Essay 16: On The Federal Constitution – Volume 1 Part 1 Chapter 8 Sub Chapters 15-19

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Guest Essayist: Eric Wise

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On The Federal Constitution – Volume 1 Part 1 Chapter 8 Sub Chapters 15-19

“In the hands of seven federal judges rest ceaselessly the peace, the prosperity, the very existence of the Union. Without them, the Constitution is a dead letter…”

– Alexis De Tocqueville

 

The great observer of the American regime is Alexis De Tocqueville. An observer is most often distinct from a participant. De Tocqueville sees America from the outside.

But to say he sees America from the outside is insufficient. We are invited to ask from what vantage point of the outside does De Tocqueville observe.

It would be easy to conclude he observes from another great young democracy, France. After all, his subject, democracy in America, suggests that democracy is going on somewhere else.

Democracy in America was first published in 1835. This is the period of the July Monarchy in France, which began with the overthrow of one Bourbon monarch, Charles X, to replace him with another Bourbon monarch, Louis Phillipe. De Tocqueville could have accurately titled his book Democracy Today, given that democracy in America was at that time the only democracy game in town.

Why digress so? Because in reading De Tocqueville it helps to understand that, as astute an observer as he is, he is in fact an alien to the system in America. De Tocqueville truly knows only monarchy.

In this spirit he writes, “a federal government ought more than any other to desire to obtain the support of justice, because in its nature it is weaker, and one can more easily organize resistance against it.” Is this observation made because for an observer looking down from a monarchical perch, that is how the American system appears?

“In America, they have put this theory into practice. The Supreme Court of the United States is the sole, unique tribunal of the nation,” writes De Tocqueville. “Sole” reminds us of the root “mono”, which is one half the root of “monarchy”, which means rule of one. This idea foreshadows a potential corruption of the institutions of the United States, which we will get to later.

Let’s look at De Tocqueville’s perspective and then at the possible corruption.

De Tocqueville appreciates how the United States’ federal government and the United States’ state governments are both ground up institutions. That is, each part of the federal system represents delegations of sovereign authority from people to the government. The people of each state lend certain aspects of their sovereignty to the state governments, and the people of the United States lend their sovereignty collectively to the United States.

As De Tocqueville wrote, “The first question which awaited the Americans … was so to divide the authority of the different States…, whilst the entire nation, represented by the Union, should continue to form a compact body, and to provide for the general exigencies of the people.”

This sense of the sovereignty of individuals, which is the basis of consent in America, is bred in the bone. Perhaps the first instance of this practice occurs in Connecticut through the adoption of the Fundamental Orders of Connecticut without any reference to royal authority. As Thomas Hooker, a leading Puritan minister in New England, had said in 1638, well before Hobbes and Locke wrote any jot or tittle on the subject, “The foundation of authority is laid firstly in the free consent of the people.”

That ethos as reflected in the United States Constitution leads to dual sovereignties that are derivative of the sovereignty and consent of the people. With that dual sovereignty comes dual judicial systems, one state and one federal. And while De Tocqueville makes no mention of Puritans such as Hooker, he appears to understand this.

Thus De Tocqueville observes with interest that “It may easily be proved that the Union could not adapt the judicial power of the States….to enforce the laws of the Union by means of the tribunals of the States would be to allow not only foreign but partial judges to preside over the nation.”

But I venture an American of De Tocqueville’s time would have seen this procedurally requirement slightly differently, as they would not have admitted the possibility of a sole power precisely because there cannot be two sole powers, of course. If the sole power of the American regime is the consent of the people, then there is no room for judicial supremacy. De Tocqueville, one dares say, may have mistaken, ever so slightly, or as a modern man might say, subconsciously, the power of the Supreme Court with the power of a king.

This brings us to corruption. At the time De Tocqueville was writing the United States was experiencing a drought of new amendments to the Constitution, new affirmative and formal acts of consent, that began in 1804 and would not end until after the Civil War with the 13th Amendment. To fill the gap, the Supreme Court, after De Tocqueville, handed down the Dred Scott decision to settle once and for all a regime question that could only be resolved through the consent process. Justice Taney, the author of Dred Scott, assured a credulous President James Buchanan that the regime question of popular sovereignty set forth in his Dred Scott opinion, would put to rest the political instability over slavery that troubled the regime. Taney could scarcely have been more wrong.

