue in an improvement of his constitution…

“Such a patient and in such a situation is America at this moment. She has been sensible of her malady. She has obtained a regular and unanimous advice from men of her own deliberate choice. And she is warned by others against following this advice under pain of the most fatal consequences. Do the monitors deny the reality of her danger? No. Do they deny the necessity of some speedy and powerful remedy? No.”

Sometimes, we forget the precarious nature of the fledgling American republic.  Yes, we had just won the war for our independence, but the nation’s future was hardly guaranteed.  In fact, it was even more precarious because of the failure of the Articles of Confederation in producing the balancing of interests between the states, the central government, and the people themselves.

Ultimately, Madison prevailed upon the readers of his essays to consider that as flawed as the Constitution might be, it was better than either of the two alternatives (as he saw them): the Articles of Confederation or no organizing document whatsoever.  Whichever the particular complaints of the Constitution’s opponents, Madison needed them to see that point.  With the past being prologue, Madison knew what would happen to the American experiment otherwise.

Andrew Langer is President of the Institute for Liberty.



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Essay 76 – Guest Essayist: Andrew Langer

Any successful enterprise, whether it be a large business or a political movement, will have within it the widest cross section of people both leading that effort or participating within it—individuals who bring a multitude of different skills and experiences to the table in order to make certain that the endeavor will succeed. This is the true definition of “diversity,” something that looks past the cosmetic and draws on the outlook and experience of its participants.

This is certainly true with our founders, men who couldn’t have been more different than each other, despite their similarities. The authors of the Declaration of Independence:  Jefferson (the principal author), John Adams, Benjamin Franklin, Robert Livingston and Roger Sherman (who were all on the Continental Congress’ Declaration Committee), all brought with them unique perspectives.

These differences extended to the pair of brothers who signed the Declaration, Richard Henry Lee and Francis Lightfoot Lee, both of Virginia. The only pair of brothers to sign the Declaration of Independence, both brought with them different outlooks and temperament.

The older brother, Richard Henry Lee, with his European education and charming likeability, became a major political force in the budding liberty movement in Virginia—especially with his writing and speaking.

But Francis Lightfoot Lee, a planter born in 1734 in Westmoreland, Virginia, contemporarily known as Frank, the second-youngest of the Lee brothers, was a determined worker, someone who did things out of duty and a devotion to getting done whatever task lay before him. He didn’t seek the spotlight, but was seen as a tireless worker. A leader, certainly, but one who led by doing.

Political movements need both, and while much praise and attention is bestowed on the former, it is the latter which is just as important (if not more so).

It is important to note that this branch of the Lee family played a prominent role in the first three centuries of not only American history, but Virginia history as well. The Lees were what is known as “FFVs” one of the “First Families of Virginia”—the families who first settled Virginia in Colonial Times. Richard Lee I, the first Lee in Virginia, migrated to the Colonies in 1639, and served as Virginia’s Attorney General several years after his arrival. His grandson was Thomas Lee, who became Governor in 1749, and was the father of both Frank Lee and Richard Henry Lee (among the other descendants of Richard Lee I are both Gen. Robert E. Lee and President Zachary Taylor, as well as Chief Justice of the U.S. Supreme Court, Edward Douglass White).

Frank Lee served as a member of the Virginia House of Burgesses, the elected legislature that was Colonial Virginia’s precursor to today’s House of Delegates. But from his statements, it is clear that he did so out of a duty to serve, and not to satisfy any greater political ambition. Lee wrote to his older brother at one point, when it looked like he might not get re-elected:

The people are so vexed at the little attention I have given them that they are determined it seems to dismiss me from their service, a resolution most pleasing to me, for it is so very inconvenient to me that nothing should induce me to take a poll, but a repeated promise to my friends there, enforced by those here who consider me as a staunch friend to Liberty.

Lee was focused on achieving the cause of liberty for the American Colonies, as he (like others) had grown both frustrated and dismayed by the increasing mistreatment of the Colonial Citizens by the British Crown.

He continued to serve and was eventually sent as a delegate to the Continental Congress—and John Adams remarked at the constancy of both Lee brothers who were in service together.

Frank Lee signed the Declaration and continued to serve as a Delegate to the Continental Congress, but he grew increasingly frustrated with the ambition and mismanagement of those around him. He wrote to Richard Henry Lee, his brother, again, saying:

I am as heartily tired of the knavery and stupidity of the generality of mankind as you can be; but it is our duty to stem the Current, as much as we can and to do all the service in our power, to our Country and our friends. The consciousness of having done so, will be the greatest of all rewards… [W]e may give a fair opportunity to succeeding Patriots, of making their Country flourishing and happy, but this must be the work of Peace.

He returned to Virginia following his service in the Continental Congress and served as a member of the Virginia State Senate. He retired from public and political life in 1785, having seen his deliberate “work of Peace” achieve the end he so desired. He and his wife died within one week of each other in 1797.

Andrew Langer is President of the Institute for Liberty.


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Guest Essayist: Andrew Langer

We are going to assemble the best thought and broadest knowledge from all over the world to find these answers. I intend to establish working groups to prepare a series of conferences and meetings—on the cities, on natural beauty, on the quality of education, and on other emerging challenges. From these studies, we will begin to set our course toward the Great Society. – President Lyndon Baines Johnson, Anne Arbor, MI, May 22, 1964

In America in 1964, the seeds of the later discontent of the 1960s were being planted. The nation had just suffered an horrific assassination of an enormously charismatic president, John F. Kennedy, we were in the midst of an intense national conversation on race and civil rights, and we were just starting to get mired in a military conflict in Southeast Asia.

We were also getting into a presidential election, and while tackling poverty in America wasn’t a centerpiece, President Johnson started giving a series of speeches talking about transforming the United States into a “Great Society”—a concept that was going to be the most-massive series of social welfare reforms since Franklin Roosevelt’s post-depression “New Deal” of the 1930s.

In that time, there was serious debate over whether the federal government even had the power to engage in what had, traditionally, been state-level social support work—or, previously, private charitable work. The debate centered around the Constitution’s “general welfare” clause, the actionable part of the Constitution building on the Preamble’s “promote the general welfare” language, saying in Article I, Section 8, Clause 1 that, “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;” (emphasis added)

Proponents of an increased federal role in social service spending have argued that “welfare” for this purpose means just what politicians today proffer that it does: that “welfare” means social service spending, and that because the Constitution grants Congress this power, such power is expansive (if not unlimited).

But this flies in the face of the whole concept of the Constitution itself—which is the idea of a federal government of limited, carefully-enumerated powers. The founders were skeptical of powerful, centralized government (and had fought a revolution over that very point), and the debate of just how powerful, how centralized was at the core of the Constitutional Convention’s debates.

Constitutional author (and later president) James Madison said this in Federalist 41:

It has been urged and echoed, that the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,’’ amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction. Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases.

In 1831, he also said, more plainly:

With respect to the words “general welfare,” I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.

This was, essentially, the interpretation of the clause that stood for nearly 150 years—only to be largely gutted in the wake of FDR’s New Deal programs. As discussed in the essay on FDR’s first 100 days, there was great back and forth within the Supreme Court over the constitutionality of the New Deal—with certain members of the court eventually apparently succumbing to the pressure of a proposed plan to “stack” the Supreme Court with newer, younger members.

A series of cases, starting with United States v. Butler (1936) and then Helvering v. Davis (1937), essentially ruled that Congress’ power to spend was non-reviewable by the Supreme Court… that there could be no constitutional challenge to spending plans, that if Congress said a spending plan was to “promote the general welfare” then that’s what it was.

Madison was right to be fearful—when taken into the context of an expansive interpretation of the Commerce Clause, it gives the federal government near-unlimited power. Either something is subject to federal regulation because it’s an “item in or related to commerce” or it’s subject to federal spending because it “promotes the general welfare.”

Building on this, LBJ moved forward with the Great Society in 1964, creating a series of massive spending and federal regulatory programs whose goal was to eliminate poverty and create greater equity in social service programs.

Problematically, LBJ created a series of “task forces” to craft these policies—admittedly because he didn’t want public input or scrutiny that would lead to criticism of the work his administration was doing.

Normally, when the executive branch engages in policymaking, those policies are governed by a series of rules aimed at ensuring public participation—both so that the public can offer their ideas at possible solutions, but also to ensure that the government isn’t abusing its powers.

Here, the Johnson administration did no such thing—creating, essentially, a perfect storm of problematic policymaking: a massive upheaval of government policy, coupled with massive spending proposals, coupled with little public scrutiny.

