Principle of Civil Discourse To Keep Representative Government, Unhindered Freedom of Speech in the Airing of Grievances

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Guest Essayist: Andrew Langer

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Principle of Individual Rights to Life, Liberty, and the Pursuit of One’s Own Happiness

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Guest Essayist: Gary Porter

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

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

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

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

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

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

Indispensably obligatory? Sir William Blackstone explains why:

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

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

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

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

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

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

But as Thomas Paine warns us:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Principle of Individual Free Enterprise

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Guest Essayist: Andrew Langer

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Principle of Appropriate Role and Purpose of Government Upon Protecting the People From Violence and Fraud

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

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Principle of Justice for All

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Guest Essayist: Andrew Langer

 

Essay Read by Constituting America Founder, Actress Janine Turner

 

The United States Constitution, ratified in 1788, has stood as a beacon of democratic principles and rule of law for over two centuries. One of its most profound contributions is the pursuit of “justice for all,” an ideal engraved in the Pledge of Allegiance. The preamble to the Constitution sets the tone by stating one of the document’s purposes as to “establish Justice.” This phrase signifies the Framers’ intent to create a system of governance that promotes fair treatment and equality under the law, a cornerstone of justice.

“Justice for All,” Generally, in the Constitution

The Constitution’s first ten amendments, known as the Bill of Rights, are crucial to achieving “justice for all.” These amendments protect individual liberties and limit governmental power, thereby ensuring fairness. The Fourth Amendment protects against unreasonable searches and seizures, while the Fifth and Sixth Amendments guarantee rights that are fundamental to a fair trial, such as the right to due process and the right to a speedy and public trial. The Eighth Amendment prohibits cruel and unusual punishments, affirming that punishment must be proportional and humane.

The Fourteenth Amendment, ratified after the Civil War, is another cornerstone in the pursuit of justice. The amendment’s Equal Protection Clause prohibits states from denying any person within their jurisdiction the equal protection of the laws. This provision has been instrumental in combating discrimination and ensuring that all individuals, regardless of their race or other innate attributes, are treated equally in the eyes of the law. Landmark Supreme Court cases, such as Brown v. Board of Education have utilized the Equal Protection Clause to deliver justice to marginalized groups.

The Constitution establishes the judiciary as an independent branch of government, playing a vital role in upholding justice. Article III vests the judicial power in the Supreme Court and other federal courts as Congress may establish. The courts interpret the Constitution and have the power to strike down laws that are unconstitutional, ensuring that the principles of justice are upheld against potential abuses of power.

Lastly, the Constitution itself provides for amendments to adapt to changing societal norms and understandings of justice. The Nineteenth Amendment, which granted women the right to vote, and the Twenty-Sixth Amendment, which lowered the voting age to 18, are examples of how the Constitution can evolve to better realize the promise of “justice for all.”

“Due Process” as the Embodiment of “Justice for All”

The concept of due process and the ideal of “justice for all” are two fundamental principles that underpin the legal systems of free and just societies. At the core of these principles is the commitment to protecting individual rights and ensuring fair treatment for all citizens under the law. Both concepts are deeply intertwined, serving as the backbone of a just and impartial society.

Due process, a concept firmly rooted in the legal framework, is a safeguard from arbitrary denial of life, liberty, or property by the government. It’s a constitutional guarantee that all legal proceedings will be fair and that no person will be deprived of their rights without a fair procedure. The essence of due process is the right to notice and a reasonable opportunity to be heard and defend one’s rights.

The commitment to due process is directly linked to the promise of “justice for all.” It establishes a level playing field in the court system, ensuring that no one is unduly favored or unfairly disadvantaged. This adherence to process and fairness guarantees that every citizen, irrespective of their social, economic, or political standing, has an equal opportunity to present their case and seek justice.

Through due process, the law is applied uniformly, emphasizing the principle that all are equal before the law. This means that every person, regardless of their status, is subject to the same laws and legal proceedings as anyone else, reinforcing the concept of “justice for all.” It embodies the idea that justice should not be the privilege of the few, but the right of all.

Due process is a bulwark against the arbitrary exercise of power by the state. It prevents individuals from being unjustly targeted or punished without substantial evidence and a fair trial. By doing so, it reinforces the ideal of “justice for all,” ensuring that no person is unjustly deprived of their rights or freedoms.

Due process promotes transparency and accountability in the legal system. It requires that legal proceedings be carried out in a fair, open, and consistent manner, which enhances public trust in the system. This transparency ensures that justice is not only done but seen to be done, thus promoting the ideal of “justice for all.”

Due process is intrinsic to the concept of “justice for all.” It guarantees fair treatment, equality before the law, protection against arbitrary power, and promotes transparency and accountability. Without due process, the promise of “justice for all” would be an empty rhetoric. As such, any society committed to justice must also be committed to upholding and enforcing due process.

“Justice for All” and the Supreme Court

While the phrase “justice for all” is not found in the body of the Constitution, the preamble to the Constitution does present a mandate that the Federal Government will “establish justice.” The Supreme Court has often been tasked with interpreting what “establishing justice” means in various contexts and how it should be applied in practice. Most scholars look at four seminal cases in which the Supreme Court has interpreted and applied this mandate: Marbury v. Madison, Wesberry v. Sanders, Plessy v. Ferguson, and Brown v. Board of Education.

First, Marbury v. Madison (1803) was a landmark case in which the Supreme Court, under Chief Justice John Marshall, affirmed its power of judicial review, the power to declare laws unconstitutional. It was a case where the interpretation of “establish Justice” was at the core. The Court held that it was the very essence of justice to ensure that government acts within the limits of the law, and when it doesn’t, there needs to be a mechanism to check and correct it. Judicial review was therefore seen as an essential instrument of justice, ensuring that the laws themselves and the actions of government are just, fair, and align with the Constitution.

Second, Wesberry v. Sanders (1964) centered on the principle of “one person, one vote,” an essential aspect of democratic justice. In this case, the Supreme Court ruled that electoral districts must be roughly equal in population, ensuring that all citizens’ votes carry equal weight. This interpretation of “establish Justice” reflected the belief that justice in a democratic society requires political equality, where each citizen’s voice matters equally in the public decision-making process.

Third, Plessy v. Ferguson (1896) is a historic case that unfortunately reflects a period when the Supreme Court fell short in its mandate to “establish Justice.” The Court upheld state racial segregation laws for public facilities under the doctrine of “separate but equal.” This decision was a significant deviation from the ideal of justice as it endorsed racial discrimination and inequality, contradicting the Constitution’s guarantee of equal protection under the law.

Lastly, Brown v. Board of Education (1954) is a landmark case in which the Supreme Court rectified its previous stance from Plessy v. Ferguson. The Court unanimously ruled that racial segregation in public schools was unconstitutional, stating that “separate educational facilities are inherently unequal.” This case epitomizes the Supreme Court’s role in establishing justice, as it actively sought to dismantle institutionalized racism or uphold the principles of equality and protect the rights of marginalized communities.

“Justice for all” runs as a vein throughout the Constitution—starting with the preamble’s charge that “We the people” will use the Constitution to “establish justice” and then running through the principles embodied therein. Much of this charge is carried out by the Due Process clauses in the Fifth and Fourteenth Amendments, and it has been left to the Supreme Court throughout U.S. history to further ensure that this commission from the Founders to ensure that there is “justice for all” is carried out.

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

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

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

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

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Mandate or Law: The American Founders on Warning Against Arbitrary, Tyrannical Dictates Diluting Rule of Law

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Guest Essayist: Andrew Langer
Mandate or Law: The American Founders on Warning Against Arbitrary, Tyrannical Dictates Diluting Rule of Law

 

Essay Read by Constituting America Founder, Actress Janine Turner

 

In the realm of United States governance, the terms “mandate” and “law” frequently arise, often creating confusion due to their seemingly overlapping meanings. Both play essential roles in shaping the country’s legal and political landscape, yet they are distinctly different in nature and application—and both must be understood within the context of due process of law, both substantive and procedural.

A law, as per the United States Constitution, is a rule established by the government that dictates the actions of its people. It’s a formal norm that has been approved by a legislative body and, if necessary, signed into effect by the executive branch. Laws are codified in written form and are enforceable by the judiciary. In the United States, federal laws apply to all states and territories, while state laws apply only within their respective jurisdictions.

On the other hand, a mandate in the context of U.S. governance often refers to a policy or requirement that a higher level of government imposes on a lower level. For instance, federal mandates require states or localities to perform certain actions, often under the threat of financial or legal penalties. These mandates may come in various forms, including conditions for receiving federal grants, requirements imposed as a part of federal civil rights laws, or conditions for participating in voluntary federal programs.

Unlike laws, mandates do not necessarily have to go through the same rigorous legislative process. Some mandates are issued by federal agencies as regulations, under the authority granted to them by Congress. Others are issued directly by the executive branch, such as through executive orders.

While a law is a directive that comes with its own enforcement mechanism, a mandate is a requirement that may or may not come with specific penalties for non-compliance. Compliance with a mandate is often tied to the receipt of federal funds. For example, states may be required to comply with certain federal mandates to receive funding for highway construction or education.

In the dynamic landscape of American politics and law, it is essential to note that the boundary between mandates and laws can sometimes blur. As such, ongoing vigilance and discourse are required to ensure the appropriate balance—especially given how both laws and mandates can impact “true” law—which can be viewed within the context of the 5th and 14th Amendments’ guarantees of due process for all citizens,

The founding of the United States was a grand experiment, the creation of a republic aimed at securing the rights and liberties of its citizens. Central to this vision was the rule of law, which the Founders intended as a safeguard against arbitrary and tyrannical rule. The United States Constitution thus enshrines due process as an essential component of legal justice, a bulwark against any effort to dilute the power and relevance of law and order. The twin concepts of substantive and procedural due process, while less known to the general public, are pivotal elements of the due process doctrine and serve as vital tools in safeguarding individual liberties.

Before delving into the importance of both substantive and procedural due process, it is crucial to understand the distinction between the two.