Today we suffer from a similar drought of amendments, the last fully consummated and unified process for the 26th Amendment having been completed in 1971 (the 27th Amendment having been a drawn-out event that began as the Congressional Compensation Act of 1789). De Tocqueville might see the change as an example of the power of the Supreme Court analogous to a monarch. But from the perspective of an American participant it is hard to unsee it as the ebb of the true sole power in America, the people, which ought to be restored through a process like a convention of states, where the people of the United States might take on regime questions after the manner of the Founders, and in the manner the Founders intended, as reflected in Article V.

 

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

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Principle of Representative Government Only Under Authority of the American People

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

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

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Founding Tradition of U.S. Armed Forces Protecting Liberty and Prosperity vs. Joseph Stalin’s Military Regime

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Guest Essayist: J. Eric Wise
Joseph Stalin in 1920.https://en.wikipedia.org/wiki/Joseph_Stalin#/media/File:Stalin_1920-1.jpg


The Red Army from the time of its formation through its incarnation as the Soviet Army and to the time of its collapse was forever fighting wars. From 1917 to 1922 the Red Army fought numerous civil wars for Soviet dominance of Russia, as well as the Polish-Soviet War to mop up the residual Polish state following the First World War.

But by 1922, the Soviet communists realized that a large army taxed the ambitions of the new Soviet state and so reduced the Red Army to a standing army of 800,000.

Leader of the Soviet Union, Joseph Stalin, would take this small army and build it to a strength of 29 million at the end of the Second World War. This massive army would after the Second World War become the Soviet Army which would be reduced to a leaner 11 million man army.

As the burden of maintaining a large land army grew, the Soviet Army shrunk to between 2.8 and 5.3 million. The final collapse of the Soviet Union occurred when the cost to the people of the Soviet Union of maintaining and equipping this army left them without consumer goods and in some cases necessities.

What is the key lesson of Stalin’s expansion of the military?

The first lesson, one supposes, is that war is not merely an instrument of the state but an instrument of the military. Stalin’s Soviet Union was perpetually at war. The Red Army battled Ukrainian insurgents, and was involved in the Spanish Civil War, the war in China, and fought with Japan. Before joining the Allies in the Second World War, the Soviet Army invaded Poland, partitioning it with Germany, and invaded Finland, with worse than mixed results. By the time of the German invasion of Operation Barbarossa, the Red Army was 6,000,000 men or more of whom a majority of whom were captured or killed by the invading army. The Red Army and then the Soviet Army served as a base of power for Soviet tyranny. And war was a means for the Red Army and the Soviet Army to demonstrate their importance to tyrannical power.

What can we as Americans learn from it?

Following the First World War, the United States promptly de-mobilized. The material prepared for war was scrapped and the United States Army was quickly reduced to a small corps of officers and enlisted men around which a larger army of citizen soldiers could later be built.

When the Second World War arrived, on December 7, 1941, the United States Armed forces numbered about 1.8 million. Four years later, in at the end of the war in 1945, the United States armed forces numbered approximately 12 million.

Following the Second World War, the United States armed forces were again demobilized, and by 1950 the core strength of the United States Army was about 600,000 men. With mobilization for the Korean War and the Vietnam War the armed forces of the United States numbered between 2.6 and 3.5 million. And following the Cold War the United States armed forces came down in strength to about 1.5 million men, the level it has remained for almost three decades.

President Dwight Eisenhower warned in his farewell address of a growing “Military-Industrial Complex” which threatened the liberties and prosperity of Americans. He meant that the military and the industries that supplied it had become their own interest group in American politics. The military and the industries supporting it promoted policies, and yes, wars, which served the interest of the military and the interests of power.

Abraham Lincoln, in his Lyceum Address, noted that “We find ourselves in the peaceful possession, of the fairest portion of the earth, as regards extent of territory…” He meant, among other things, that the United States is blessed to have a territory protected by two oceans and to have very little in the way of neighboring military threats.

It was this territorial advantage, as was noted in Federalist 29, which allowed the United States unlike European powers, to dispense with standing armies.