Had they allowed for greater public input, someone might have pointed out what the founders knew: that there was a reason such social support has traditionally been either the purview of local governance or private charity, that such programs are much more effective when they are locally-driven and/or community based. Local services work because they better understand the challenges their local communities face.

And private charities provide more-effective services because they not only have a vested-interest in the outcomes, that vested-interest is driven by building relationships centered around faith and hope. If government programs are impersonal, government programs whose management is far-removed from the local communities is far worse.

The end result is two-fold:  faceless entitlement bureaucracies whose only incentive is self-perpetuation (not solving problems), and people who have little incentive to move themselves off of these programs.

Thus, Johnson’s Great Society was a massive failure. Not only did it not end poverty, it created a devastating perpetual cycle of it. Enormous bureaucratic programs which still exist today—and which, despite pressures at various points in time (the work of President Bill Clinton and the GOP-led Congress after the 1994 election at reforming the nation’s welfare programs as one example), seem largely resistant to change or improvement.

The founders knew that local and private charity did a better job at promoting “the general welfare” of a community than a federal program would. They knew the dangers of expansive government spending (and the power that would accrue with it). Once again, as Justice Sandra Day O’Connor said in New York v. United States (1992), the “Constitution protects us from our own best intentions.”

Andrew Langer is President of the Institute for Liberty. He teaches in the Public Policy Program at the College of William & Mary

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Guest Essayist: Andrew Langer

In 1992, United States Supreme Court Justice Sandra Day O’Connor enunciated an axiomatic principle of constitutional governance, that the Constitution “protects us from our own best intentions,” dividing power precisely so that we might resist the temptation to concentrate that power as “the expedient solution to the crisis of the day.”[1] It is a sentiment that echoes through American history, as there has been a constant “push-pull” between the demands of the populace and the divisions and restrictions on power as laid out by the Constitution.

Before President Franklin Delano Roosevelt’s first term, the concept of a 100-Day agenda simply didn’t exist. But, since 1933, incoming new administrations have been measured by that arbitrary standard—what they plan on accomplishing in those first hundred days, and what they actually accomplished.

The problem, of course, is that public policy decision making should not only be a thorough and deliberative process, but in order to protect the rights of the public, must allow for significant public input. Without that deliberation, without that public participation, significant mistakes can be made. This is why policy made in a crisis is almost always bad policy—and thus Justice O’Connor’s vital warning.

FDR came into office with America under its most significant crisis since the Civil War. Nearly three and a half years into an economic disaster—nearly a quarter of the population was out of work, banks and businesses were failing, millions of Americans were completely devastated and looking for real answers.

The 1932 presidential election was driven by this crisis. Incumbent President Herbert Hoover was seen as a “do-nothing” president, whose efforts at stabilizing the economy through tariffs and tax increases hadn’t stemmed the economic tide of the Great Depression. FDR had built a reputation as governor of New York for action, and on the campaign trail raised a series of ambitious plans that he intended to enact that he called “The New Deal.” Significant portions of this New Deal were to be enacted during those first 100 days in office.

This set a standard that later presidents would be held to: what they wanted to accomplish during those first hundred days, and how those goals might compare to the goals laid out by FDR.

At the core of those enactments were the creation of three major federal programs: the Federal Deposit Insurance Corporation, the Civilian Conservation Corps, and the National Industrial Recovery Administration. Of these three, the FDIC remains in existence today, with its mission largely unchanged: to guarantee the monetary accounts of bank customers, and, in doing so, ensure that banks aren’t closed down because of customers suddenly withdrawing all their money from a bank and closing their accounts.

This had happened with great frequency following the stock market crash of 1929—and such panicked activity was known, popularly, as a “bank run.”[2]

FDR was inaugurated on March 4, 1933. On March 6, he closed the entire American banking system! Three days later, on March 9, Congress passed the Emergency Banking Act—which essentially created the FDIC. Three days later, on Sunday, March 12, FDR gave the first of his “fireside chats,” assuring the nation that when the banks re-opened the following day, the federal government would be protecting Americans’ money.

But there were massive questions over the constitutionality of much of FDR’s New Deal proposals, and many of them were challenged in federal court. At the same time, a number of states were also attempting their own remedies for the nation’s economic morass—and in challenges to some of those policies, the Supreme Court upheld them, citing a new and vast interpretation of the Constitution’s Commerce Clause, with sweeping ramifications.

In the Blaisdell Case[3], the Supreme Court upheld a Minnesota law that essentially suspended the ability of mortgage holders from collecting mortgage monies or pursuing remedies when monies had not been paid.  The court said that due to the severe national emergency created by the Great Depression, government had vast and enormous power to deal with it.

But critics have understood the serious and longstanding ramifications of such decisions. Adjunct Scholar at the libertarian-leaning Cato Institute and NYU law professor Richard Epstein said of Blaisdell that, “trumpeted a false liberation from the constitutional text that has paved the way for massive government intervention that undermines the security of private transactions. Today the police power exception has come to eviscerate the contracts clause.”

In other words—in a conflict between the rights of private parties under the contracts clause and the power of government under the commerce clause, when it comes to emergencies, the power of government wins.

Interestingly enough, due to a series of New Deal programs that had been ruled unconstitutional by the Supreme Court, in 1937, FDR attempted to change the make-up of the court in what became known as the “court-packing scheme.” The proposal essentially called for remaking the balance of the court by appointing an additional justice (up to six additional) for every justice who was over the age of 70 years and 6 months.

Though the legislation languished in Congress, the pressure was brought to bear on the Supreme Court and Associate Justice Owen Roberts began casting votes in support of FDR’s New Deal programs—fundamentally shifting the direction of federal power towards concentration, a shift that continued until the early 1990s, when the high court began issuing decisions (like New York v. United States) that limited the power of the federal government and the expansive interpretation of the commerce clause.

But it’s the sweeping power for the federal government to act within a declared emergency, and the impact of the policies that are created within that crisis that is of continued concern. Much in the same way that the lack of deliberation during FDR’s first 100 days led to programs that had sweeping and lasting impact on public life, and created huge unintended consequences, we are seeing those same mistakes played out today—the declaration of a public emergency, sweeping polices created without any real deliberation and public input, and massive (and devastating consequences) to businesses, jobs, and society in general.

If we are to learn anything from those first hundred days, it should be that we shouldn’t let a deliberative policy process be hijacked, and certainly not for political reasons. Moreover, when polices are enacted without deliberation, we should be prepared for the potential consequences of that policy… and adjust those policies accordingly when new information presents itself (and when the particular crisis has passed). Justice O’Connor was correct—the Constitution does protect us from our own best intentions.

We should rely on it, especially when we are in a crisis.

Andrew Langer is President of the Institute for Liberty.  He teaches in the Public Policy program at the College of William and Mary.

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[1] New York v. US, 505 US 144 (1992)

[2] Bank runs were so engrained in the national mindset that Frank Capra dramatized one in his famous film, It’s A Wonderful Life. In it, the Bedford Falls Bank is the victim of a run and “saved” by the film’s antagonist, Mr. Potter.  Potter offers to “guarantee” the Bailey Building and Loan, but, knowing it would give Potter Control, the film’s hero, George Bailey, uses his own money to keep his firm intact.

[3] Home Building and Loan Association v Blaisdell, 290 US 398 (1934)


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Guest Essayist: Andrew Langer


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

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

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

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

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

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

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

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

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

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

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

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

Who will the bank give the loan to?

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

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

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


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

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

Guest Essayist: Andrew Langer


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Guest Essayist: Andrew Langer


The thirty-sixth state admitted to the Union was Nevada, having ratified the U.S. Constitution October 31, 1864, and currently uses the Nevada State Constitution adopted in 1864.

The relationship between Nevada and the federal government is as much a matter of the history of how Nevada became a state as it is the conditions under which it was granted statehood.  Like many western states, states whose territories were carved out of the lands gained by the United States as a result of the Treaty of Guadalupe Hidalgo of 1848.

Until that point, states entering the union retained title to “unappropriated public lands” within their boundaries.  But states entering the Union after 1848, by and large, ceded all title to these unappropriated public lands—i.e., lands that were neither privately owned, nor were they dedicated to some official public purpose—to the federal government as an incident of their becoming a state.  As a result, these states, which were also much, much larger than their eastern counterparts, came into the Union with massive amounts of federal land within their midst.

There were a number of reasons for this.  Keeping in mind that Nevada was admitted to the Union during the height of the civil war—the state was also rushed to admission because Republicans wanted to ensure President Abraham Lincoln’s re-election in 1864 (it turned out that Lincoln won handily, but the party politicians at the time wanted to make certain of it).