Substantive due process is a doctrine that protects citizens from government actions that could interfere with fundamental rights or liberties. It requires the government to justify any intrusion into personal and economic freedoms with a sufficient and compelling state interest. For instance, the right to privacy and the freedom of speech are protected under this doctrine, and any governmental attempt to restrict these rights must meet a rigorous standard of scrutiny.

Procedural due process, on the other hand, is concerned with the fairness of how a law is applied or a decision is made. It safeguards individuals from arbitrary deprivation of life, liberty, or property by ensuring they receive a fair process, which typically involves notice and an opportunity to be heard. Procedural due process thus protects against the abuse of power, ensuring that the rule of law is upheld even when the government takes necessary actions.

The Founding Fathers were acutely aware of the danger posed by arbitrary laws and mandates that had the force of law but lacked the due process of law. They had experienced firsthand the arbitrary rule of a distant monarch and were determined to construct a system of government that would prevent such abuses.

Substantive due process plays an indispensable role in upholding this vision. By requiring the government to justify any infringement on fundamental rights, it ensures that laws and regulations do not arbitrarily or unjustly infringe on individual liberties. This doctrine serves as a shield, protecting citizens from arbitrary laws that could unduly limit their freedoms.

Procedural due process, meanwhile, acts as a sword, enabling citizens to challenge any governmental actions they believe infringe on their rights. By providing a fair and transparent process for reviewing governmental actions, it ensures that citizens have a meaningful opportunity to contest any perceived injustices.

Timothy Sandefur, a legal scholar, has made significant contributions to the understanding of the phrase “due process of law” in the United States Constitution, specifically emphasizing the importance of the term “of law.” He has argued that “due process of law” is not just about the process itself, but also about the substance of the laws that govern that process, a concept commonly known as substantive due process.

One of the key elements of Sandefur’s argument is the idea that “due process of law” should not be understood as merely a procedural guarantee. Rather, it also provides substantive guarantees against “unfairness.” This understanding is rooted in a deeper interpretation of the Constitution, not limited to the literal wording of the document but also considering its structure, ideas, and history. According to Sandefur, the Constitution’s promise that “no person shall be deprived of life, liberty, or property without due process of law” implies not only that the government must adhere to certain procedures when imposing a deprivation, but also that some acts are inherently off-limits for the government, regardless of the procedures used to implement them​.

Sandefur also discusses the concept of law in this context. He explains that law is the use of government’s coercive powers in service of a general principle of the public good, and it is the opposite of arbitrariness. The law should not be a self-serving tool of those in power. Therefore, the “of law” in “due process of law” ensures that the government’s actions are guided by lawful principles and not by arbitrary or self-serving motives. A lawful government is characterized by general rules that benefit all, rather than specific commands or actions that only benefit those in power. This principle is a fundamental part of due process of law, guaranteeing citizens protection under the general rules that govern society​. In Sandefur’s view, due process of law means that the government may not limit our freedom without good reason. What constitutes a “good reason” is determined by reference to political and legal principles, not merely by legislative whims or self-interest. This view reflects the inherent overlap of “procedure” and “substance” in the understanding of due process of law. To be treated lawfully means to be treated in accordance with general, public principles (substantive) and through established procedures (procedural). Sandefur uses the examples of a vetoed tax bill and a bill establishing an official religion to illustrate the concept of substantive due process. In both cases, even if the procedural steps have been followed, the substantive aspect of the law can make it invalid. The same logic, according to Sandefur, applies to implicit or inherent limits on government power. If the legislature passes a statute that it lacks the authority to make, that statute cannot be considered law, and enforcing it would violate the citizen’s right not to be deprived of life, liberty, or property except by due process of law​​.

In the end, regardless of whether the government is enforcing a law derived from legislation, or a mandate derived from some other government action, the rights to due process must be respected.  Anything short of that respect does serve to dilute “true law” and undermines the protection of the liberty of the people.

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

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

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

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

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Principle of Meritocracy and Its Importance Within the Framework of the U.S. Socio-Economic and Political Systems

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Guest Essayist: Andrew Langer

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

In the grand scheme of social ideals, meritocracy reigns as one of the most impactful principles, fostering a society where individuals rise to prominence and power based on their abilities and achievements, rather than birthright or privilege. The principle of meritocracy underscores the very foundation of a fair society, where hard work, talent, and innovation are rewarded. It is pivotal in maintaining a free and prosperous society, and here’s why.

Firstly, meritocracy promotes equality of opportunity. In a true meritocracy, everyone has the chance to succeed based on their own merit regardless of background. This allows for a leveling of the playing field, granting each person the right to rise according to their abilities and efforts. A society that champions meritocracy encourages individuals to strive for their best, fostering a culture of hard work, resilience, and ambition.

Secondly, meritocracy fuels innovation and economic growth. When individuals are rewarded based on their talent and efforts, they are incentivized to innovate, create, and perform at their best. This, in turn, stimulates economic growth and prosperity. History is rife with examples of societies that flourished when merit was rewarded – from the rapid technological advancements of the Silicon Valley tech giants to the economic miracles witnessed in post-war Japan and Germany.

Thirdly, meritocracy ensures the most competent individuals lead. In a society where leadership roles are based on merit, the most qualified, skilled, and effective leaders rise to the top. This promotes better decision-making, efficiency, and performance in both public and private sectors, leading to overall societal improvement.

While the term “meritocracy” was not in use during the time of the Founding Fathers, their actions and beliefs make it clear that they championed the principles that underpin this concept. Through their personal examples and the institutions they established, they laid the groundwork for a society that values individual ability and achievement. It is this foundation that has allowed the United States to continually strive towards the ideal of a meritocracy, where everyone has an equal opportunity to succeed based on their own merits and abilities.

It is clear, however, that concept of meritocracy was implicit in their writings and actions. Meritocracy resonates deeply with the democratic ideals that the Founding Fathers held. Their approach to this concept, while not explicitly labeled as meritocracy, can be discerned through a careful examination of their actions, writings, and the institutions they established.

The Founding Fathers, including individuals such as George Washington, Thomas Jefferson, and Benjamin Franklin, all demonstrated a belief in the power of individual merit. This belief was deeply rooted in the Enlightenment, a period of intellectual and philosophical development that greatly influenced their thinking.

George Washington, for example, rose to prominence not because of inherited wealth or title, but due to his leadership abilities and military acumen during the Revolutionary War. He was a model of the self-made man, a figure that would become emblematic of the American Dream, and his leadership was a testament to the power of merit.

Thomas Jefferson, the principal author of the Declaration of Independence, held a belief in the natural rights of man. He stated that “all men are created equal,” indicating that everyone should have the same opportunities for success. This belief aligns with the principles of a meritocracy, which values individuals based on their achievements rather than their social status or wealth.

Benjamin Franklin was perhaps the most explicit proponent of meritocratic ideals. He was a vocal advocate for education, believing it to be the key to social mobility and individual improvement. Franklin’s establishment of public institutions like libraries and universities was a practical embodiment of his belief in the power of self-improvement and personal merit.

The Founding Fathers not only championed the concept of meritocracy in their personal lives but also institutionalized it in the formation of the American political system. The U.S. Constitution, which they crafted, has several meritocratic elements.

For instance, there are no hereditary offices in the U.S. government, meaning that one cannot inherit a position of power. This provision was a clear departure from the monarchical systems of Europe where power was often passed down through generations. Instead, public offices in the U.S. are filled through elections, with the aim of choosing the most qualified individuals, a clear nod to meritocratic principles.

The system of checks and balances, another cornerstone of the U.S. Constitution, is also implicitly meritocratic. It requires that individuals in power continually demonstrate their abilities and merits in order to maintain their positions. This system promotes accountability and discourages complacency, further emphasizing the importance of merit over inherited status.

In a society where positions and rewards are distributed according to merit, the concept of meritocracy reigns supreme. It’s a system that believes in the power of hard work, talent, and ambition, asserting that each individual, regardless of their background, has the potential to climb the societal ladder based on their capabilities. But what happens when we abandon this principle? How does it affect our political and economic landscapes?

Politically, abandoning meritocracy may lead to a shift in power dynamics, affecting the governance of a nation. In a meritocratic society, leaders are chosen based on their abilities, credentials, and proven track records. They have demonstrated their competence and capacity to lead, fostering a sense of public trust. If we abandon this principle, we risk ending up with leaders who might not possess the necessary skills or experience. There’s a potential for nepotism and cronyism to take root, as appointments might be influenced by personal relationships rather than professional competence. This could erode public trust and potentially destabilize political systems.

Economically, meritocracy is a key driver of innovation and productivity. When rewards and advancements are tied to performance, it encourages individuals to improve their skills, innovate, and work efficiently. Removing this incentive might lead to a decline in overall productivity. Furthermore, it could also result in an inefficient allocation of resources. If jobs and promotions are not given based on merit, then the most competent individuals may not end up in positions where their skills are best utilized. This inefficiency can slow economic growth and development.

Abandoning meritocracy also brings up concerns about fairness and social mobility. Meritocracy, at least in theory, offers an equal playing field, allowing individuals from any background to succeed if they have the ability and put in the effort. Without it, those from privileged backgrounds may have an unfair advantage, leading to increased social inequality and a decrease in social mobility.

Like so many other aspects of American society, the embedding of the principles of meritocracy within our political and economic systems have yielded enormous benefits.  Abandoning those principles would be foolish, and have terrible consequences in the near and long term.

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

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

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

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

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

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Principle of Equality Over Equity

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Guest Essayist: Andrew Langer

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

The principle of equality, a cornerstone of democratic societies, is deeply rooted in the idea of “equal opportunity” – the notion that everyone should have a fair shot at success. This concept is fundamentally distinct from the ideology of “equal outcomes,” which guarantees identical results for everyone, irrespective of effort, talent, or innovation. Equality of outcome is a seductive concept; it promises a world without disparity or struggle. However, this notion undermines the core tenets of free markets, competition, and innovation that have been the driving force behind American society’s economic prosperity and advancement.

The Declaration of Independence’s statement that “all men are created equal” signifies that all individuals are endowed with the same inherent rights and that they are equally worthy of respect and dignity. This phrase is generally interpreted as a call for equal treatment and opportunities, rather than a guarantee of identical results.