It is important to take pride in the patriots that serve our country in uniform. It is equally important to not conflate that pride with an empty nationalism that needlessly feeds a large military, a lesson Joseph Stalin teaches us.

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

 

 

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Ou La Mort or Deliberation: The French Revolution and the American Revolution

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Guest Essayist: J. Eric Wise
George Washington enters NY City at British evacuation, Nov. 1783 after American Rev. War.https://en.wikipedia.org/wiki/American_Revolutionary_War#/media/File:Evacuation_Day_and_Washington's_Triumphal_Entry.jpg


The motto of the French Republic is Liberté, égalité, fraternité, meaning liberty, equality, brotherhood.

What’s not to like?  Pass the baguettes and butter.

It is derived from the motto of the French Revolution, which has a little something extra: Liberté, égalité, fraternité ou la mort.

Now, wait a minute.  That means liberty, equality, brotherhood or death.

The French Revolution distinguished itself in the final category of its motto. No sooner had the First Republic been created than an eruption of accusations of treason, anticlerical sentiment, massacres and public executions took place. Not satisfied to overturn the ruling caste that had governed from Versailles, and the chateaus and churches of France, the revolutionaries set about to kill them.

In France 1793, no less than 16,000 death sentences were handed down, and 10,000 were sent to prison to die there, in most cases without a trial. Ou la Mort became the Terror. Little explanation is needed as to why “ou la mort” is now gone from the national motto.

The United States took a very different path. That is not to say there were not hard feelings. When the fighting ended and the American Revolutionary War came to a close in 1783, some 70,000 loyalists were expatriated to Britain and the remaining North American British colonies in places like coastal Quebec Prince Edward Island, and Nova Scotia.  But they were not killed.

They were not even really persecuted. Always hungry for people, as soon as the loyalists left, the United States made efforts to recruit them back, supposing their industry and connections, harnessed in a spirit of reconciliation, could aid the new nation in finding its feet.

So, we ask ourselves, what was the difference between the French Revolution and the American Revolution that one should culminate in a river of blood and another in practical reconciliation and a compact, the United States Constitution, which has remained the charter of the new nation for 250 years?

The first place to look is the Declaration of Independence. The principles of the Declaration had percolated in American thought for 100 years or more before their expression in that revolutionary document.  As Calvin Coolidge noted in his famous July 4 speech,

“A very positive echo of what the Dutch had done in 1581, and what the English were preparing to do, appears in the assertion of the Rev. Thomas Hooker, of Connecticut, as early as 1638, when he said in a sermon before the General Court that—‘The foundation of authority is laid in the free consent of the people.’ ‘The choice of public magistrates belongs unto the people by God’s own allowance.’”

The American Revolution was rooted not in deduction from mere abstract principle but by a process of induction from a practice spanning several generations. No understanding of the principles of equality and rights to life, liberty and the pursuit of happiness could be easily twisted into a murderous rage as would happen in France.

We see this in the words of Federalist #1:

“It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.”

The meaning of the abstract principles of the Declaration of Independence was universally understood to impose a requirement of deliberation, not execution of enemies, on the new government. It was so understood because that was the habit of the American people to think of it that way. They would no sooner leave the house without their pants than think to solve a political problem other than by organizing, deliberating and deciding by some method of majority rule.

The new Constitution which was to be adopted constituted a second appeal to necessity. The Articles of Confederation had been, truly, an abject failure. The country was unable to control debtor and creditor contests and its economy was moribund, a victim of both the violence of these disputes and the weakness of its central government.

However, the new nation chose not to turn upon itself and its various perceived internal enemies but to debate over a new Constitution, to be ratified by consent through a new ratification process, that was not contemplated by the Articles of Confederation, and in fact violated its express terms. In Federalist #40, Publius emphasizes the need to alter and abolish the dysfunctional government by a process of consent rather than force.

From this spirit, a new government was brought forth based on the notion of deliberation and consent, structured around mechanisms to harness the baser incentives of men to promote the habits of deliberative government.

When Benjamin Franklin identified the new form as “a republic, if you can keep it” he implied that the continual fostering and renewal of the habits of deliberative government was the spirit of the American Revolution and the essential ingredient for the continued success of the United States.