But the transfer of title of unappropriated public lands from the territories to the federal government upon statehood had a lesser-known (and from an academic perspective, really not understood at the time) benefit.

In his book, The Mystery of Capital, the Peruvian economist and political scientist Hernando DeSoto talks about the importance of “clearing title” to real property (i.e., land) in order to facilitate its purchase and development.  The concept is simple and straightforward:  people will invest in real property only when they have certainty that they have clear legal title to that land, and that this title will be protected under the rule of law.

In order to make certain that these newly-born states would be settled, it was essential that prospective residents be assured that the land they were settling would actually be theirs-that nobody else would lay claim to them down the road.

But part and parcel of this conversion of state territorial lands to federal ownership was a secondary agreement—that the federal government would “dispose” of these lands (with the exception of lands that would be used for governmental or educational purposes).  In Section 10 of the Enabling Act for Nevada, passed by Congress in 1864, Congress agreed that the state would be paid a percentage of the sale of all public lands, “which shall be sold.”  It was an agreement which essentially admits that Congress didn’t envision, at the time, that the federal government wouldn’t retain these lands in perpetuity.

It’s the same agreement, incidentally, that the Federal Government agreed to in essentially every enabling act after the Treaty of Guadalupe Hidalgo was ratified… and yet these states still contain tremendous federal land ownership.

The reason for this is straightforward.  For many years, these lands were remote, inaccessible, and in many cases inhospitable.  While much of it is used for ranching and timber production, it was many years before some of the more desolate public lands were seen as possibilities for mineral, petrochemical or recreational usage.  So there was no demand for many of these lands.

But as that demand began to grow, push-back against this longstanding contractual agreement to dispose of these lands began as well—especially from recreation enthusiasts, who saw no distinction between National Park lands (clearly managed for recreational use) and lands managed by the U.S. Forest Service (which, as an agency under the U.S. Department of Agriculture are managed for timber production), the Bureau of Land Management (which manages lands used by ranchers) and a host of other agencies which lease lands out for private use.

It was out of this attitude that the Federal Land Policy and Management Act of 1976 was created.  FLPMA, as it is better known, “flips” the duty to dispose on its head—and for nearly the last half-century there is instead a “duty to retain” these public lands, but the onus on localities, states, or private parties to make a heavy case for why a parcel of property ought to be disposed.

As a result, states like Nevada have huge parcels of federal land in their midst—more than 4/5 of Nevada is federally-owned.  This has huge impacts on the ability of the state government and local governments to effectively exercise their authorities.

Take Nye County, NV—Nye is the third-largest county in the United States, the size of Vermont and New Hampshire combined.  It is more than 90% federally-owned.  When the county makes land-use decisions, in many case, these decisions have to be reviewed by a host of federal agencies, by personnel thousands of miles away working within enormous bureaucracies.  At many points, there has been conflict—for instance, in the mid-1990s, a road was washed out connecting two Nye towns.  Because the road crossed US Forest Service lands, the county had to work with the USFS to try and get the road reopened since, absent the road, Nye residents would have to go, literally, hundreds of miles out of the way to get from City A to City B.

The County Commissioners felt that the USFS was dragging its feet and, in fact, the forest service was reluctant to reopen the road.  It came to a head when a frustrated county commissioner got on a county-owned bulldozer and opened up the closed road himself.

The federal government sued Nye County, and despite state law saying that the counties had some powers with regards to utilization of these lands, when the Nevada Attorney General refused to defend that law, the federal government won that lawsuit—leaving counties like Nye powerless in the face of massive government retention of public lands.

We continue to see flare-ups in the tension between local landowners and federal land management authorities.  Despite the fact that obligations exist since states like Nevada became members of the Union, existing federal law will make it hard for land management and ownership to devolve to the states.  Which means that state and local governments will still have to contend with the federal government as a massive partner in non-federal decision-making.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Guest Essayist: Andrew Langer


“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” – The US Constitution, Article II, Section 4

In this 90-Day series on the Constitution, many scholars, myself included, have talked about the diffusion of power as a check on sovereign authority.  The power to wage war, for instance, is divided between Congress (with the power to declare war) and the Executive Branch (wherein the President serves as Commander-in-Chief).

But because of the enormous power of the Executive Branch (and of the President as Chief Executive), the founders knew it would be necessary to create a mechanism by which a President could be removed from office.  Benjamin Franklin is noted to have quipped at the Constitutional Convention that prior to the existence of the United States, national leaders who had earned enmity with their peoples had been removed from power via assassination (or execution), and that it would be more preferable to have a proceduralized legal process by which such a leader would be removed in the United States.

Mirroring criminal legal proceedings, when it comes to federal impeachment, the House of Representatives engages in the process of “impeachment” which is akin to a grand jury’s indictment process.  Should the President be “impeached” (i.e., indicted), the case then goes to the U.S. Senate for trial—with the Chief Justice of the United States Supreme Court presiding.  To date, two Presidents have been impeached:  President Andrew Johnson and President Bill Clinton.  Neither were convicted in the Senate.

President Richard Nixon resigned from office before the House could vote on his impeachment—but it was expected that the House would impeach him, and that the Senate would most-likely find him guilty, and thus make him the first President to be removed from office under the Constitution’s guidance.

The fact that no President has been so-removed is a testament to the founders’ brilliance.  As I have written elsewhere regarding federalism and the separation of powers, the founders wanted the people of the United States to have a deliberative legislative branch—and the deliberative nature of the impeachment process hedges against a legislature that wishes to punish a President over politics.

This could certainly be argued with regards to Andrew Johnson.  Johnson, who assumed office after President Lincoln’s assassination, was grappling with a Congress essentially-ignoring Lincoln’s Reconstruction wishes (“malice towards none, charity towards all”), putting the southern readmission process into the Union under the management of military commanders.

There were legitimate questions as to whether this was Constitutional, but President Johnson attempted to use his power as Commander-in-Chief to mitigate the use of the military in this regard.  In response, Congress passed the “Tenure in Office Act”, which sharply constrained the ability of the President to remove Executive Branch officials[1] when the Senate was out of session (which, at the time, was quite frequent, given the part-time nature of our federal legislature prior to the invention and installation of modern air conditioning in the U.S. Capitol and office buildings).

Johnson asserted his authority as chief executive, and Congress pushed forward to impeach him under Article II.

It is important to note that the concepts of “high crimes and misdemeanors” has never been authoritatively defined—and so it has become a ubiquitous “catch all” for a President’s opponents to bandy about when calling for a President to be impeached on non-specific offenses.

In the case of Johnson, the process worked.  Yes, he was impeached by the House, but when the case went to the Senate he was acquitted.

In the case of President Clinton, the “high crimes and misdemeanors” arose from allegations of perjury and obstruction of justice with regards to the Independent Counsel investigation of the President, and statements he made, under oath, with regards to a personal relationship the President had with a White House intern.  Once again, the House of Representatives impeached the President, while the Senate trial resulted in an acquittal.

That President Nixon resigned from office before he could be removed is further proof that the system, and the concerns underscored by Benjamin Franklin, works as intended.  Our founders had great faith in the rationality of American leaders—but they also recognized that men were fallible.  As James Madison wrote in Federalist #51:

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and 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.”

There was an expectation that thoughtful leaders, when presented with the stark reality of their removal, would accept resignation rather than removal.

Which brings us to the present administration, and the great political divide in America today.  The founders were aware that political tensions could run high—and that politicians might try to remove a President for political reasons.  It is in environments like today that the deliberative process is of such paramount importance.

The thorough process creates a bar that insists that our representatives (in both the House and Senate) give great thought to their actions vis-a-vis removing the chief executive.  In that deliberative thought process, the founders knew, rationality would rise to the top.

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

[1] It is important to note that the Tenure in Office Act was sharply reformed when Ulysses S. Grant took office, and ultimately repealed by Congress two decades after it’s package.  When a similar law was passed in 1926 and challenged for its constitutionality, the Supreme Court commented on the Tenure in Office Act as having been potentially unconstitutional (had it been challenged).

Guest Essayist: Andrew Langer


As discussed throughout the essays of Constituting America’s 90-Day Studies of the Constitution, central to the nature of our republic is the division and diffusion of power through the various branches and levels of our government.  The power of one branch of the federal government is checked by the power of another branch, and the authority to engage those powers is diffused, so that the rights of Americans are protected against abuse.