This profound statement, however, does not imply that all men will achieve equal outcomes. Rather, it signifies that all men are endowed with the same inherent rights and that they are equally worthy of respect and dignity. It is a call for fair treatment and equal opportunities, not a guarantee of uniform results.

The Constitution of the United States, a document drafted by forward-thinking individuals who appreciated the dangers of tyranny, does not promise equal outcomes. Rather, it guarantees equal rights and opportunities. This foundational text ensures that every citizen has the same fundamental rights, echoing the Declaration, that of life, liberty, and the pursuit of happiness. The Constitution is essentially silent on the matter of ensuring equal outcomes, a silence that underscores the drafters’ understanding of human nature and the importance of individual agency, meritocracy, and free market principles.

Renowned Constitutional scholars also reflect on this difference. They argue that the Constitution’s promise of equality under the law is not a guarantee of equal outcomes. Instead, it is a promise of equal treatment, a commitment to impartiality and fairness. Legal scholar Robert H. Bork, for instance, argued that “In terms of the Constitution, ‘equality’ refers to the equal protection of the laws,” which does not extend to ensuring uniform outcomes in life.

The free market system, an essential aspect of our society, thrives on the principles of competition, innovation, and consumer choice. The market is a dynamic system that rewards efficiency, innovation, and hard work. It is a platform where individuals can compete on a level playing field, leading to the creation of new products, improved services, and economic growth. A guarantee of equal outcomes would stifle this dynamism, extinguishing competition, and discouraging innovation.

In contrast, the concept of equality of outcomes rests on the notion that everyone should have the same level of material wealth and social standing, regardless of their individual efforts or abilities. This idea, seductive in its apparent fairness, is a cornerstone of many communist philosophies. However, in practice, it has often led to disastrous consequences, both economically and culturally.

Consider the Soviet Union, a nation that wholeheartedly embraced the principle of equality of outcomes. Despite initial hopes for prosperity and fairness, the Soviet economy was characterized by stagnation, inefficiency, and widespread poverty. The central planning that drove the Soviet economy disregarded the intricate web of individual desires, talents, and efforts that naturally guide economic activity. This resulted in a mismatch of supply and demand, with shortages of basic goods and services becoming the norm.

When the rewards of hard work and innovation are stripped away, the incentive to strive for excellence diminishes. A system that does not reward individual effort or skill discourages initiative and creativity. The Soviet Union suffered from this stifling of innovation, with its technology and industries lagging behind those of its Western counterparts.

The cultural implications of equality of outcomes are no less severe. When outcomes are predetermined, competition becomes a threat rather than a source of motivation. This breeds resentment and hostility, turning people against each other in a society that should foster cooperation and mutual respect. In the Soviet Union, the state’s intrusive control over every aspect of life led to widespread distrust and fear, further fracturing social unity.

Moreover, the pursuit of equality of outcomes often necessitates a powerful central authority to enforce redistribution. This can lead to the concentration of power in the hands of a few, ironically fostering a new form of inequality. In the Soviet Union, this led to an authoritarian regime marked by brutal repression and a disregard for individual liberties.

As former Congressman and Director of the Office of Management and Budget David Stockman noted in his book, “The Triumph of Politics”:

“[Those who believe in equality of opportunity] start with history and society as they are, and places the burden of proof on those who would use the policy instruments of the state to bring about artificial change. [Those who believe in equality of outcomes] start with an abstraction—a vision of the good and just society—and places the burden of defense on the bloody process. Implicit in the [former] is a profound regard for the complexity and fragility of the social and economic order, and a consequent fear that policy interventions may do more harm and injustice than good. By contrast, the activist impulses of the [latter] derive from the view that a free society is the natural incubator of ills and injustices.”

The pursuit of equality of outcomes in the Soviet Union and other similar regimes resulted in economic inefficiency, social division, and the undermining of individual liberty. These historical examples serve as a stark reminder of the potential dangers of such an approach.

Critics argue that the pursuit of equality of opportunity can still lead to significant disparities in outcome. This is undoubtedly true. However, it is essential to remember that the goal is not to eliminate disparity but to ensure that these disparities are not the result of arbitrary discrimination or unfair practices. Moreover, a certain level of inequality can serve as a motivating factor, encouraging individuals to strive for betterment, to innovate, and to contribute to society’s progress.

The principle of equality of opportunity, rather than equality of outcomes, promotes a healthier society. It encourages personal growth and accountability, rewards hard work and innovation, and respects individual liberty. This principle aligns with the Constitution’s guiding tenets and the Declaration of Independence’s profound assertion that “all men are created equal.”

In conclusion, a focus on equal outcomes can lead to unintended consequences, including stifled innovation, suppressed competition, and a disregard for individual liberty and choice. Conversely, a commitment to equal opportunity fosters a dynamic society where individuals are free to chart their own paths, innovate, and contribute to societal progress. The Constitution and our nation’s founding documents endorse this principle of equal opportunity, a principle that has been instrumental in shaping the American ethos of liberty, hard work, and individualism. This is the path we must continue to tread.

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

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

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

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

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Under Strict Limits: Principle of a Written U.S. Constitution, a Contract Allowing Government to Run Under Authority of the American People

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Guest Essayist: Andrew Langer
“Washington as Statesman at the Constitutional Convention” a painting depicting George Washington presiding over the Constitutional Convention of 1787, by Junius Brutus Stearns.

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

The brilliance of the United States Constitution lies not just in its innovative governance structure but in its foundational principle: that it is a written contract allowing, under strict limits, a government to run under the authority of the American people within the states. This principle, in fact, was not an accidental development but a conscious response to the concerns and criticisms prevalent in the post-revolutionary era. One such concern was voiced in a 1778 letter disparaging the American constitutions as inadequate in their republican form, claiming they replicated the tyrannies America sought to escape. It is to this concern that John Adams, a pivotal figure in the nation’s founding, offered a compelling defense.

Adams replied in his first letter which was part of his three-volume response written from 1787 to 1788:

“There are in the productions of all of them, among many excellent things, some sentiments, however, that it will be difficult to reconcile to reason, experience, the constitution of human nature, or to the uniform testimony of the greatest statesmen, legislators, and philosophers of all enlightened nations, ancient and modern.” – A Defense of the Constitution of Government of the United States of America, Letter I, Volume I, Preliminary Observations, John Adams, Grosvenor-Square, October 4, 1786

Even though, through his letters, Adams’ initial response is directed to the American state constitutions of the time, through this lens, the U.S. Constitution that would come later can be seen not just as a foundational document of a nation, but as a meaningful dialogue with history, philosophy, and human nature itself. His profound assertion draws attention to the uniquely American synthesis of reason, experience, and an informed understanding of human nature that undergirds the U.S. Constitution.

Adams’ defense provides an insightful understanding of the Constitution’s design. The reference to “reason, experience, the constitution of human nature” underscores the importance of these elements in the design of the Constitution. He acknowledges that no political document, including the American constitutions, can be free from imperfections. Yet, he contends that the United States Constitution, by grounding itself in human reason and experience, offers a robust framework for the functioning of a republic.

The Constitution’s written nature, as Adams seems to imply, is central to ensuring its efficacy as a contract between the people and the government. A written constitution provides a tangible and constant point of reference, a standard against which the actions of the government can be measured. In the context of the American Revolution, a written constitution was particularly significant. It represented a break from the unwritten traditions and discretionary powers that characterized the monarchy America was rebelling against.

Moreover, the Constitution goes beyond merely setting the rules of governance. Its provisions for separation of powers, checks and balances, and federalism were innovative measures to prevent the concentration of power – a direct response to the accusation of the American constitutions merely “repeating dictatorships.” These mechanisms ensure that no single entity within the government can dominate, thus safeguarding the people’s control over their government.

In the light of Adams’ emphasis on the “uniform testimony of the greatest statesmen, legislators, and philosophers of all enlightened nations, ancient and modern,” it is clear that the Constitution was not conceived in a vacuum. Instead, it was informed by a rich tradition of political thought. The Framers drew upon lessons from ancient Rome and Greece, Enlightenment philosophies, and contemporary political experiences. They sought to create a Constitution that would not only serve the immediate needs of the fledgling nation but also stand the test of time.

Moreover, they were influenced heavily by the country’s experience under the Articles of Confederation, the nation’s first written constitution. Its deficiencies, including the national government’s inability to act during Shays’ Rebellion (1786–87), exposed the need for a more robust central government capable of direct taxation and regulating interstate commerce.

Furthermore, the U.S. Constitution embodies the principle that the ultimate authority rests with the American people. This principle is most evident in the Constitution’s opening words: “We the People…” It is the people who are giving the government its power and setting its limits. The Constitution, therefore, is not an instrument of the government to control the people, but an instrument of the people to control their government. This is the essence of the republican form that the 1778 critique claimed was lacking.

The Constitution’s authors were acutely focused on limiting the power of government and securing citizens’ liberty. They sought to strike a balance between authority and liberty, embodying the central purpose of American constitutional law. To achieve this, they adopted the doctrine of legislative, executive, and judicial separation of powers, checks and balances, and explicit guarantees of individual liberty.

Integral to the Constitution’s design is the principle of a social contract—a fundamental agreement between the government and the governed. This social contract places the Constitution within the Enlightenment’s philosophical tradition, drawing upon ideas from ancient philosophy, English common law, English political theory, and the European Enlightenment.

However, this isn’t the complete picture of the Constitution’s influence. To fully comprehend its breadth and significance, it’s essential to understand John Adams’ quote in context. His argument suggests a keen awareness of the complexities and potential pitfalls of constructing a republic, a challenge the Framers of the U.S. Constitution had to grapple with—an awareness no doubt gleaned from his years of political work in the Continental Congress, where he saw firsthand the perils of unbridled power, fostered a deep-seated commitment to the principles of decentralization and individual liberty. It was Adams who famously remarked that “power must never be trusted without a check.”