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

 

 

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From a Declaration of Independence to a Constitution: The Laws of Nature and Preservation of the United States of America

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Guest Essayist: J. Eric Wise
Writing the Declaration of Independence, 1776. Benjamin Franklin, John Adams, and Thomas Jefferson working on the Declaration, a painting by Jean Leon Gerome Ferris, 1900https://en.wikipedia.org/wiki/United_States_Declaration_of_Independence#/media/File:Writing_the_Declaration_of_Independence_1776_cph.3g09904.jpg


Everything comes back to the Declaration of Independence. In a way, the seeds of the Federalist Anti-federalist dispute in the framing of the Constitution were sown in the Declaration.

The Declaration of Independence established the basis of just government as consent as against the divine right of kings. To quote Thomas Jefferson, “the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them.”

Consent leads to forms of majority rule, although it must be a reasonable and restrained majority which respects the rights of the minority. Consent requires some kind of deliberation for the sake of forming consensus, and public deliberation over a proposed charter leads to disputes for and against.

But that is not the sole connection. The Declaration of Independence establishes a right of revolution. Whenever a government becomes abusive of the ends of just government it is the right of the people to alter or abolish it. Revolution is an extra-legal right. The oppressions of King George – “[a] Prince whose character is thus marked by every act which may define a Tyrant” – entitled the colonists to rebel, illegally.

The Declaration of Independence – a “unanimous Declaration of thirteen united States of America” – also stated that “That these United Colonies are, and of Right ought to be Free and Independent States.”  A new nation was born that was having a hard time saying clearly whether it was one nation or many. Babes lisp, and so it was with the young United States.

The first charter of the United States was entitled the Articles of Confederation and Perpetual Union. Confederation comes from the Latin con meaning “with or together” and foederare meaning treaty or league. Again, the early babble of United States suffered some polysemy. It was a union that was perpetual but also a treaty of several states.

The Articles of Confederation, as a practical matter, were inadequate. Among other things, the new government was unable to enforce its laws directly and the scope of its powers was narrow, particularly in commercial and financial matters. The result was a chaos of creditor-debtor disputes and a moribund economy that began to threaten the viability of the United States. Both France and Britain anticipated the collapse of the new United States, and were eager to pick up the pieces.

A convention was called in 1787 to repair the defects of the Articles.  The convention produced a proposal for an entirely new charter, the Constitution, to replace the Articles. The Constitution would have many new features, including drawing its authority directly from the people rather than a compact of states, exclusive coinage and bankruptcy power, and a radically new executive power embodied in a president of the United States. It also proposed that it would be deemed adopted when ratified by only nine states.

This last proposal flatly contradicted the Articles. The Articles required a unanimous vote of its member states for amendment. Like the revolution the proposal for a new Constitution, though an appeal to ballots and not bullets, was illegal.

The ground for the adoption of the Constitution was similar to that of the Revolution, an appeal to the “necessity” and (echoing the Declaration) the “law of nature and nature’s God.” The Articles were incompetent and had to be “thrown off” to for the “preservation” the country. Federalist 43.

In politics it is important to pick the name of your movement.  If you do not, your political adversaries will pick it for you. The proponents of the new Constitution, led by Alexander Hamilton, James Madison and John Jay, took the name Federalist. Opposition to the new Constitution was labeled Anti-federalist, locking in rhetorical disadvantage.

Anti-federalists argued with some alarm that the new Constitution permitted the national government to resort to force. Federalists argued that the states were protected from invasion by the Federal power by their militias and from domestic insurrection or invasion by the new federal government. Federalist 28.

The Anti-federalists argued that the confederal form should have been preserved. The Federalists argued that the proposed government was “partly federal and partly national.” Federalist 39.

Anti-federalists argued that the convention did not have the authority to adopt the Constitution. The Federalists argued that the new Constitution was “necessary.” Federalist 40.

Anti-federalists argued that the proposed Constitution was too difficult to amend, and that it should be amended whenever a department of the government exceeds its authority. Federalists rebutted that frequent appeals to the people would undermine the authority and reasonableness of the new government. Federalist 49.

Anti-federalist argued that the judiciary was too independent.  Federalists argued that the new Constitution’s judiciary was its least dangerous branch, and that unconstitutional judicial decisions could be ignored. Federalist 78.