In the recent essay on Federalism and the United States Senate, I began with a quote from New York v. United States, a 1992 Supreme Court decision which eloquently lays out the reasoning behind our federalist system.  In that essay, I talked about the diffusion of sovereign power as protecting individual rights. That case also says,

“[T]he Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.”[1]

This is especially true when it comes to the power to wage war.  Next to the power to use lethal force against its own citizens (in the most-extreme instances), the power to inflict harm against other nations is the most-serious power we, as a people, have ceded to our government.

And the founders were incredibly suspicious of the power to wage war being abused by a centralized government.  They had seen firsthand the arbitrary and cavalier ways in which monarchs, and not just the British monarchy, were using war, and had used war throughout the world’s history, as a way of building empire, and glory, and power.

This is NOT what they wanted these United States to be—and so they made it difficult for the nation to wage war.  The imbued, under Article I of the Constitution, the power to declare war with the Congress.  But the management of that war, the management of the armed forces of the United States, was vested in the President as the “Commander-in-Chief” under Article II.

Remember, as well, that as a check against abuse of military authority, the bulk of our armed forces were to be comprised of militia[2], locally-organized and locally-commanded, and that we really were to have no standing army (a posture that changed as the country grew and matured).

But the founders wanted the decision to go to war to be deliberate (and deliberated), so they vested that decision in Congress, and as a result, Congress has only “declared” war eleven times in our nation’s history, with six of those instances being related to various hostilities in and around World War II.

However, following World War II, and with the advent of the Cold War (and the associated “proxy wars” that ensued)[3], the divided powers between Congress and the Executive Branch became muddied.  The President was granted considerable leeway by Congress to engage U.S. troops in armed conflicts without having it necessary for Congress to actually “declare” war.

The Korean War was, officially, a “police action”—though historically it is termed a war, U.S. troops were directly engaged in a conflict between two powers, and thousands of U.S. lives were lost.  Similarly, the Vietnam War utilized thousands of soldiers, sailors, airmen and marines, but Congress never declared war against North Vietnam.

But Congress attempted to re-assert its authority because of growing public wariness with how the Vietnam War was being conducted.  In 1973, the “War Powers Resolution” was passed (though not signed by President Richard Nixon, thus making fall short of an “act”), which is supposed to work as a check against the President’s conducting of foreign military affairs.  It requires the President to inform Congress within 48 hours of the committing of U.S. military forces to action, places time restraints on how long they can remain there (60 days of engagement with 30 days for a measured withdrawal from conflict).

Past this, Congress is supposed to pass an AUMF – an “Authorization for the Use of Military Force”, or, beyond an AUMF, an actual declaration of war.

Because of the expense to the United States from engagement in hostilities abroad—both in terms of manpower and materiel, there has been renewed interest in both houses of Congress and in not just the two major political parties, but other parties as well, for legislation to reassert the separation of powers when it comes to warmaking.  Those pushing for this reassertion are saying that the concerns of the founders, the reasons the founders divided these powers, are being made manifest in how that division is being ignored today—American military members dying in conflicts that are not wars, though important American participation in these conflicts might be.

The point is, the use of that force was supposed to be deliberate—and the division of power was supposed to make those waging war more directly accountable.  The Constitution protects us from our own best intentions.  And those intentions had better be deliberated when we’re talking about waging war.

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

[1] New York v. United States, 488 US 1041 (1992)

[2] There is much-confusion as to the definition of “militia” as referenced in the Second Amendment.  Keeping in mind that the entirety of the Bill of Rights exist as a further constraint against government power, and that the Second Amendment represents only one justification for the right to keep and bear arms (absent the 2nd Amendment, the 9th makes it clear that the right to self-defense is retained, despite not being enumerated in the Bill of Rights), “militia” is currently actually defined in the United States Code—divided into “organized” militia (the National Guard) and the “unorganized” militia—essentially all other adult citizens of the United States. 10 USC, Section 246.

[3] A “proxy” war is a conflict engaged in by two powers, who are essentially acting as proxies for other, stronger powers that do not wish to engage in direct warfare with one another.  Throughout the Cold War, the United States and the Soviet Union supported parties in a number of armed conflicts, many of which could be considered “proxy” wars.

Guest Essayist: Andrew Langer


“[T]he Constitution divides authority between federal and state governments for the protection of individuals…federalism secures to citizens the liberties that derive from the diffusion of sovereign power.” New York v United States (1992)

The essence of our Republic is summed up in this phrase from this 1992 Supreme Court decision.  In it, Justice Sandra Day O’Connor lays out the very nature of our system of government:  we have a federalist system, a system of divided powers, diffused as a check against the kinds of centralized authorities that are prone to abuse individual rights.

The founders, and their forebears, were deeply suspicious of centralized power.  Britons in the pre-Magna Carta era had seen their rights abused by a series of tyrannical monarchs, and post-Revolutionary War Americans had seen the abuses of a king an ocean away whose despotism had descended into tyranny.

It was with that in mind that the Constitution was created as a document that turned the nature of government on its head.  Power, narrowly and carefully ceded, flowed from the people to their government.  Those powers were carefully laid out in the Constitution, and they added a Bill of Rights as a further constraint against government power—being even more careful to add 9th and 10th Amendments to ensure that their descendants would understand that all that was not surrendered by the people was retained by them, that because certain rights were enumerated that didn’t mean that other rights didn’t exist, and that those powers that had not been given to government were reserved to the people.

The founders were explicit about this because they knew that over time, people would come to forget the tyrannies Americans had faced at the beginning of our nation’s history (and before).  They knew that successive generations would tinker with the Constitution in the inevitable quest to “form a more perfect union.”

They knew that these generations would fail to understand the balance, and that power would shift between the various branches (through ignorance, or laziness, or the very-human thirst for power).  Power is vested in Congress, for instance, to make law.  But if Congress, because of the political pressures of elections, doesn’t want to be specific in terms of legislation, they will pass vague laws and leave it to the Executive Branch to interpret—sometimes allowing that branch to make up wholly new laws.[1]

The founders created an additional diffusive check on power by making the two houses of Congress entirely different from one another.  A “people’s house” – the House of Representatives, representing smaller districts for two years at a time, and an “upper house”—the Senate, where they would represent whole states, and gain a greater depth of wisdom with six-year terms.

But… the Founders also recognized that a six-year term could make these Senators less-accountable to their constituents.  So they added an additional check:  having these senators appointed by their state legislatures instead of having them directly elected by the people.

While certainly not being as “democratic” as direct elections would be, one has to remember, again, that the United States are not a “democracy” but a “republic” – founded in the principles of federalism, representationalism, and, certainly, democracy.  The founders were interested in good governance, accountability, and ensuring that power wasn’t concentrated.

Having senators appointed by legislatures actually allowed for greater accountability.  Consider, U.S. senators represent whole states.  It becomes inordinately difficult for these senators to develop relationships with the vast majority of a state’s citizens.  It therefore becomes difficult for these citizens to exert pressure on their senators on key issues.

On the other hand, state legislators have close relationships with their constituents (within reason), and can distill their wishes relatively easily for translation to a senator appointed by a state legislature.  Add to this the pressure of being able to be recalled by a legislature, and you get a fairly agile check on federal legislative authority.

Unfortunately, in an era in which well-meaning but misguided activists were pushing for greater levels of democracy for democracy’s sake alone[2], the 17th Amendment was introduced, passed, and ratified… and the ability of a state’s citizenry to effectively check the power of the U.S. Senate was extinguished.

In the modern era, we see this in a variety of ways—both in terms of positive and negative influence on legislation.  Good pieces of legislation passed by a House of Representatives still able to be activist go to the Senate and languish, while bad pieces of legislation go to the floor, immune from the pressure of local activists.

The founders had the foresight to create a federalist system where power was carefully balanced, checked and diffused.  They wanted to make a Senate that was accountable to the people.  The 17th Amendment changed that careful balance, and the American people are still reaping the ill-fruit of this decision today.

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

[1] This is how an isolated patch of wet soil can be declared a “navigable water of the United States” for the purposes of regulation under the Clean Water Act, for instance.

[2] Despite claims that senators appointed by legislatures were more apt to be corrupted, there is scant evidence that this was actually the case.  In contrast, senators that cannot be recalled by their legislatures are virtually immune from being punished by the voters for their misdeeds.  Cf. The Keating 5 Scandal, various senators being indicted and not rejected from office, etc.

Guest Essayist: Andrew Langer


“Let me add that a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference.” – Thomas Jefferson, in a letter to James Madison, December 20, 1787

Read more

Guest Essayist: Andrew Langer

The Dissolution of the Dormant Commerce Clause:  Willson v. Black Bird Creek Marsh Co.