Adams’ involvement in the negotiations leading to the unanimous vote on the Declaration of Independence further honed his views on the balance of power. He witnessed the states banding together in a common cause, each contributing to the struggle for independence while retaining their individual identities and rights. The unanimous vote was a testament to the power of cooperative federalism, a principle that would later be enshrined in our Constitution.

In crafting the Constitution, Adams drew on these experiences to advocate for a system of government that balanced the authority of the federal government with the rights of states and individuals. He championed the idea of a strong central government, yes, but one that was kept in check by the rights of states and the liberties of the citizenry. It is this delicate equilibrium, so cherished by Adams, that has allowed our republic to flourish.

For Adams, and for us, the essence of American liberty lies in this balance. His experiences in the crucible of independence shaped a vision of government that valued both the collective strength of the federal government and the individual freedoms of its citizens.

The United States Constitution stands as a beacon of American political philosophy, embodying a profound understanding of human nature, reason, and the wisdom of past statesmen, legislators, and philosophers. It is the embodiment of a social contract, firmly rooted in the principle of popular sovereignty. Yet, it is also a testament to the profound challenges and complexities involved in crafting a republic that is both robust and responsive to the needs of its citizens. To fully appreciate its significance, we must heed Adams’s words and reconcile its provisions with the wisdom that can only come from experience.

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

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

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

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

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

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Principle of Civic Duty to Petition the Government for a Redress of Grievances

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Guest Essayist: Andrew Langer

Essay Read By Constituting America Founder, Actress Janine Turner

 

“Congress shall make no law… abridging the freedom… to petition the Government for a redress of grievances.” – United States Constitution, Amendment 1

A key element in America’s quest for independence was the ire that certain colonists felt at being taxed without representation (an overly simplified view of decades of frustration at a variety of policies imposed by the British Crown on Colonial America without the consent of the citizens of the colonies). Part and parcel of this was the difficulty the citizens had in presenting those grievances to the crown (or parliament), and the perception that those who did voice concerns or opposition were singled out for punishment by the government.

So as the Constitution was being drafted, and further constraints were being placed on the power of government via the Bill of Rights, the founders included language in the First Amendment ensuring that citizens would retain a right to so petition the government when they were aggrieved—with a corresponding assurance found in the Fifth Amendment, that when such substantive petitioning is made, “due process” is accorded to the petitioner i.e., that a fair and just process is made available to the person or persons petitioning.

When most people consider this, they think about the right of individuals to advocate or otherwise speak their minds before legislators, i.e., to offer their opinions on legislation. But in an era in which policy is increasingly being delegated to the Executive Branch, it is important to examine how this right, or civic duty, is protected within the context of the “administrative” state.

When Congress passes a law, it is then up to the Executive Branch to interpret and enforce that law, to “administer” it, in other words, and thus the “administrative” state. The more vague that law might be (and sometimes not so vague), the greater leeway an agency has to interpret that law.

For example, Congress passes the Clean Water Act in 1972. In that law, they make it illegal to pollute a navigable water of the United States.  Because Congress failed to define words or phrases like “pollute” or “navigable” or “water of the United States,” they left it up to the Executive Branch to define them.

The right to petition then plays a singular role in this. The agency presents its proposal for how to define terms or, more broadly, how they plan on interpreting and enforcing any piece of legislation, and it then opens a process whereby the public can comment on their proposals.

This process is government by a law known as the “Administrative Procedure Act” (APA). The APA was passed by Congress in 1946 in order to standardize the petitioning/commenting process across the federal executive branch. Prior to that point, each agency had the discretion to create its own process, something that could make overly complicated the ability of citizens to exercise their right to petition for redress.

Now, with few exceptions, the process by which someone can “comment” on a “rulemaking” is the same regardless of whether someone is filing that comment with the Occupational Safety and Health Administration (OSHA), the Department of Health and Human Services (HHS) or the Department of the Interior. A “rulemaking” is the standard term whereby an agency goes through the process or creating or amending the regulations that have been created out of congressional legislation. A “comment” is just that, the opinion filed by a person or group regarding that regulatory proposal.

At its most basic level, the process works this way: either Congress passes a new law, or amends a law, or the agency wants to make changes to existing policies, and they announce this in a daily publication called The Federal Register. They offer their proposal in something called a “Notice of Proposed Rulemaking” or, less frequently, an even earlier step called an “Advanced Notice of Proposed Rulemaking,” and tells the public how they can comment on those proposals.

Anyone can file a comment—and it has never been easier to do so.  Most agencies utilize an online portal called Regulations.Gov to both announce proposals and solicit for comments, and comments can be submitted online with a matter of clicks.

It is a system that the founding fathers would have enthusiastically applauded. Though many would have been horrified at the concentration of power in the Executive Branch, the idea that any citizen could, with the touch of a button, voice their substantive concern about a policy proposal would have heartened them at the same time. They just would have been concerned that not more people were aware of this.

As part of the APA, agencies are required to answer such “petitions” (when they are substantive) in the publication of their “final rule” i.e., the finalized regulatory policy—either demonstrating where they have made changes to the proposal in accordance with those substantive comments, or explaining why they didn’t make such changes. Failure to do so opens the regulation to court challenges, on the grounds that the new rule is “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law.”

Even better, the APA doesn’t require that the citizenry wait until the agency makes a regulatory proposal in order to have changes to a rule made. Another aspect of the manifestation of the right to petition for the redress of grievances within the APA is the right to petition a regulatory agency to open up a rulemaking—again, with the agency being required to respond if they decide to not go through a new rulemaking process.

While the APA’s rulemaking process applies to nearly all agencies, agencies within the national security and defense spheres are generally recognized to be exempt, though some will engage in this “notice and comment” process when they have policy changes that they know will be controversial or otherwise of tremendous interest to the public.  Likewise, transactional decisionmaking and contracting are not open to this APA’s process (though citizens always have the right to comment on such issues with those agencies).

What is worth noting is that the deliberative process of the APA can be frustrating, especially to policymakers, and the citizenry needs to be on guard for when agencies attempt to sidestep the APA. Increasingly, agencies are turning to what they claim are quasi-rulemakings—smaller proceedings that these agencies claim are not subject to the full APA notice-and-comment process. These agencies create guidance documents and interpretation letters purporting to carry the full force of regulatory law, but aren’t subject to the full vetting that a rulemaking allows.

The Competitive Enterprise Institute refers to such activity as “regulatory dark matter”—and while in January of 2017 the President created an executive order to substantially rein in regulatory dark matter, the following administration undid that executive order almost immediately upon taking office in 2021.

Thankfully, Congress is becoming ever more aware of the problem of regulatory dark matter, and is working to hold the executive branch accountable.

In the end, given the size and scope of the modern administrative state in the U.S., the notice and comment process under the APA is of vital importance, and emblematic of the enduring importance of the right, or civic duty, to petition our government for a redress of grievances.

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

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

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

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

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

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Principle of Appropriate Role and Purpose of Government in Protecting Liberty of the Citizenry

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Guest Essayist: Andrew Langer
United States Constitution showing the first page with Article I, with the Bill of Rights and American Flag

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

Since the earliest days of the American founding, a bedrock principle of our republic has been the concept that government is an essential element in protecting and preserving individual rights. In the Declaration of Independence, principal author Thomas Jefferson wrote, “to secure… rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”

Building on this precept, in Federalist 51, James Madison talked about the tension between the necessity of government in protecting individual rights, but the need for the governed to work to constrain the powers of government:

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

Our republic is built on a simple, yet powerful, concept: we are endowed by our creator with certain “unalienable” rights.  We cede small measures of those rights to government in the form of powers, in order for the full-measure of our rights to be protected.

This leads to a fundamental axiom: whenever government is enlarged, individual rights are diminished. You cannot reconcile liberty with anti-liberty.

This gives us not only the basic structure of the federal constitution, but most state-based constitutions as well. The Articles of the United States Constitution lay out the powers of government—i.e., what measure of rights we have ceded to the government in the form of powers. The first eight amendments within the Bill of Rights represent further constraints on those powers in order to protect individual rights.

But then the last two amendments in the Bill of Rights, Amendments 9 and 10, make further declarations regarding the balancing of rights versus the powers of government.

The Ninth Amendment makes it clear that the rights of citizens aren’t limited to what is “enumerated” in the Bill of Rights, that their rights are essentially infinite, while the Tenth Amendment underscores this idea that the powers of government are created by the people giving up some measure of their rights—and anything not “delegated” to government is “reserved” by the people.

Further, while a New Deal-era Supreme Court dismissed limitations on federal power in cases like US v. Darby, even that court had to admit that when it comes to the Tenth Amendment, it states, “a truism that all is retained which has not been surrendered.” US v. Darby, 312 US 100, 124 (1941)

This tension underscores the fundamental beauty of our system—we are not a pure democracy (something our founders were rightly skeptical of).  As the saying goes, “democracy is two wolves and a sheep deciding what to have for supper.”

We recognize that while the people can vote to make particular laws, those laws can only exist within the powers the people have delegated to government and they cannot be violative of the rights retained by the people. So while one group of people, even a majority of the people, might demand that government impose restrictions on certain kinds of unpopular speech, the First Amendment makes it clear that such restrictions would be unconstitutional (and one can say that the entire purpose of the First Amendment is to protect “unpopular” speech. “Popular” speech requires no such protection!).

How, then, do we assess this balance between the rights of people and the powers of government?

It starts with a basic inquiry.  All “just” law is born out of the intersection of the exercise of individual rights. One’s right to wave their hands around in a wild interpretative dance (the right to free expression) is limited the moment those hands cross the bridge of someone else’s nose, and violate their right to be secure in their person, free from harm. And when those rights come into conflict, it is the party that is more-aggrieved that the law is supposed to protect (and the law is supposed be more weighted on behalf of those less-able to advocate for themselves).

This presents our society with the need for “balancing tests” to determine where that line ought to be drawn: how is the right to free speech balanced against someone’s right to now be lied about (a harm to their reputation)? Or how is someone’s right not to be harmed by government’s force balanced against the rights of people in a community to not be harmed by that person’s violent actions?