The Federalists prevailed, but experience has at times exposed weaknesses in the Federalist’s arguments. The federal government has overtime supplanted the states in their power. Appeals to the people to amend their Constitution have not just become infrequent, but have ceased almost altogether: The Constitution has not been amended “soup to nuts” in more than 50 years. And this has happened as the judicial power has expanded under the doctrine of a “living constitution” to displace the amendment function; this raises the question whether the Constitution can continue to be the people’s document if the courts, and not they, are its author in key respects.

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

 

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William Williams of Connecticut: Signer of the Declaration of Independence, Pinch Hitting for the United States of America

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Essay 44 - Guest Essayist: Eric Wise
Public Domain Image https://en.wikipedia.org/wiki/William_Williams_(Connecticut_politician)#/media/File:William_Williams_(delegate).jpg "William Williams of Connecticut: Signer of the Declaration of Independence, Pinch Hitting for the United States of America – Guest Essayist: J. Eric Wise"

Rick Miller, playing for Boston Red Sox, holds the 1983 American League record for the highest batting average in a season by a pinch hitter at .45714. Miller, however, is not New England’s greatest pinch hitter.

That title goes to a signer of the Declaration of Independence, the redundantly, patronymically named William Williams. Williams, a successful soldier and merchant of Lebanon, Connecticut, was elected to represent Connecticut on July 11, 1776, seven days after the Continental Congress voted to approve the Declaration of Independence.

Oliver Wolcott had cast the vote on behalf of Connecticut, and Williams’ turn at bat came because the Declaration of Independence, although adopted on July 4, 1776, had to be prepared by clerks and circulated by messenger for signature later. The original Declaration of Independence thus bears William Williams’ name in addition to Oliver Wolcott’s.

Williams came from a good state. Connecticut is known as the Constitution State, and it gets that name due to the “plebesbyterian” genius of the early Puritans. Thomas Hooker, a Puritan contemporary of John Winthrop, Roger Williams, and John Cotton, led the adoption in 1639 of the Fundamental Orders of Connecticut in Hartford as a charter for the Connecticut River towns. The Fundamental Orders were the first charter government that did not refer to the authority of the King of England, but rather to the authority of God through the people.

As Hooker put it – fifty years before John Locke penned his Second Treatise on Government in 1689 – “the foundation of authority is laid, firstly in the free consent of the people … the choice of public magistrates belongs unto the people by God’s own allowance.”

Thus, the Fundamental Orders of Connecticut, animated by Hooker’s thought, anticipated by more than one hundred years the Declaration of Independence, which of course draws its authority from the laws of Nature and Nature’s God, the principle of equality, and the consent of the governed.

Williams came from a good family too, and married into an even better one. Williams was educated at Harvard, graduating in 1751 at age 20.  In 1755, Williams volunteered for the militia in the French and Indian War, and served in the Lake George area. Following the war, Williams spent his time in trade and government, rose to prominence, and in 1771, at the age of 40, married 25-year-old Mary Trumbull.

Mary was the daughter of Jonathan Trumbull, also a graduate of Harvard and Governor of Connecticut by royal appointment of the King of England. It is hard to imagine a better-connected New Englander than William Williams of 1771.

The signers of the Declaration of Independence all pledged “our lives, our fortunes and our sacred Honor” to the success of the Revolution. Many paid dearly with the first two, though all in time gained honor. Williams, when he signed the Declaration, had achieved a great deal as a pre-Revolutionary American and had much at stake.

Williams had built and continued to build a record of daring for an established man. He was a member of the Sons of Liberty, a society which fought for the rights of Americans and against British taxation, until it was outlawed by the Stamp Act in 1765. Forced underground, the Sons of Liberty popularized the practice of tarring and feathering for the punishment of officials and loyalists, and were sponsors of the Boston Tea Party.

In 1774, Williams published a pseudonymous letter to the King of England from America, on the subject of the Coercive Act. Williams’ need for a pseudonym is a reminder that a telltale symptom of tyranny is the suppression of speech. In any event, Williams had crossed a line in his letter, accusing the King of England of the most wicked intentions to oppress the American people.

There was never a doubt then, when William Williams got his turn at bat, he would swing for the fences.