In The Colorado Kid, author Steven King says, “Sooner or later, everything old is new again.”  This is certainly true when it comes to issues of public policy and constitutional law.  In this essay, we discuss the concept of the “Dormant” Commerce Clause, specifically within the context of navigable waterways.  The issue of who has jurisdiction over “navigable” waters is one that remains a subject of enormous debate—especially as the environmental movement has pushed an ever-more-marginal definition of “navigability” in order to pull more waters under the jurisdiction of the federal government.

Read more

Guest Essayist: Andrew Langer

Green v. Biddle: Clear Title and the Relationship of States to the Federal Government

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

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Guest Essayist: Andrew Langer


“One of (PATRIOT Act II’s) provisions would apparently enable federal employees to strip US citizens of their rights without due process. More broadly, it would create a separate, very shadowy justice system for terrorist suspects in which most of the rights and procedures normally guaranteed criminal suspects can be abrogated at the discretion of the government.” – John Kerry, A Call To Service, pp. 177-178 (2003)

Read more

Guest Essayist: Andrew Langer


In many ways, the circumstances surrounding the 1980 presidential election mirror those surrounding the 2016 elections: America’s economy in the doldrums and an electorate hungry for change. But the 2016 elections allow us the hindsight of nearly four full decades of history, and teach us that if we aren’t willing to learn those lessons, we are doomed to repeat them.

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Waters, Regulation, And Political “Sleight Of Hand”

At its most-basic level, sleight-of-hand is the art of performed misdirection.  A magician gets an audience to focus their attention on something shiny he is holding in one hand, distracting you from the trick he is attempting behind his back.  If successful, the audience is fooled into thinking that something magical has happened, completely unaware of what tricks the illusionist has engineered to accomplish his feat.  Woe be unto the illusionist who can’t complete his feat without exposing the artifices used to achieve it, or, worse, who public fails at their misdirection.

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How We Got Here

There is a truism when it comes to the power of the federal executive branch: over time, the power of that branch grows.

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“The Constitution protects us from our own best intentions. It divides power among sovereigns and among branches of government precisely, so that we might resist the temptation to concentrate power in one branch as the expedient solution to the crisis of the day.”

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The power to tax is the power to destroy. When Justice Marshall wrote these words in 1819 (echoing the words of Daniel Webster) he was expressing what could be considered a prophetic statement–those who have the power to tax wield enormous power over everyday lives, power that is apt to be abused.

This mistrust of those who hold the tax and power is nothing new. Looking back at the New Testament, those who witnessed Christ’s acts noted the skepticism that abounded because among those Jesus surrounded himself by where tax collectors, who were commonly reviled.

Read more

Guest Essayist: Andrew Langer, President of the Institute for Liberty

Sometimes the smallest, most seemingly inconsequential events can have tremendous historical significance–a minor Central European Arch Duke’s assassination igniting World War I, for instance.  So it is with The Wilmot Proviso, a 71-word, one paragraph bill in the US House of Representatives.

Introduced by Pennsylvania Congressman David Wilmot in 1846 as part of the debate on appropriations for the cessation of the Mexican-American War (and treaty negotiations), the Proviso would have banned slavery in any territories acquired from Mexico as a result of America’s victory in that war. Read more

Guest Essayist: Andrew Langer, President of the Institute for Liberty

Politics, a process of using rhetoric to maneuver and influence in order to either induce policy change or maintain the status quo, has been compared to many things–war, football, chess.  And like these comparatives, one side or another can outmaneuver the other (or, in turn, be outmaneuvered). Read more

Guest Essayist: Andrew Langer, President, Institute for Liberty

In his historical play, Henry V, Shakespeare talks about casting our glance back through history, and compressing the events of many years “into an hourglass.”  In the 21st Century, it is easy to think of the debates on the abolition of slavery as having taken place with the relative-rapidity of the passage of Obamacare, but in reality this debate happened over the course of nearly an entire century of the nation’s founding years. Read more

February 27, 2012 – Janine Turner Interviews Andrew Langer, President of the Institute for Liberty on The Janine Turner Radio Show!

Listen to Andrew & Janine discuss Andrew’s essay: The First Amendment: Congress Shall make no law….abridging the freedom of speech!

Guest Essayist: Andrew Langer, President of the Institute for Liberty

Congress shall make no law… abridging the freedom of speech.

In our free republic, fewer rights are more cherished, or more important, than those enumerated in the First Amendment.  It is the hallmark of a free society that the people can speak their minds without fear of retribution from the government or other citizens.  Fundamentally, there are always two questions that accompany any dissection of free speech rights:  what is their seminal role in our society (ie, why do we have them?), and what are the limits to free speech?

People say things with which we might vehemently disagree.  They may make us angry, they may make us outraged.  And the feeling might very well be mutual.  Yet both their speech, and your own, are equally protected under the US Constitution.  For the United States, this creates a true marketplace of ideas.  A marketplace that has the benefit of allowing ideas that are reasoned, thoughtful, and valid to take hold, while ideas that simply aren’t (reasoned, thoughtful, or valid) to wither and die.

It is the latter that is perhaps free speech’s greatest asset in our society.  Justice Louis Brandeis wrote that, “sunshine is the best disinfectant,” and this is especially true when it comes to speech that, were it outlawed, would fester or become cancerous when kept behind closed doors.  In fact, when you look at societies within which free speech was outlawed, when those societies ultimately moved towards freedom, the forces of hate simply exploded on the scene, because for so long there had been no open debate or airing of the stilted beliefs of extremists groups.

In the US, we want people with the most hateful, horrible ideas to be able to say them, loudly and publicly.  That way, we can not only challenge them directly (if we want), but we know which people to avoid, if we want.  It’s as though they’ve put on the brightest, most-garish sign around their neck, saying, “AVOID ME,” and we’d be wise to heed their warnings.

Just as important, however, are the limits to those free speech rights.  It is one of the most basic hallmarks of our society that the exercise of rights is only justly limited by their direct and harmful impact on others.  In other words, I may have the right to swing my hands around wildly, but that right ends at the point where my hands meet someone else’s nose.

Though the adage still prevails that “sticks and stones may break my bones, but names can never hurt me,” the truth is that words can and do hurt—and the law has made several important carve-outs for speech that is not protected by the 1st Amendment.

One of the most basic carve-outs is for speech that is considered defamatory—which, in laymen’s terms, is essentially knowingly spreading falsehoods about a person for the purposes of harming that person’s reputation—destroying a person’s personal life or ability to make a living.  Other restrictions are placed on speech that works to incite violence, or immediate wanton lawlessness—the concept that someone can neither work to provoke people to an immediate riot, or, likewise to yell “fire” in a crowded theater.  Commercial speech, and speech over the public airwaves, can also be regulated—generally under the concept that people cannot make false claims about the goods that they sell, and that because the government assigns space on the public airwaves, the government can prohibit certain kinds of content from being broadcast if it can be deemed offensive.

But by that same token, one of the most controversial debates over free speech today if found in the realm of whether or not corporate interests have free speech rights in the same manner that individuals do.  The Supreme Court ruled in their well-known Citizens’ United decision that, in point of fact, corporations do have these rights—a decision that many progressives have decried, and are attempting to undo.

Should they succeed, it would create a very dangerous situation—not only because these corporations are taxed and regulated very similarly to individuals (and, in some cases, more stringently), and therefore ought to be able, as affected entities within a society, to speak out on their own behalf, but many corporate institutions serve valuable purposes within our civil society.

If we fail to extend free speech protections to corporations, what is there to prevent an angered government, upset with a news company’s coverage of their actions, from shutting down that news organization’s business?  While some might argue that the government would be prevented from silencing the individual journalists within that organization, should the government succeed in closing down the corporation’s tools, the journalists will have been silenced.

Dissent is the hallmark of any free society—and whether that dissent comes from individuals or corporations, it is an essential element in civil discourse.  As a people we require free speech to allow good ideas to prevail, and bad ideas to be defeated.

Andrew Langer is President of the Institute for Liberty, and host of The Broadside, a weekly internet radio show, which can be heard on the Institute for Liberty website.

February 27, 2012 

Essay #6 

Guest Essayist: Andrew Langer, President of the Institute for Liberty

Amendment XXVI

1:  The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age.

2:  The Congress shall have the power to enforce this article by appropriate legislation.

The final (or, more accurately, most recent) amendment to the US Constitution is the 26th.  It lowered the national voting age from 21 to 18 years of age.

The founders initially left it up to the several states to determine various eligibility requirements for voting.  But following nearly a century of reform, including the passage of the 19th Amendment ensuring suffrage for women and various civil rights laws operating under the auspices of the 14th amendment, national leaders began to grapple with pressure to lower the overall voting age nationally from the generally-accepted 21 to 18.