When the public, either through legislation or via the courts, calls for a new law, a new balancing test, the Supreme Court has made it clear that such laws, such decisions, need to be made in a way to be the “least restrictive” way of achieving the government’s goals. This way the rights of the individual are still protected to the maximum extent possible.

While there remains considerable debate as to whether such balancing tests are a good thing, or whether there is harm in the long run from a series of ad hoc inquiries into that balance, in the end it is important to remember that the Constitution sets out essential bedrock principles in that regard. All that is not surrendered is retained, and we should remain vigilant each and every time we look to enlarge the power of government.

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

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

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

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

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

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Guarding American Sovereignty: The United States Constitution and Its Protections Against World Government Control

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Guest Essayist: Andrew Langer
The Signing of Peace in the Hall of Mirrors, Versailles 1919, painting by Sir William Orpen.https://en.wikipedia.org/wiki/Paris_Peace_Conference_(1919%E2%80%931920)#/media/File:William_Orpen_%E2%80%93_The_Signing_of_Peace_in_the_Hall_of_Mirrors,_Versailles_1919,_Ausschnitt.jpg


The beauty of the American Constitution, as originally conceived, was that its authors recognized the inherent dangers of concentrated power at the highest levels of governance, and created a structure that both constrained the federal government’s powers while at the same time enumerating that the balance of those powers would be retained by state governments (and, by extension, local governments, since most local governments are creations of state governments), and the people.

The American Founders did this because they recognized that the bulk of public policy decision making was best left to levels of government that were closer to the people—those levels of government better understood problems in individual communities and local governments, and governance, were more easily controlled by citizens within those jurisdictions.

But in the wake of World War I, also known as “The Great War” or the “War to End All Wars, there came a call for greater international cooperation by governments, if not some kind of outright “global government” and out of those calls came, first, the League of Nations, and then, after the League of Nations failed to prevent World War II, the United Nations.

The First World War was commonly referred to as “The Great War” because of the war’s truly devastating scale—in terms of both lives lost, and people injured, as well as the impact it had on infrastructure. In fact, across the globe, you can still see the impact the war had on the surrounding environment. As a result, there was a call by leading nations to create some kind of instrument of global cooperation, and disarmament, to prevent just that kind of war from happening again: a “League of Nations.”

And the League of Nations met with limited success, in spite of the fact that the United States didn’t join even with President Woodrow Wilson’s advocacy for just such a league. But because the league failed to grasp geopolitical realities, such as what the sanctions on a post-World War I Germany might have on that nation’s ongoing politics, that body failed to prevent the Second World War from occurring.

It was during World War II that the concept of the United Nations was born—with the cooperation of the United States, Great Britain and the Soviet Union. In 1945, as the war was drawing to a close, the leaders of the Allied powers agreed that following the war’s end, that such a body would be developed. In June of 1945, just after Germany surrendered, the UN Charter was created. In October of 1945, two months after Japan surrendered, the Charter was made real.

To be clear, the United Nations is not a “world government” though there are some who would like it to be. Clark Eichelberger, a 20th century peace activist and advocate for both the League of Nations and the UN, wrote in the Annals of the American Academy of Political Science in 1949 that:

“World government has evolved and will evolve through the United Nations… the United Nations is the beginning of the process we need.”

But in the last seven decades, despite great efforts on the part of some to make a global government manifest, this has not occurred. The UN has no power to tax, no power to directly regulate. Any interference in inter-governmental disputes or in civil conflict can only come with either the agreement of local governments, or, in rare occasions, with the decision of voting members of the United Nations.

When it comes to involvement of the United States, the U.S. relationship with the UN is similar in most respects to how the deals are made with most foreign agreements, i.e., through the Constitution’s treaty powers.  Essentially, from a constitutional perspective, the involvement of the U.S. in the UN is not dissimilar from other bilateral, between the U.S. and one nation, or multilateral, between the U.S. and more than one other nation, international agreements.

In fact, the only way for the United States to be “legally obligated” to cooperative policy decision making by the UN is for Congress to ratify whatever policy United States diplomats are considering signing or have signed. While those obligations are to our partners at the UN, the “legal” portion of it has to do with the agreement the U.S. government has with its people i.e., to only be bound, internationally, through ratified treaties.

This is because those international agreements, once ratified, become U.S. law, and enormously difficult to disentangle once put into place.  Take the North American Free Trade Agreement (NAFTA), for example. Though not an agreement through the UN, it bound U.S. trade policy for decades, and became enormously difficult to reform, despite the negative impacts many in the United States were seeing.

In contrast, the Kyoto Protocols on climate, a climate policy agreement negotiated via the UN, was never ratified by the U.S. Senate. Many in the U.S. had deep and abiding concerns about the impact the policy obligations of Kyoto could potentially have on the U.S. economy. So, while the United States, under President Bill Clinton, signed the Kyoto Protocols, and there were many things that the Clinton administration could do to advance the goals of Kyoto (because of the size of the administrative/regulatory state and the powers that the Executive Branch has in terms of interpreting or re-interpreting existing federal environmental laws), the United States was not bound by the Kyoto protocols, as they would be within a treaty.

Central in all of this is the issue of “sovereignty.” By definition, when the United States, or any nation for that matter, enters into a treaty, they are giving up some measure of that nation’s sovereignty in favor of international cooperation usually as a result of the combination of negotiation and compromise.

As was demonstrated by the withdrawal of Great Britain from the European Union, multinational cooperative governance can have huge implications for individual member nations and their citizens—something British Prime Minister Margaret Thatcher had warned about when the EU was created. The further removed from the local population that government control becomes, the more onerous the burdens those governments can impose. With that comes a real difficulty in forming policies that reflect what local populations need and takes steps to protect those populations from harm.

It could be said that Prime Minister Thatcher was echoing the concerns raised by her predecessor in office, Winston Churchill, who, despite being instrumental in the creation of the UN, had concerns of his own.  As reported by the New Republic in 1949:

“Churchill, as he confessed at The Hague in May, 1948, never accepted the concept of the United Nations. He feared the consequences of ‘a system where there was nothing between the supreme headquarters and the commanders of the different divisions and battalions.’ He wanted a world organization made up of representatives of regional associates.”

Thankfully, given protections that the U.S. Constitution affords, the people of the United States can rest assured that their sovereignty will be protected from a United Nations becoming the kind of multinational governmental behemoth that the EU became.

This is due, in no small measure, to the United States Constitution’s mandates about the Senate’s advise and consent role in terms of treaty ratification—if the foreign relations team of a U.S. president were to fail at their job or to be seriously compromised in some measure in terms of international negotiation, and as a result the U.S. were to give up a great deal of its independence, its sovereignty, it is left to the Senate to ensure that the interests of the people of the United States are protected, and that the agreement should not be ratified.

It is important to also note that Congress has a vital role to play in terms of internationally cooperative military activities. The UN has no standing army, another aspect of its existence that makes it fall short of a “world government.” It relies on its member nations in order for it to engage in any military action, usually under the auspices of “peacekeeping.”

The President is obligated to inform Congress of any military action that falls short of a “war”—and the President has 90 days before Congress must take action on whether to continue such operations.

In terms of ongoing “peacekeeping” operations, such as those that occurred in the Balkans during the 1990s after the collapse of the Yugoslavian government, Congress also has the power to give or deny funds to such efforts. If Congress doesn’t want U.S. military personnel involved in a specific peacekeeping mission, then Congress can specifically block the Executive Branch from spending funds on that mission.

In terms of the relationship between the United States and the United Nations, the obligations of the U.S. are not entirely different than any other treaty-governed relationship that the U.S. may be obligated to.  The issues of sovereignty and compromise remain the same—and the relationship between the executive branch and the legislative branch in terms of the power to negotiate and the power to ratify are maintained.  But, as always, it remains left to the people to ensure that both branches protect the interests of the American people in the long term.

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

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

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

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

 

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New Deal and the Great Society: Warnings From America’s Founders on Constitutional Misconstruction

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Guest Essayist: Andrew Langer


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

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

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

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

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

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

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

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

In 1831, he also said, more plainly:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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United States Constitutional System and Armed Forces: Decentralized Power and Due Process vs. Stalin’s Centralized Control by Military

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Guest Essayist: Andrew Langer
Vinnytsia people searching for relatives among exhumed victims, 1937, a massacre during Stalin’s Great Purge or Great Terror.https://en.wikipedia.org/wiki/Vinnytsia_massacre#/media/File:Vinnycia16.jpg


In the previous essay, the Stalinist era of Soviet history was juxtaposed against the concerns of the Founders as discussed in the Federalist Papers. In this essay, that same era is examined within the context of the United States Constitution as adopted and ratified, and to look at the “failures” of the Stalin regime vis a vis America’s system of constitutional governance.

But it might be a mistake to call Stalin’s reign “a failure,” per se. Certainly, it was a failure insofar as the adherence to democracy or the protection of individual rights. One can also say that aspects of Soviet policy as compared to the revolutionary goals of improving the lives of “the people” were abject failures.

But in terms of doing what Stalin and his comrades were intending to do regarding creating a state in which power was concentrated in the hands of a few? They were brutally successful at that. In fact, it was only Stalin’s death in 1953 at the age of 74 that brought an end to his proximate reign, and it was the chaotic aftermath in the wake of Stalin’s death (and the power struggle that ensued) that brought some reforms to the Soviet Union. It wasn’t any greater adherence to some kind of principle of individual rights and limited government.

Keeping in mind that the Soviet Union did have a series of “constitutions”—including one in 1924 and another in 1936, as Stalin had truly consolidated his power. While these constitutions claimed to guarantee some measure of rights (as well as outlining a series of social and economic entitlement programs), they left intact other political machinations guaranteeing one-party rule and the concentration of power in the hands of very few.

In fact, it was after the passage of the Soviet Constitution of 1936 that some of the bloodiest, most-horrifying years of Stalin’s reign began. The so-called Great Purge not only swept up millions of innocents, it also swept up many of the architects of the 1936 Constitution itself!