William Williams, pinch hitter and American hero, died in Lebanon Connecticut on August 2, 1811.

Eric Wise is an attorney practicing in New York.

 

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Battle for Power Between the National Government and the States

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Guest Essayist: J. Eric Wise

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How to Keep the Founders’ Intentions for “We the People” Who Are in Charge of Their Own Governing

The first mention of the United States in an official document is found in the Declaration of Independence. The thirteen colonies that declared their separation from England became thirteen “free and independent States.”

As a practical matter, these states were always united, if perhaps at first only in war against the British. By 1781, these united states had entered into The Articles of Confederation and Perpetual Union, commonly called the Articles. The Articles provided that “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.”

But the powers delegated to the United States in Congress were not insubstantial. Under the Articles, the power over foreign policy and the laying of imposts and duties, and responsibility for determining war and peace, resided in the national government. In time, however, the inability of the Articles to deal with a failing economy and serious governance problems led to the calling of a constitutional convention.

The Articles provided that the compact could be altered only with the consent of Congress and confirmation “by the legislatures of every State.” The impracticality of this rule led to the proposal that the new Constitution be effective, with respect to ratifying states only, when ratified by conventions held in just nine states. The new Constitution thus was never approved by the unanimous mechanism described in the Articles. The rights of states embodied in the provisions requiring unanimity were cast aside for the sake of “The public interest, the necessity of the case, imposed upon them the task of overleaping their constitutional [under the Articles] limits.”  Federalist 38. 

The Constitution established a new relationship among the states. No longer were the states held together in perpetual union as a compact of states; rather  “We the People of the United States” formed a government directly as a compact of a people. A confederation of independent states no more, the government was to be –

“partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.” Federalist 39.

Almost immediately following ratification of the Constitution, the nation adopted the Bill of Rights as the first ten amendments to the Constitution. The Tenth Amendment to the Constitution provided that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” As the powers delegated to the United States were listed in the enumerated powers of Article I and related largely to defense, interstate and international commerce, coinage, bankruptcy, and citizenship, the Constitution left to the states “police powers” to look after the health, safety and welfare of the people of the United States.

The dispersal of these very important police powers concerned more than the simple preservation of the status quo in place under the Articles of Confederation. The dispersal of police power had an important philosophic idea underlying it, based on the nature of human society. A republic, in which the people govern themselves, requires a body of people closely familiar with one another. With a smaller territory, the people of a republic could be familiar with and attached to the customs and habits of the people, and make sound policies and laws suited to their way of life and economic livelihood.

Indeed, opponents of the Constitution had cited “Montesquieu on the necessity of a contracted territory for a republican government.” Federalist 9. A large territory, Montesquieu had supposed, encouraged a monarchy, as monarchies were more adept at communications over distance and operate on principles that do not require thorough familiarity with the governed (rather they require familiarity with a small body of subordinate princes). The Constitution resolved these issues by creating a federal republic, where local rule prevailed in areas touching the daily lives of the people.

The power of the states to make different policies and laws suited to their way of life and industry had what one might call a beneficial “knock-on effect.” James Madison observed that the federal republic would take in a large number of different interests – obviously in no small part on account of the independent police powers of the states to shape the citizenry – which would have the effect at the national level of cancelling out narrow selfish interests. He wrote:

“Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other.” Federalist 10.

In the Twenty-First Century, this model has been partly abandoned. Not only has American society adopted practices that homogenize its culture, such as national television, newspapers, radio, and a largely uniform way of higher education – universities are homogenized by, among other things, the competition for national rankings prepared by U.S. News and World Report – the national government has also increasingly absorbed the traditional police powers of the states through expansive readings of the commerce clause and of “substantive due process,” circumscribing the role states play in shaping the character of their citizens through policies and laws.

In today’s climate of identity politics, the resulting uniformity of laws and culture may not seem like a threat. But consider perhaps that a uniform national culture – identity politics itself – may already exist and that a common national motive for a majority to invade the rights of a minority may be gathering. In this light, it may be time for states to once again jealously protect their rights and to exercise with renewed vitality their police powers to shape diverse interests for the common benefit of the United States.

Eric Wise is an attorney practicing in New York.