President Eisenhower was the first chief executive to publicly support such a move, but Congress’ attempts to nationally require states to do so were met with constitutional opposition from the Supreme Court.  The High Court found that Congress had exceeded its authority under the Constitution, and that amending the Constitution would be required.

Contrary to popular belief, it wasn’t simply the anti-war movement that was pressuring national leaders to lower the voting age.  Young adults from all walks of life, who had already assumed the full mantle of adulthood (marriage, children, sole self-support, etc), were eager to ensure that they had a voice in public policy.  But it was the anti-war movement that captured the popular sentiment, with the concept that “if I’m old enough to be drafted to fight for my country, I ought to be able to vote those policies facing my country.”

The issue of the draft isn’t a small one, either.  The fact that young men were facing the possibility of involuntarily putting themselves in harm’s way is a compelling justification for allowing these same young men a voice in their own futures.

By 1971, the White House had become a champion of the push to lower the voting age as well—which, given the ire the anti-war movement felt towards the Nixon administration, was nothing short of ironic.  In fact, in one of the oddest instances of changing places, The New York Times, incapable of seeing anything good coming from the Nixon White House, came out in opposition to the lowered voting age—stating that young people were simply too immature intellectually to be good voters.

But the proposed amendment did pass Congress, and Nixon signed it in March of 1971. The amendment rocketed through state legislatures, and by July 1 it had been ratified.

The force and effect, however, has been somewhat limited.  Rates of voting for the 18-21 year old segment of the population was at its highest for the 1972 election.  After that, even considering important contributions in the 1984, 1996, and 2008 Presidential elections, voter turnout among this demographic has remained tremendously low.  Despite this fact, there are some calling for lowering the voting age even more—to 16![1]

It is doubtful that this will happen, given a host of factors—including one trend that has run parallel through the 40 year history of the under-21 vote.

While there may have been some justification in the late-1960s and early-1970s for lowering the age due to the factors facing a disenfranchised segment of the population, those factors have continued to shift.  Not only do we have an all-volunteer military, wherein nobody is forced to join without their own-free choice, but the age we consider “adult” today continues to increase.

Currently, for instance, we have the greatest percentage of individuals under 30 living in their parents’ homes.  Few have families, fewer own homes.  It has become acceptable to consider adolescence to extend well-beyond age 18, and some believe it to extend beyond 30 years of age!

This belief became enshrined now in federal public policy as well.  One of the central issues in Obamacare is the mandate to health insurance companies that they allow parents to put their children on their insurance plans up to the age of 26.  I believe such a consideration would have been unthinkable in the era when the 26th Amendment was being considered.

Nobody is suggesting that the voting age be raised again—though many believe that young people do squander their franchise rights.  What is certain is that the 26th Amendment is illustrative of the idea that pressing issues of the day ought not drive the amendment process.  Rarely does such tinkering with the founders’ vision produce the results that we want.

[1] This organization, the American Youth Rights Association, believes that voter turnout will increase, and that because young people may retain better knowledge of historical facts than the general population, that they will be a more informed segment of the voting electorate.

Andrew Langer is President of the Institute for Liberty

Guest Essayist: Andrew Langer, President of the Institute for Liberty

Amendment XXI

1:  The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

2:  The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

3:  This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

If nothing else, the 21st Amendment to the Constitution underscores the slippery slope that comes from both the adaptation of Constitutional prohibitions to the mores of the day, and the legal gymnastics that invariably ensue.

If you’ve already read Professor Joerg Knipprath’s excellent essay on the 18th Amendment here at Constituting America, you understand what led to the Prohibition era in the United States.  It became clear within the matter of a decade that America’s statist experimentation with a wholesale ban on alcohol was an abject failure—but because the nation had taken the extraordinary step of banning the manufacture, sale and use of a something within the Constitution, it would take another constitutional amendment to repeal that ban.

But while this act of “liberal fascism” (as Jonah Goldberg so aptly put it) took many years to come to fruition and ratification, it was undone in a matter of mere months.  This is because the architects of the 21st recognized something that should remain foremost in the minds of citizen activists when they are trying to figure out if politicians will do the “right thing” on issues.  They recognized that when push comes to shove, politicians will invariably be beholden to a narrow range of vocal special interests, and are thus apt to do something profoundly stupid for the rest of us.

When it comes to ratification of constitutional amendments, we are provided with two methods—the state legislature method, which had been the primary method of ratification of most of the Amendments to that point; or the state convention method.  In the case of the 21st, the architects chose the latter.  The reason for this is simple:  the proponents of the 21st wanted to avoid the political pressures that had, in fact, led to the adoption of the 18th amendment in the first place.  State legislators continued to be beholden to the temperance movement, a loud group whom it was perceived held great political power.

Using a method of state conventions, the 21st Amendment was ratified just months after it was passed by Congress.

The 2nd section of the amendment makes manifest the axiom of the road to hell being paved with good (legal and political) intentions.  While the architects clearly wanted to do the right thing and preserve those essential elements of state sovereignty guaranteed in the 10th Amendment, the broad, sweeping language has puzzled legal scholars and presented case after case to the courts.

Fundamentally, the questions arise as to whether or not the powers reserved to the states in section 2—to essentially decide for themselves if the state will remain “dry”, trump other rights guaranteed or powers created or reserved elsewhere in the Constitution.  Can a state ban the total use of alcohol, for instance, even in religious situations, thereby trumping both the 1st and 14th Amendments?  The answer is no, it can’t but it took a ruling by the Supreme Court to make that certain.

Clearly, the states have the power to exercise tremendous control over the alcohol that is manufactured and purchased within their borders.  But like all other powers in our republic, those too are limited.

America’s foray into constitutionally prohibiting the sale of a good in the marketplace offers us a helpful object lesson for those attempting just the flip-side today.  Today we’re not talking about the federal government trying to enact a sweeping ban on the sale of a good—we’re talking about attempts to enact a federal mandate on the purchase of a good:  health insurance.

Citizens implicitly understand the Constitution’s limitations in the imposition of the individual mandate:  Congress simply has no power to compel individual Americans to purchase a good.  We will most likely see the Supreme Court striking down those provisions of the recent comprehensive health care reform legislation on those very grounds.

But with almost similar certainty, when that happens, we will see a movement, similar in many respects to the Temperance movement, attempting to pass and ratify an amendment to make the compelled purchase of such a good constitutionally legal.

We know from careful study of the constitution and an implicit understanding of the concepts of limited, enumerated, and separated powers just how terrible such an amendment would be.  We need only look at the tortured history of the 18th and 21st amendments, and their impacts on American society and legal frameworks, to see directly what would happen if such a mandate were to come to constitutionally pass.

If there’s anything that we’ve learned from our foray into using the Constitution to tinker with both the marketplace and societal norms, it’s that it not only doesn’t work well, it has horrendous unintended consequences.

Andrew Langer is President of the Institute for Liberty

Guest Essayist: Andrew Langer, President of the Institute for Liberty

Amendment X

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

The last amendment in the Bill of Rights, the 10th, is an apt bookend for the 1st.  In fact, taken together with the 9th Amendment, it can be said that the entire vision the founders had for the United States can be found in these two amendments.

The Founders were inherently skeptical of concentrated government power—it is why we were initially conceived as a loose confederacy of sovereign states.  When that ultimately collapsed, the Founders looked towards federalism, a political system in which power is diffused among various branches and levels of government.  As the Supreme Court said only 20 years ago, “federalism secures to citizens the liberties that derive from the diffusion of sovereign power.”[1]

What was envisioned was a system of “dual sovereigns,” separate, but  (at least as conceived) co-equal systems of government, a system in which the federal government had carefully enumerated powers, the states had carefully enumerated powers, and that which had not been delegated would be retained by the people.  In other words, power flows from the people to the government, and as the High Court said 70 years ago:  “The amendment states but a truism that all is retained which has not been surrendered.”[2]

Abuse of the Commerce Clause led to a near-ignoring of the 10th Amendment by federal authorities for decades.  It was only in the 1990s that there began a resurgence of these principles, as the High Court finally began to recognize that the Founder’s vision of the nation had become rather twisted.  They began to restate that vision, and the reason why, re-affirming that efforts to grow federal power should only be undertaken with great deliberation.  In one of the most poetic Supreme Court passages ever written, Justice Sandra Day O’Connor wrote:

[T]he Constitution protects us from our own best intentions: it divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.[3]

How often have we seen federal power enlarged, or attempts made to grow federal power, for just those reasons?