Two of the most-basic differences between our constitutional system and the Soviet system are the adherence to basic concepts of due process rights, as well as the assurance of open debate and the protection of dissenting views. The denial of both within the Soviet Union allowed for the government to use the military and secret police to brutally repress conflicting views as well as killing and imprisoning millions more in both secret prisons as well as a system of forced-labor prisons known as the “Gulag.”

The head of the secret police under Stalin, Lavrentiy Beria, was noted for saying, “Show me the man and I’ll show you the crime.”

In other words, we don’t need due process or a rule of law. If we want to arrest someone or otherwise suppress dissent, we can simply make them disappear by accusing them of a crime, and because we don’t need to actually prove that crime, they can be taken away.

It is worth noting that two American socialist activists, John Reed and Emma Goldman, both of whom were eager supporters of the 1917 Revolution (and were attempting to bring similar revolutionary fervor to the United States), became privately disillusioned with the direction of the post-Soviet era under first Lenin and then Stalin—most notably because of the lack of democracy in practice and the suppression of dissent.

Under the American system, power is diffused, checked and balanced.  Under the Soviet system, especially under Stalin, power is concentrated—and the politics of the CPSU (Communist Party Soviet Union) ran through every element of daily life, with the Politburo (a central committee of the highest-ranking members of “The Party”) making policy and dictating that policy through the ranks of the Soviet bureaucracy.

Setting aside the secret police, at the time known as the NKVD (and later the KGB), the politics of communism (and adherence to party doctrine) also played a role in military command.

Under our system, the military is meant to be entirely free from the political machinery of our system—our military personnel are supposed to advance on their own merit, the military is an instrument of policy, and the guidance of that policy is balanced between the legislative and executive branches. The President is Commander-in-Chief, but only Congress can declare war, for instance.

During the Soviet era, not only was the military largely under the direction of the Premier (the Soviet leader, also known as the General Secretary) and the Politburo, but each individual unit was given a “political officer,” known as a “Zampolit,” who would ensure that Marxist-Leninist dogma was injected into military affairs, as well as recommend advancement or punishment for military members depending on their adherence to that dogma.

It is also worth noting that the abuse of power by the NKVD and the interference by the Politburo in military affairs led to Field Marshal Gregoriy Zhukov’s support of Nikita Khrushchev in his bid for power following Stalin’s death, since Zhukov was deeply concerned for what might happen should Beria, the head of the secret police, gain greater power under Stalin’s successor, Georgy Malenkov.

In the end, it is not only our Constitution, but the perspective in how we approach government and governance in the United States, that fundamentally sets us apart from any communist or socialist system—whether under Stalin or Krushchev or Brezhnev, or in Maoist China or Castro’s Cuba or North Korea led by a Kim.

We approach governance from the perspective that rights are naturally occurring in man and that power flows from the citizenry to the government, whose powers are carefully enumerated and tightly constrained. These other systems believe that government grants rights to their citizens, and that absent action by that citizenry, it is assumed that the government retains all power to act.

There were no checks on power in Stalin’s USSR—millions died or suffered as a result of it.

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

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

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

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

 

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From Liberty To Suppressed Dissent: Founders on Empowered Armed Forces While Preventing a Stalin-type Military Regime in America

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Guest Essayist: Andrew Langer
Interior, Gulag Museum in Moscow, used during the Great Purge under Joseph Stalin’s reign killing millions of innocents.


The reign of Joseph Stalin as the leader of the Soviet Union from 1922 until his death in 1953 made real just about every fear the Federalists and Anti-federalists discussed regarding concentrated power and government run amok during the debates over the adoption and ratification of the United States Constitution.

Through the entirety of the Federalist Papers, Alexander Hamilton, James Madison, and John Jay were constantly debating the balancing of interests, and the push/pull between a central government strong enough to both defend the nation of several states and address the common needs of those states, yet not so powerful as to run roughshod over the rights of those states and the residents therein.

Interestingly enough, the fact that our Founders were able to so openly debate the nature of the early American experiments in governance is completely alien to what occurred in the post-revolutionary transition from the formerly tsarist Russia into the Soviet Union first under Vladimir Lenin and then under Stalin.

Unlike the open debates of our Founders, and the reliance on the consensus-building governance of the American political system (built, as it was, on the examples of the liberalized British system), when the Tsar was overthrown and the soviet government established in Russia, the Bolsheviks immediately set-out to remove or otherwise neutralize opposition voices and consolidate power—and did so using a combination of military power and adopted post-tsarist secret police that could use force and intimidation to back-up any effort at domination.

So while Jay, Madison, and Hamilton could agree and disagree with one another in very public discussions, and the three of them could have ongoing conversations regarding the elements of the Constitution with their allies and opponents, Stalin’s system left it up to a handful of men to, literally, dictate the course of the Soviet Union in the years (and then decades) after the Russian Revolution of 1917—and then support their decisions with either direct military force or the force of their secret police, the NKVD.

The post-Revolution Bolsheviks had outlawed alternative political parties (even alternative factions of socialism, like the “Mensheviks,” the other dominant socialist viewpoint in during the 1917 Revolution), the dissemination of information was through the central government, and a vibrant system of “informing” on ones fellow Soviet citizens was created, in which people could be arrested upon the scant denouncing of their neighbors—or because the denounced said or did something that the central government did not like.

In Federalist 46, Hamilton summed up the general fear of constitutional skeptics in the late 18th century:

“The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition… That the people and the States should, for a sufficient period of time, elect an uninterupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism.”

Interestingly enough, Madison had answered his own question earlier in Federalist 46 when he wrote:

“The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter. But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted.”

But for a nation in which power is concentrated in the hands of very few, where dissent is suppressed beyond the point of imprisonment, and where that power is undergirded with both direct military force and the anxiety produced by the specter of secret police, there is no opportunity for “plans of resistance” or any concerted correspondence.

Worse, “dissent” could take many forms—and not even have to be proved, in order for punishment to be meted out. Stalin used his military to massacre civilians and put political pressure on Soviet republics and non-republic satellite states. And between Stalin and the head of the NKVD (the Secret Police), Lavrentiy Beria, millions more were simply “disappeared.” Beria is famous for the quote, “Show me the man and I’ll show you the crime,” a statement that will be discussed in the essay on Stalin and the protections guaranteed in the U.S. Constitution.

The Founders were rightly skeptical of what could happen when government power was not hemmed in by lawful constraints—and what happens when people are not able to debate and exercise true dissent. The warnings debated in the Federalist Papers were made manifest in the brutality of the Soviet Union’s Stalinist era and, frankly, through the oppressions of Nikita Khrushchev and Leonid Brezhnev, and other socialist leaders.

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

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

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

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

 

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Property Ownership and Political Stability: The U.S. Constitution’s Design to Secure Individual Rights the Communist Manifesto Abolishes

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Guest Essayist: Andrew Langer
Scene from the 1848 Revolution, German March, Berlin.https://en.wikipedia.org/wiki/The_Communist_Manifesto#/media/File:Ereignisblatt_aus_den_revolution%C3%A4ren_M%C3%A4rztagen_18.-19._M%C3%A4rz_1848_mit_einer_Barrikadenszene_aus_der_Breiten_Strasse,_Berlin_01.jpg


“[T]he theory of the Communists may be summed up in the single sentence: Abolition of private property.”  –The Communist Manifesto, Chapter 2

In addressing the inequities of 19th century European society, two German philosophers, Karl Marx and Friedrich Engels, building on the writings of ancient Greek philosophers in creating classless and egalitarian societies and the philosophies undergirding experimental communal living in the 19th century (inspired by philosophers like Charles Fourier), first articulated the political and economic system we now know as “communism” in their “Communist Manifesto.”

At the time of publication of the Communist Manifesto’s first edition (1847), there had been scant movement around the world toward liberal democracy (political systems that value liberty and the protection of individual rights for all citizens)—there had been our own revolution in the United States, liberalization in the United Kingdom, and a series of revolutions in France that had seen the nation swing from monarchy to republic to empire to monarchy, back and forth for decades.

As such, tremendous inequality remained among the populations of most European nations—and, perhaps not ironically, it was the year after the Communist Manifesto was first published, in 1848, that there was a series of revolutions in nations across Europe. In no uncertain terms, they cannot be characterized as communist revolutions, but much more in the vein of classical liberalism, rejecting monarchies and hierarchical societies for those that more highly valued individual rights.

Nonetheless, to the uninitiated, the ideas enshrined in the Communist Manifesto can be tremendously alluring—the idea of a society without classes, where all goods and property are owned in common, where the balance between work and life can be described as “from each according to his abilities, to each according to his needs,” a statement written by Marx in his 1875 work, “Critique of the Gotha Programme.”

The concept of abolishing private property is a pernicious enough sentiment. But coupled with the idea of the community picking and choosing what some individual’s abilities are as well as determining what that individual’s needs are, and you have a political and economic philosophy that, when put into action in a society, inevitably leads to both oppression and poverty.

Bound up in Marx’s 1875 statement is the essence of force and coercion.  Regardless of whether it is the “state” acting (and in Marxist philosophy, the state-centered transition phase between capitalism and communism is “socialism”), or the communistic society, you’re talking about force—the state determines what your “abilities” are, and you are forced to give of those abilities to society at large, regardless of your own feelings in the matter.

At the same time, the idea that the society then determines what your needs are, and that you’re unallowed to own property of your own, means that they can use the heavy hand of coercion to achieve their goals.

Moreover, the abolition of private property hamstrings the ability of a society to achieve economic prosperity and promotes political instability. Richard Pipes in his seminal work, “Property and Freedom,” looked at societies across history and, looking at how those societies protected private property, demonstrated the interrelationship between the protection of private property and the successful longevity of a nation. Peruvian economist and political scientist Hernando DeSoto, in “The Mystery of Capital” engages in something similar, but instead of looking through history, he looks at more recent examples around the world.

If you own your own private property, you can both use it to invest in some entrepreneurial idea, and you can utilize the property itself to support yourself and your family. Because you have a reliance on legal systems to protect that property, you can have hope in your future, and that hope creates that political stability.

The contrast is straightforward: if you don’t protect private property, if your society is centered on coercion and giving up your individual rights to the collective, this leads to oppression and economic stagnation. It is why just about every society founded on the principles outlined in the Communist Manifesto has failed, and others only remain because of brutal oppression or because they’ve adopted certain measures of state-sponsored capitalism.