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City Leadership: Two Case Studies

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Guest Essayist: J. Eric Wise

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According to Aristotle, “the first society to be formed is the village. And the most natural form of the village appears to be that of a colony from the family…” The town of my childhood, Detroit, was a colony founded by the French in 1701. One of my forebears by the name of Parent was among the first of 40 families to settle there in 1707. My grandmother, Blanche Parent Wise, was also the first – and last – Republican woman to sit on the Detroit city council from 1952 to 1960. Greenwich, Connecticut, where I live today, began as a colony founded in 1640 by a group of Englishmen that included daughter-in-law of John Winthrop, the founder of the Massachusetts Bay Colony and author of the famous “city on a hill” sermon.

While the Town of Greenwich, population 61,000, is old, its modern charter arrived in 1975. The charter is filled with provisions for budgets, elections, flood control, health, home rule, ordinances, parks and recreation, zoning, parking, public works, sewers, a board of estimation and taxes, a town council, selectmen (think mayors and deputy mayors), and a town clerk. 

As this litany of charter provisions shows, a town or city touches almost every aspect of the daily life of its people. Whether you are driving on a road, visiting a park, waving to a policeman directing traffic, taking in the bustle of your local commercial district, or simply parking your car, you are working with your city government and your city government is working for you.

A city government is always busy making a great many households into one community, into its own little “city on a hill” as John Winthrop would have said. A city government not only must do all these things – imagine a world without police or firemen, or in the case of Greenwich, public beaches! – it must also pay for them.

Thus the first article of the charter of the Town of Greenwich provides for the Board of Estimate and Taxation (or BET), which is responsible for the “proper administration for the financial affairs of the town.” The BET consists of 12 members elected at large, who serve without pay for a term of two years. The Town of Greenwich may not borrow without the approval of the BET.

The AAA rated Town of Greenwich has a highly successful financial record. The Town of Greenwich 2019-2020 Budget reflects operating costs of $389,620,369 (about $6,400 per capita), authorized general debt of $39,981,000 and authorized sewer debt of $7,250,000 (altogether about $800 per capita). The debt represents general obligations of the Town of Greenwich backed by its “full faith and credit.” This means the Town of Greenwich has made a commitment to use its future taxing power to pay for bonds issued to meet current expenditures.

In the Town of Greenwich, executive power is held by the First Selectman. All administrative functions – police, fire, highways, sewers and other public works, building inspection, parks, recreation, law, human resources, parking services, fleet management, information technology and purchasing for such purposes, fall under the direct supervision and control of the First Selectman. A Board of Selectmen consisting of the First Selectman and two other Selectmen appoints the various heads of department on the recommendation of the First Selectman.

But there are important duties of a First Selectman that are not found in the charter. Fred Camillo, a Republican candidate for First Selectman in the Town of Greenwich, when asked about the responsibilities of a First Selectman, said “The First Selectman is the voice and face of the town, and is the person who sees to it that the public welfare is protected, its finances secure, with its future road map charted.”

Camillo, who currently represents the 151st District of Connecticut in the Capitol in Hartford, added, “The First Selectman also has to keep an eye on Hartford, and have a solid working relationship with the governor and a good rapport with the various state departments and agencies as well as legislature.”

In addition to an executive, the Town of Greenwich has a deliberative body called the Representative Town Meeting, or RTM for short. Like a city council, the RTM exercises the ordinance making powers on behalf of the people of Greenwich. A highly democratic body, the RTM consists of over 200 members, and meets regularly to conduct town business.

In addition to the First Selectman and the Board of Estimate and Taxation, the Town of Greenwich elects two Selectmen, five members of the Board of Tax Review, a Tax Collector, seven Constables.

Not to be forgotten are the volunteers. According to Camillo, “Volunteers are extremely important. They reduce the tax burden and foster a spirit of pride, which is very helpful.  Greenwich is unique in that people take their civic duty seriously. In fact, the civic involvement is second to none. I travel all over the state, and I have never seen the level of civic involvement that I have seen in Greenwich. As long as I can remember, it has always been there.”

This apparatus of leaders, departments, appointees, employees, and volunteers works to deliver the essential services needed for living well. It requires the hard work and dedication of a great body of people, many of whom perform their jobs for no compensation, out of a sense that a town is a kind of family.