Many of the cases brought to the Supreme Court in the 1990s and beyond have centered on the problem of Congress essentially compelling the states to act in a particular manner—or forcing those states to act as agents of the federal government.  There are a number of problems with this, from a basic “good government” perspective—not the very least being it forces those states to spend money on federal priorities, rather than their own.  Moreover, it removes policy prioritization an additional level away from an impacted population.

Again, as the High Court said in New York v. United States:

States are not mere political subdivisions of the United States. State governments are neither regional offices nor administrative agencies of the Federal Government. The positions occupied by state officials appear nowhere on the Federal Government’s most detailed organizational chart. The Constitution instead “leaves to the several States a residuary and inviolable sovereignty,” The Federalist No. 39, p. 246 (C. Rossiter ed. 1961), reserved explicitly to the States by the Tenth Amendment.[4]

Since the 1990s, there has been a line of cases in which these principles have been reasserted by the High Court.  In 1995, the Supreme Court finally found a limit to the Commerce Clause by striking down the Gun-Free School Zones act in United States v. Lopez. Two years later, in Printz v. United States, the Court struck down portions of the “Brady Bill”.  The court has repeatedly stated now that regardless of how well-intentioned a federal law might be, Congress cannot ignore the Constitution’s precepts on limiting federal power and not forcing a state to substitute federal priorities for its own.  The federal government can encourage, it can even “bribe” with federal funds, but it cannot out-and-out compel a state to act in an area in which the states hold their own sovereign power.

In New York v. United States, Justice O’Connor called the 10th a “tautology”, a restatement of what is obviously true.  But given the erosion of the 10th Amendment over the course of the republic’s history, and the even greater erosion of constitutional knowledge, this so-called tautology needs to be restated.  When discussing the principles undergirding our founding, regardless of the audience, it is helpful to reiterate the following, as underscored by the 10th Amendment:  government does not have rights.  People have rights.  Government has powers—powers that we have narrowly and carefully ceded to it by limiting some measure of our rights.  All that we have not surrendered, we have retained, and we must defend those rights earnestly and vigorously.

[1] New York v. United States, Coleman v Thompson, etc

[2] United States v. Darby, 312 US 100, 124 (1941)

[3] New York v. United States, 505 US 144 (1992)

[4] Ibid.


Andrew Langer is President of the Institute for Liberty


Guest Essayist: Andrew Langer, President of the Institute for Liberty

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment V to the Constitution, among longest in the Bill of Rights, is also one of the richest in terms of content.  A transitional amendment, it is unique in that it encompasses restraints on both criminal and civil powers of government—transitionally linking the two.  The first half of the amendment serves as the bedrock of protections for accused individuals under the criminal code, while the second half lays out the bedrock principles underlying private property rights.

Americans are all-too familiar with the criminal elements within the 5th Amendment.  These were borne out of the principles of English common law, stemming from the Magna Carta—principles that the revolutionary founders had seen eroded by the Crown prior to and during the War for American Independence.  Given the tremendous difficulty many of the founders had in seeing power concentrated in a single federal government, they felt it important enough to further constrain those powers and enshrine basic protections to accused persons within the Bill of Rights.

The assurance of a grand jury indictment before trial, the assurance of not being subjected to perpetual trial should the government not achieve a guilty verdict, the assurance of not being made to testify against oneself, these all had roots in English common law—very basic rights that represent a check on government power run amok.  The idea of the grand jury process helps to ensure that a single government official cannot arrest an individual without merit.

The prohibition against “double jeopardy” insures that these same government officials cannot hold an individual in perpetuity, for multiple trials, when a jury of his or her peers has found them not guilty of a particular crime.  And the prohibition against self-incrimination is a recognition of the dignity of the individual in not being forced to act against his own interest in self-preservation and liberty.

The statement on due process really forms the transition between civil and criminal in the 5th Amendment.  In terms of criminal jurisprudence, obviously an individual accused of a crime must be afforded some fair process by which his case is heard, ensuring that his team is able to amount a fair defense.

But then the 5th Amendment grabs onto a core value of the American founding:  the importance of private property rights.  Having its basis in John Locke’s theory that government’s role is to protect life, liberty, and property, Jefferson has originally written that our inalienable rights were life, liberty, and the pursuit of property.  Private property undergirds the foundation of the Republic—scholars such as Hernando DeSoto have written that property rights are essential to the stability and prosperity of any free society.

As it happens, it is these rights that have come under the greatest siege in the last century and a half—eroded in an incredible number of ways, largely because they are the among the least understood rights.  As it happens, the Bill of Rights sets out very simple protections.

Government has the power to take private property from people.  We cede that power to it in the 5th Amendment.  But three things have to happen in order for that “taking” to be lawful:

  1. First, the taking has to be for a “public use”. Traditionally, this was for things like public buildings, roads, even public spaces like parks;
  2. Due Process has to be accorded to the property owner.  They have to be given a fair hearing or process by which they can negotiate with the government, perhaps to avoid the taking entirely;
  3. Should 1 and 2 be satisfied, “just” compensation has to be paid to a property owner, generally what a willing buyer would pay to a willing seller.

For many years, litigation and legal debates arising under the 5th Amendment’s property rights provisions centered on what constituted a taking and whether or not property owners had been afforded due process—and at which point a landowner could seek compensation from the government.

A government need not physically occupy or affirmatively confiscate property, either.  As government has grown, the reach of that government into the daily lives of property owners has similarly grew—and the concept of “regulatory takings” was made manifest.  In the seminal 1922 Supreme Court case of Pennsylvania Coal v. Mahon the High Court stated clearly that when a regulation goes “too far” it will be considered a taking, triggering the 5th Amendment’s requirements.

Thus, under laws like the Clean Water Act and the Endangered Species Act, when a piece of property is restricted from substantially all uses, the landowner can seek just compensation for the taking of his property under the 5th Amendment.

What has come to the forefront in recent years is the long-time debate over what constitutes a “public use”.  In the 2005 Supreme Court case, Kelo v. City of New London, the High Court ruled that the home that elderly Suzette Kelo had lived in since she was a girl could be taken by the City of New London, CT to make way for a parking lot for a Pfizer manufacturing facility.

The public outrage was palpable—after all, the taking would directly benefit a private entity, the Pfizer Corporation, and not constitute a “public use” as stated in the 5th Amendment.  People wondered how the Supreme Court could have ruled this way.

The problem was that this decision was the end-result of 130 years of Supreme Court erosion of the “public use” doctrine.  Starting with a line of cases in which the High Court ruled that it was appropriate for government entities to take private property for quasi-private/quasi-public utility companies, and leading into years of cases in which the court decided that it was OK for localities to condemn wide swatches of private property in the name of urban redevelopment, we were left with an entirely different interpretation of “public use”.

By 2005, the Supreme Court’s precedent said that so long as there was a nebulous “public benefit,” the Constitution’s requirement of a taking for “public use” was satisfied.  Generally, this means that if there is a net increase in a city’s tax rolls, the 5th Amendment is satisfied.

The problem wasn’t that the High Court was making new law in Kelo.  The problem was that the High Court didn’t have the courage to over-rule years of bad law.

The 5th Amendment’s property rights protections are constantly under siege.  If we hope to keep the Republic, we must defend those protections earnestly and vigorously.

Andrew Langer is President of the Institute for Liberty

Guest Essayist: Andrew Langer, President of the Institute for Liberty

Article 1, Section 3, Clause 3

3:  No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

In setting out the framework for the fledgling government, the founders grappled  with the most basic issue of creating a government that would not be so powerful as to overwhelm the citizenry, but still strong enough to withstand the test of time.  The Senate, created as an analog to the upper house of Britain’s parliament, was meant to be a more deliberative body than the House of Representatives.

As such, the qualifications are rather different than those set out for House members.  House members need only be 25 years of age, American citizens for only seven years, and need not be actual residents of their congressional district at the time of the election.

In fact, the qualifications set out in this section are rather more proscriptive than those set out in other sections, and it begs the question, “why.”  Keeping in mind that this project will discuss the 17th Amendment at a later time, suffice it to say that initially United States Senators were to be selected by the legislatures of individual states.  Because those doing the selection would be a narrower group in size and scope, the founders wanted to make certain that appropriate choices would be made by these state legislators.  While there is tremendous accountability in having legislators do that selecting, nevertheless the authors of the Constitution thought it best to place strict rules on those qualifications.