Our own United States Constitution creates a classless society, starting with the idea that there is total equality among citizens. All of the rights (enumerated and unenumerated) apply to everyone, regardless of income level, race, etc. More importantly, it is predicated on the idea that those rights pre-exist the government, and aren’t bestowed by that government, that the Constitution itself is a restraint on government power and not the other way around.

Bound up in this is the 5th Amendment to the Constitution: “No person shall be deprived of life, liberty or property without due process of law… nor shall private property be taken for public use, without just compensation.”

This is a stark and fundamental departure from Marx and Engels—as opposed to abolishing private property, our Constitution makes it clear that government can only take private property from individuals provided that three things happen:

(1) The property is being taken for a legitimate public use.

(2) That due process is accorded to the property owner.

(3) That if 1 and 2 are adhered to, that “just” compensation is given to the property owner.

Setting aside instances in which these three tenets are abused by government, from a constitutional perspective, this is a clear departure from communist philosophy.

And it undergirds other rights as well. Keep in mind, the several constitutions of the Soviet Union, for instance, protected things like free speech. But since the constitutions of the USSR didn’t protect private property, that right was held cheaply since the state could just confiscate the presses of a critical press and threaten the journalists themselves if they didn’t adhere to the “party line.”

The same can be said of other individual rights: freedom of religion, freedom of assembly, the right to keep and bear arms. Besides outlawing most private gun ownership outright, the state could use their coercive powers to keep these other individual rights “in check.”

By guaranteeing rights, and recognizing that power flows from the people to their government and not the other way around, and that regardless of who you were all adults had the same rights, our Founders created the classless society Marx dreamed of. It was the flawed vision of Marx and Engels that failed, because they didn’t understand how their approach could be fundamentally abused and used to oppress, that spawned a nightmare.

Andrew Langer is President of the Institute for Liberty.

 

 

 

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The U.S. Constitution on Managing British Colonial Governance in North America and Careful Admission of New States to the Union

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Guest Essayist: Andrew Langer
Thirteen colonies in North America: political organization and location of individual colonies. Dark Red = New England Colonies. Bright Red = Middle Atlantic Colonies. Red-brown = Southern Colonies. Color indicated = area of today's states. Richard Zietzhttps://en.wikipedia.org/wiki/Thirteen_Colonies#/media/File:Thirteencolonies_politics_cropped.jpg


Prior to the drafting and ratification of the United States Constitution, our founders had nearly two hundred years of colonial governance from which to draw lessons regarding both the proper, and the improper, management of such territories, and the best way to add new lands to a governmental structure.

Among the threads that run through the Constitution, the assurance of fair and equal treatment of all citizens and the necessity of “due” process as a way to protect those citizens’ rights is repeated in a myriad of ways.

When it came to colonization and settlement, the founders could draw on the history of Great Britain’s management of the colonies (and, in many cases, their mismanagement) to ensure that the deficiencies in British governance could be corrected and their mistakes not repeated.

A central problem was consistency in the development of colonies and the application of British law. Colonial charters, the documentation actually allowing British subjects to establish colonies in North America, could be granted by the King (directly) or by the King’s officers, and they were granted to both corporate entities and groups of individuals.

But these charters could also be revoked, and most colonial charters were, at some point or another, revoked and reinstated by the Crown.

If Americans were going to settle the western portions of the recently-unionized states, they would have to be guaranteed, under the law, that the same kinds of arbitrary actions that plagued British colonial governance would not be continued by an American government.

Not all were even in agreement about such expansion (that became encompassed in the 19th century as the Monroe Doctrine. An Anti-federalist, writing under the name Brutus I in response to the Federalist papers written by James Madison, John Jay, and Alexander Hamilton under the pseudonym Publius, voiced deep concern about American empire building.

Jonathan Marshall, writing for Inquiry Magazine in 1980 (and republished in The Journal of Libertarian Studies) wrote:

“[T]he Antifederalist world view was profoundly shaped by their abhorrence of “empire”-that is to say, the rule of a vast territory by a strong, consolidated government. In rejecting the Federalist dream of a glorious American empire, they challenged the notion that the confederated states had to mimic European empires to safeguard their independence. Ultimately, the Antifederalists insisted, empire could be achieved only at the expense of their most cherished and hard-won prize: liberty.”

That skepticism is certainly shared when viewed in the context of another failure of British rule—the abandonment of the principle of “salutary neglect.” Discussed at length by one of the earliest historians of the American Revolution, Dr. David Ramsay (a revolutionary-era politician and physician), the concept is straightforward: the best way for a colony to prosper is for the parent nation to take a “light touch” in terms of direct governance, to let the colonists themselves make decisions and solve problems.

As the American colonies grew more powerful and determined to make decisions on their own, the British crown became more determined to bring them to heel. This only served to frustrate and anger the colonists, and eventually led them to declaring themselves free and independent states.

The Constitution addresses these concerns squarely—most clearly in Article IV, Section 3, more commonly known as the Admissions Clause.

The clause has two parts—the first, granting power to Congress to admit new states. The second, a restriction on that power, saying that Congress cannot create a new state by dividing the territory of an existing state or by joining two states together, without the consent of the legislatures of those states.

Both are essential to the practice of good governance. The people of the United States and potential states, i.e., territories know that there is one body with the power to admit states into the Union. It cannot be done or denied arbitrarily by a President, or the President’s bureaucratic functionary.

The second clause is almost more important than the first since it essentially prevents a state from being punished or the federal government otherwise abusing its powers by tearing apart states or forcing them to join with other states against their will. There has to be agreement from that state’s duly elected legislative representatives.

It is, essentially, another form of Due Process, protecting the rights of these citizens from arbitrary or capricious behavior on the part of the Federal Government.

Interestingly enough, though not outlined in the Constitution, the process for newly-settled lands to become states has largely been codified over time. Public lands are declared U.S. territory. Through a variety of means, the people in that territory vote to declare their intent to become a state, and then Congress passes an “enabling act” legislating that the territory becomes a state.

One aspect of this, for many of the states that entered after the middle of the 19th century, was to declare that all “unappropriated public lands” within those territories to be the property of the United States itself.  This was a way of “clearing title” to those lands for the purpose of encouraging further settlement (clear title, as the property rights scholars Hernando DeSoto and Richard Pipes have both written, is an essential element of strong protection of private property). It is also the reason why, as a percentage of a state’s territory, so much more land is owned by the federal government west of the Mississippi River (which has had huge implications for the balance of power between federal and state governments for the last half-century).

The British government had both successes and failures when it came to their management of the North American colonies. The authors of the Constitution learned from those mistakes and crafted clear language to safeguard against making them again.

Andrew Langer is President of the Institute for Liberty.

 

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U.S. Constitution’s Presidential Limits: The Framers’ Opposition To King Louis XIV “I Am the State” Monarchy Into Despotism

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Guest Essayist: Andrew Langer
Storming of the Bastille, 1789, French Revolutionhttps://en.wikipedia.org/wiki/French_Revolution#/media/File:Anonymous_-_Prise_de_la_Bastille.jpg


Though the words attributed to King Louis XIV are apocryphal (they don’t appear in print attributed to him until decades after his death), they present a chilling picture of the danger of absolute monarchy to individual freedom, and it should come as no surprise that the French had a revolution, and then a series of power struggles, starting at the end of the 18th century and for almost a century after.

In the wake of our own revolution, our founders, and then those who became the architects of our constitutional republic, were rightly worried about the descent from a free people into monarchy, and the further descent from monarch, to absolute monarch, to despotism.

As historian Arthur Schlesinger, Jr., wrote, “The power to do good meant also the power to do harm, the power to serve the republic also meant the power to demean and defile it,” and in the proximate sense of the founding, they had history from which they could draw. In 1974, Professor Raoul Berger wrote, “the Framers were steeped in English history; the shades of despotic kings and conniving ministers marched before them.”

But they could also look to the reign of King Louis XIV—his consolidation of power, his undermining of the potential for opposition, and his creation of a civil service corps personally loyal to him—to see the dangers of centralized executive power.

Law professor Jonathan Turley has written extensively about this, especially with regards to our present executive branch and its largely unaccountable administrative state, saying:

“The growing dominance of the federal government over the states has obscured more fundamental changes within the federal government itself: It is not just bigger, it is dangerously off kilter. Our carefully constructed system of checks and balances is being negated by the rise of a fourth branch, an administrative state of sprawling departments and agencies that govern with increasing autonomy and decreasing transparency.”

What Professor Turley is saying is that without adherence to the system of checks, balances, and a diffusion of sovereign power, this lack of transparency and increased autonomy is dangerous to individual rights.

In Federalist 68, 69 and 70, Alexander Hamilton further discusses the concerns (both real and imagined) with a strong governmental executive in making the case for the Constitution’s constraints against a President’s powers.  In Federalist 70, he invokes the ghosts of Imperial Rome:

“Every man the least conversant in Roman story, knows how often that republic was obliged to take refuge in the absolute power of a single man, under the formidable title of Dictator, as well against the intrigues of ambitious individuals who aspired to the tyranny, and the seditions of whole classes of the community whose conduct threatened the existence of all government, as against the invasions of external enemies who menaced the conquest and destruction of Rome.”

While Hamilton was referencing Rome, he could also have been talking about the excesses of the court of Louis XIV in France—and also warning against the converse, the dangers of a weak president.

The key was to weigh the powers of a reasonably strong executive, and executive branch, against the checking powers of the other two branches. This was the focus of both Federalist 68 and 69, in which Hamilton details how the President, as envisioned by the proposed Constitution, differs markedly from monarchs, and monarchies, of all kinds.

It starts with the simple—in Section 1 of Article II, the President’s term is limited to four years, and with the ratification of the Twenty-second Amendment in 1951, the President was limited to two terms in office.  So, unlike a king, a president’s time in power is limited.