Digging deeply into those qualifications themselves, what first jumps out is that the age requirements are greater than those for the House.  If we are to understand that the Senate was to be the more deliberative of the houses of the US Congress, then this makes perfect sense.  The founders recognized that the Senate ought to have a greater level of gravitas (given the limitations on size)—and such gravitas generally comes with age and experience.  Even in the 18th Century, there was a tremendous leap in maturity between the ages of 25 and 30 (which, given life expectancies at the time was approaching middle age).  Madison, in Federalist #62, referred to this as “stability of character.”

This requirement also opens the possibility of potential Senators gaining federal legislative experience by first being members of the US House of Representatives.

Most people are surprised to learn that there are no actual “residency” requirements for US House members—they must merely inhabit the states whose districts they are supposed to represent.  The Constitution’s authors had tremendous faith in the people in terms of being able to decide the propriety of those they would directly elect.  In both the requirements for House members and for Senators, they use the word “inhabit” to make it abundantly clear that they wanted these elected officials to live in their states—and again, the founders came down somewhat more strictly on potential Senators.  According to various historical accounts, Convention Delegate (and member of the committee to author the Declaration of Independence) Roger Sherman moved specifically to substitute “inhabit” for “resident” for these reasons.

While there may have been adequate reasons for not requiring habitation in House districts in the 18th and early 19th centuries, given the finite number of Senators from each state the founders wanted to ensure that someone from that state would be representing that state’s interests in the Senate.  This was especially important when one considers that given the realities of travel and transportation at this time, as well as prevailing political perceptions (as evidenced later by the 9th and 10th Amendments), the states themselves were viewed as sovereign entities in their own right.

According to the Senate’s official history, the 9-year citizenship requirement was a compromise—between those who believed that anything less would allow for people with a remaining “dangerous attachment” to their mother countries to gain undue influence in American affairs (especially given the Senate’s role in ratifying treaties with foreign nations), and those who believed that anything more would hinder “positive immigration” and offend those nations in Europe who had lent support for our revolution.

It is interesting to note in this regard that this qualification differs greatly from that of the President’s.  The founders recognized that because the Senate’s power was diffused among many members, the President, as Commander-in-chief  and the Chief Executive of the United States, acts with a solitary and unilateral power (within limits).  So while the President must be a natural-born citizen, the same does not hold true for Senators.

All in all, while relatively straightforward, once again the founders demonstrated their brilliance in laying out a strong yet simple framework for our nation’s government.

Andrew Langer is President of the Institute for Liberty

Posted in Analyzing the Constitution Essay Archives | 10 Comments »

Guest Blogger: Andrew Langer, President of the Institute for Liberty

Friday, May 21st, 2010

Federalist #18

What sets the founding of the American republic apart from the founding of so many nations on Earth was the depth and breadth of knowledge, research, analysis and debate that went into it.  This is made evident from Madison’s Federalist #18, written under his pseudonym “Publius”.  In 18, Madison delves deeply into the experience of the ancient Greek states and the various federations, alliances, and confederations that they had historically formed.  In an era without instant electronic access to libraries of information, the sheer amount of scholarship presented in these pieces is nothing short of astounding.

Federalist #18 charts the shortcomings that arose within these various confederacies, presenting them as analogs and object lessons for the then-current struggles the fledgling republic was experiencing.  The message was simple:  we must learn from these mistakes, and make every effort to correct where the learned Greeks were deficient.  It is the essence of archival scholarship:  those who do not know history are doomed to repeat it.

Two key lessons emerge.  First and foremost, the issue of balancing minority interests against those of a powerful majority, and vice-versa.  It was only though the careful historical scholarship of the founders that the delicate structures that we have today were created—and direct lines can be drawn from these lessons to the creation of two very different legislative branches, one stemming from direct democracy (The House), the 2nd stemming (initially) from a more genteel (but, in my estimation far more responsive to the people) source of power (The Senate, which until the ratification of the 17th Amendment drew its members from the nominations of state legislatures); the electoral college (which serves to balance the interests of rural and urban population centers); as well as the very system of dual sovereigns that underpins the system of federalism.

The second lesson arose out of the first—that whatever federal union would be created, would have to be strong.  That even though federalism “secures to citizens the liberties that derive from the diffusion of sovereign power” (The Supreme Court in Coleman v. Thompson, 501 US 722, 759 (1991)), nevertheless there would still have to be a strong and unified central power, to ensure that the nation would not only grow and prosper, but be able to effectively defend itself.  There is strength to be had in numbers, and this is the essence of E Pluribus Unum (Out of Many, One).

Call it happenstance, call it the coincidence of timing and talent, or call it (as I do) divine providence.  The bottom line is that at the time when this nation needed learned minds and steady hands guiding it, those men were to be found leading it.  Their grasp of the lessons of history (both the mistakes, and triumphs) are evident in Federalist #18.

Andrew Langer is the President of the Institute for Liberty


Guest Essayist: Andrew Langer, President of the Institute for Liberty

While much attention has been focused on Congress and Article One’s legislative powers, the Constitution provides for three branches of government and Article Two  of the U.S. Constitution outlines powers for the executive branch i.e., the office of the President and those who serve under him. In addition to enumerations of the powers to nominate appointees (with the advice and consent of Congress), the power to make treaties (which have to be ratified by the Senate),  and his executive or enforcement authority Article 2 also discusses the wholly unique system of electing a president, known as the electoral college.

In this particular post, we will focus on two aspects of Article Two: the enforcement of laws passed by Congress, as well as the issue of the Electoral College.

As is clear through the structure of the Constitution itself, power flows from the people to the government via the legal structure called the Constitution.  In its opening statement, Article 2 reaffirms this concept, making it clear that power “vests” in an “executive” branch of government—meaning that it administers, oversees, and “executes” what is the legislative “will” of the people.

Because the system is one of checks, balances, and diffusion of power (the founders were skeptical of concentrated government power), powers enumerated to the federal executive are undercut by powers enumerated to Congress under Article 1 (and vice-versa).  The President is  Commander-in-Chief of the military under Article 1, but it is only Congress that can declare war.  On the other hand, while Congress passes laws, Article Two vests with the Executive Branch the requirement that those laws are “faithfully executed”.  In the modern executive branch many of these tasks are carried out under what is called “administrative law” via the federal regulatory state.

Issues have arisen when the agencies carrying out the execution of Congressional laws appear to exceed their statutory mandate and often challenges arise charging that an agency has effectively undermined Congress’ power to make the law.  While there may be an inevitable tension between the executive and the legislative branch in terms of the scope of their power, Article Two contemplates that the Executive branch engage in enforcement and execution of laws with little to no lawmaking like behavior occurring.

Critics charge that as Congress grows more unwilling to take proper care in writing laws that are clear and limited in scope, they have invited the Executive Branch to assume far more authority in the interpretation and execution of those laws leading to a greatly convoluted regulatory state.    However as the writers of the Constitution make clear the powers of the executive are to be checked by those of the other two branches such that a significant deviation from the Constitution could be subject to challenge in Court or by Congress through its powers to tax and appropriate etc.

Now let us turn to the electoral college.

When envisioning the Republic, the founders recognized that competing interests would require that the demands of a majority group be weighed against the impact of those demands against the rights of minority groups (political or otherwise).  Thus, we are not a pure democracy, but a representative republic—and, the American Electoral College was born out of those notion.

One of the challenges to the Republic, the founders knew, would be the inherent conflict between the interests of rural Americans and those who lived in cities.  Different things are important to people living in farming communities than to those who live within urban centers—there are different public policy priorities, at the very least, and possibly different sets of values and societal mores.  But in a pure democracy, regions with the highest populations would drive the public policy agenda, potentially sacrificing the interests of those in rural or desolate regions on the altar of the regions with the most people.

The founders didn’t want the selection of the President to be by “urban center fiat”, so they devised a mechanism to level the playing field.  It is akin to how the World Series is played:  it isn’t decided in one single game, or which team scored the most runs in a series of different games.  It is broken down into a “best of seven” contest, leveling the playing field by allowing each time numerous chances to score incremental victories.

As initially envisioned, each state gets a number of votes equal to the sum of the number of House members plus the number of Senators.  That way, even the states with the smallest population have a minimum of three votes, and are thus equalized.  Moreover, when combined, the electoral votes of these smaller or less populous states could challenge or overcome the electoral votes of larger and more populated ones.  Thus, the common interests of more rural states could be effectively aggregated, and their rights protected.

Unlike many other systems which rely on simple majorities our system ensures that the President actually presides over “united” states and has a built in constituency that is broad and enduring.   The end result is the President of our nation ultimately chosen by the electoral college far more broadly represents the interests of the nation as a whole.

April 22, 2010

Posted in Article II of the United States Constitution, Constitutional Scholar Essays | Edit | 73 Comments »