Then, the engineering of a presidency balanced between strength and limitation gets more complicated. The President can appoint senior officials including cabinet members and Supreme Court justices, but these positions have to be confirmed by a vote of the Senate. So again, unlike a king, the President cannot merely pick individuals who are personally loyal to him—they have to be picks that will satisfy a majority of the members of the Senate as well.

The President is commander-in-chief of the United States Military. But the President cannot declare war; only Congress can. Yes, the President can engage in limited military action, if such a response is immediately necessary, but if this action is going to go more than several months, Congress must have its say. Congress also controls the budget. This is an enormous check both on the power of a President to wage war, and also on the President’s ability to engage in other policymaking.

Most importantly, unlike most monarchies absolute or otherwise, Congress has the power to remove a President from office via an impeachment for “high crimes and misdemeanors.” King Louis XIV expended a great deal of energy in working to ensure that his aristocracy could not undermine his regal powers and to make sure that France did not descend into civil war.

In America, the power of impeachment works to ensure that a President doesn’t abuse his office—either by abusing the rights of American citizens or by using his office for his personal enrichment.

The founders were deeply troubled by centralized power, especially the idea that an absolute monarch could become a tyrannical despot. While ensuring that a President could do his job, they created a constitutional system that checked the strong powers of the executive branch.

Andrew Langer is President of the Institute for Liberty.

 

 

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The Federalists on Diffusion of Power in American Government to Thwart Absolute Monarchy as Held by King Louis XIV

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Guest Essayist: Andrew Langer
1598 Edict of Nantes which granted extensive religious freedom.


In 1992, U.S. Supreme Court Justice, Sandra Day O’Connor, succinctly and eloquently summed up the essence of our federalist form of government:

“federalism secures to citizens the liberties that derive from the diffusion of sovereign power.” New York v. United States, 505 U. S. 144, 181 (1992)

Power is diffused among branches and levels of government, so that no one branch can become any more powerful than any other—and the architects of our government were purposeful in this construction.

They did so because they were inherently distrustful of overly centralized power, because they knew that power could be abused, especially the power of an executive, probably the greatest threat to individual liberty. Both Federalist 69 and Federalist 70 focus on the dangers of concentrated or overly powerful chief executives, and how that power ought to be reined in, and while Federalist 69 spends a tremendous amount of time focusing on the English monarchy (and Federalist 70 looks at Ancient Rome), the Federalist’s authors (Madison, Hamilton, and Jay) were well-aware of the recent history of France’s Bourbon monarchs, especially King Louis XIV, the self-proclaimed “Sun King.”

Louis XIV had been coronated when he was only 4, and while contemporaneous observations noted only a casual interest in ruling while he was a boy, when he assumed true personal rule of France in 1661 (following the death of Cardinal Mazarin, the king’s Chief Minister), he worked to ensure that his regal power was both consolidated and secure—building on the tutelage of his mother, Queen Anne, and having witnessed the chaos of a series of French civil wars (The Fronde) as a boy.

These civil wars were of deep concern to him—from both a standpoint of his personal safety and from the standpoint of ensuring his power.  Louis, in turn, began to enact a series of reforms to strengthen his role as an “absolute monarch.” While there was a legislature, and there were ministers, Louis served to create a royal civil service corps that were loyal to the crown itself, while at the same time making requirements of both the titled and military aristocracy that served to weaken their power over time.

By making the privileges of aristocracy dependent upon presence and participation at court, the king took both the political and military aristocrats away from their estates—placing them under direct scrutiny of the king and those closest to him, while frustrating any efforts that could undermine Louis’ hold on power (or present a military threat to him).

While it is apocryphal, given the concentration of power by the monarch, the king is reported to have said, “I am the state!”

It is interesting to note that all three of the Federalist’s authors viewed this concentration of power with deep skepticism, but for widely different reasons.

James Madison, one of Thomas Jefferson’s closest friends, shared Jefferson’s affinity for the French generally, but of the three authors of the Federalist essays was probably the most-skeptical of concentrated power from a political perspective, and would have seen the concentration of power as not just a threat to individual rights but also as politically unsound in the long term, something that was proven right decades after Louis XIV’s rule, when the French people revolted.

In contrast, Alexander Hamilton, the author of Federalists 69 and 70, believed in greater concentration of power in the federal government, as well as greater concentration of power in the executive branch. That being said, Hamilton was no fan of the French, and ultimately tried to start a war with the French, despite their assistance to America during the Revolution.

But it was John Jay whose antipathy toward the French monarchy was deeply personal—and who certainly had no love for King Louis XIV.

Jay was raised as a Huguenot, a French protestant sect. The Huguenots were persecuted for a very long time by the French government, until the 1598 Edict of Nantes granted them extensive religious freedom.

But in October 1685, King Louis XIV issued the Edict of Fontainebleu, which revoked the freedoms granted nearly a century earlier (Louis may have done this to placate the Catholic Church, whose political power he had also been trying to diffuse). Persecution of the Huguenots began anew, and John Jay’s great-grandfather sent his wife and children to England to avoid being targeted. As a result, Jay’s great-grandfather had his property confiscated, and he eventually joined his family in England.

When Jay was born in America, he was raised in Rye, New York, and educated in a French Huguenot church school in the next town, New Rochelle named for La Rochelle, a Huguenot center in France.

There is no doubt that his family’s experience colored his own views of the relationship between a central government and the rights of citizens, especially when it came to the freedom to worship and the right to enjoy private property. Interestingly enough, Hamilton, too, had at least one Huguenot ancestor, a grandfather, and this may have contributed toward his antipathy toward the French as well.

To be certain, whether based upon familial experience or an overall approach to political philosophy (and most likely a combination of the two), the authors of the Federalist saw that the political machinations and concentration of absolute monarchic power during the reign of King Louis XIV as something to not just avoid, but to actively work against.

Andrew Langer is President of the Institute for Liberty.

 

 

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The 1579 Netherlands Constitution and the Founders’ Vision for Careful Balance of Federal Powers While Protecting the States

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Guest Essayist: Andrew Langer
The Surrender of the City of Utrecht on June 30, 1672, to the French king Louis XIV, 1672, Centraal Museum Utrecht, Painting by Lambert de Hondt IIhttps://en.wikipedia.org/wiki/Utrecht#/media/File:Lambert_de_Hondt_(II)_-_The_Surrender_of_Utrecht.jpg


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Andrew Langer is President of the Institute for Liberty.

 

 

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How Greek and Roman Political Structures Informed the Architecture of the American Constitution and Government

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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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How the Flaws in Classical Governance Informed Debates Over the American Constitution

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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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Francis Lightfoot Lee of Virginia: Planter, House of Burgesses and Continental Congress Delegate, State Senator, and Declaration of Independence Signer

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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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May 7, 1964: President Lyndon B. Johnson’s Speech Launches Great Society of Government Expansion

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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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March 4, 1933: President Franklin D. Roosevelt is Inaugurated, Begins His “Hundred Days” of Government Expansion

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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)

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Public Lands and the Federal Government’s “Duty to Dispose”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Clearing Title: How Simple Legal Acts Have Great Societal Consequences

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Guest Essayist: Andrew Langer

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

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

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

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

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

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

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

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

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

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

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

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

Who will the bank give the loan to?

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

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

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

 

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

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

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The Essential Nature of Borders in Ensuring Sovereignty

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Guest Essayist: Andrew Langer

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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The Lands Forming Nevada as America’s Thirty-Sixth State at the Height of the Civil War

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Guest Essayist: Andrew Langer

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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 and the Tenth Amendment: The Buttress of Our Republic – Guest Essayist: Andrew Langer

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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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Separation Of Powers, Checks & Balances And Impeachment: Presidents Andrew Johnson, Richard Nixon, Bill Clinton

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Guest Essayist: Andrew Langer

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“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).

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Congress, Declarations Of War And Authorization Of Force, And War Powers Act

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Guest Essayist: Andrew Langer

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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.

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Federalism, The Senate, And The Constitution

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Guest Essayist: Andrew Langer

LISTEN ON SOUNDCLOUD:

“[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.

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Bill Of Rights: Placing Limits On Congressional Governing

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Guest Essayist: Andrew Langer

LISTEN ON SOUNDCLOUD:

“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

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Willson v. Black Bird Creek Marsh Company (1829)

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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.

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Green v. Biddle (1823)

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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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2004, George W. Bush Defeats John Kerry: Due Process, Terrorism, And The Constitution

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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)

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1980, Ronald Reagan Defeats Jimmy Carter, John Anderson: The Critique Of The Administrative State

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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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When Waters Aren’t Waters At All: Executive Branch Over-Reaching And Federal Land Use Controls (Part 2) – Guest Essayist: Andrew Langer

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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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When Waters Aren’t Waters At All: Executive Branch Over-Reaching And Federal Land Use Controls (Part 1) – Guest Essayist: Andrew Langer

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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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Operation Choke Point: Agencies Getting Around The Constitution’s Protections – Guest Essayist: Andrew Langer

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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 IRS’ Reach Into Political Speech – Guest Essayist: Andrew Langer

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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.

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The Wilmot Proviso

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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

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Speech on the Oregon Bill by Sen. John C. Calhoun, June 27, 1848

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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

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February 6, 1837 Speech on Abolition Petitions by Sen. John C. Calhoun

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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

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Listen to Janine Turner Interview Andrew Langer, President of the Institute for Liberty on the Janine Turner Radio Show – on Amendment I: Congress Shall make no law….abridging the freedom of speech

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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!

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Amendment I: Congress Shall make no law….abridging the freedom of speech

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

http://vimeo.com/37493542

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 

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Amendment XXVI of the United States Constitution

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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 http://www.instituteforliberty.org/

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Amendment XXI of the United States Constitution

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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 http://www.instituteforliberty.org/

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Amendment X of the United States Constitution

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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 http://www.instituteforliberty.org/

 

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Amendment V of the United States Constitution

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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 http://www.instituteforliberty.org/

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Article I, Section 03, Clause 3 of the United States Constitution

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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 http://www.instituteforliberty.org/

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Federalist No. 18 – The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union, For the Independent Journal (Hamilton & Madison)

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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

 

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Article II of the U.S. Constitution

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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

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