When city government does not work, when a town ceases to be a family, the results can be catastrophic. In 2013, Detroit, once one of the largest and wealthiest cities in the United States, filed for bankruptcy. More than ten times the size of the Town of Greenwich, Detroit had saddled itself with more than 400 times the debt. Years of overtaxing and underservicing had driven the population down to less than half of its peak. Detroit had gone from being a “city on a hill” to a city in a very deep hole. Just how deep? A suspension of representative government occurred in Detroit; an unelected Emergency Manager took over power to operate the city as the city marched into a Chapter 9 bankruptcy.

Eric Wise is an attorney practicing in New York.

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Sturges v. Crowninshield (1819) and Ogden v. Saunders (1827)

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Guest Essayist: J. Eric Wise

Bankruptcy Power – Sturges v. Crowninshield, 17 U.S. 122 (1819) and Ogden v. Saunders, 25 U.S. 213 (1827)

Shortly after the first person mixed her labor with a thing and called it “mine,” some person furnished property to another, together with an obligation to return it. With that, the problems of debtor and creditor were born.

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1860, Abraham Lincoln’s Understanding Of The Constitution, Part 1: Its Relation To The Declaration Of Independence

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Guest Essayist: J. Eric Wise

 

“One would start with great confidence that he could convince any sane child that the simpler propositions of Euclid are true; but, nevertheless, he would fail, utterly, with one who should deny the definitions and axioms. The principles of Jefferson are the definitions and axioms of free society.”
– Abraham Lincoln, Letter to Henry L. Pierce in 1859

Euclid’s geometry begins with five postulates or axioms (e.g., the first postulate, a straight line may be drawn between any two points) that cannot be demonstrated from other principles. The axioms to which Lincoln refers are, of course, the “self-evident” propositions in the Declaration of Independence that all men are created and equal and entitled to inalienable rights. Just as a right triangle cannot be comprehended if the first postulate of Euclid is denied, to Lincoln’s understanding a free society cannot be constructed if Jefferson’s postulates of equality and inalienable right are denied.

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Essay #87 – Remarks at the University of Michigan by Lyndon B. Johnson

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Guest Essayist: J. Eric Wise, Partner at Gibson Dunn & Crutcher LLP, New York City

The Great Society Speech

President Lyndon Johnson delivered the Great Society speech at the University of Michigan in May of 1964. Superficially, the Great Society speech is a typical modern speech, an agenda of platitudinous and pragmatic goals. More deeply, the Great Society speech represents a dramatic rhetorical reorientation of the United States.

Ambitious American political speeches invoke the founding. And the Great Society Speech is no exception, alluding to the Declaration of Independence. The Declaration of Independence sets forth both the basis Read more

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Amendment XIV – The 14th Amendment’s Impact on the Constitution

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Guest Essayist: J. Eric Wise, a partner in the law firm of Gibson, Dunn & Crutcher LLP

Amendment XIV:

1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

2: Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

3: No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

4: The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

5: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

After the Civil War came the Reconstruction Amendments.  Thinking about the Civil War leads to thinking about the compromises in the Constitution over slavery, which in turn leads to thinking about the Declaration of Independence.  The Declaration embodied the principles that were compromised, “the proposition that all men are created equal.”  The Reconstruction Amendments in a sense constitutionalize the promise of the Declaration and represent a “new birth of freedom,” eliminating the compromises in the Constitution over slavery.  While the 13th Amendment prohibits de jure slavery and the 15th Amendment secures voting rights, the 14th Amendment is as a guaranty against de facto slavery.

The Constitution of 1789 contained a few key limits on state action.  No state could enter into treaties, coin money, pass bills of attainder or ex post facto laws, impair contracts or confer nobility, impose tariffs, conduct foreign policy or make war.  Citizens of each state were entitled to the privileges and immunities of citizens in the several states, but states had the power to determine who was a citizen.  Every state was guaranteed a Republican form of government.

States could make laws with respect to almost any other subject matter, and enforce them as they saw fit, subject only to the state constitution.  The states had broad latitude to shape their laws, to determine issues with respect to fairness and rights, and therewith shape the habits – the virtues and vices – of their peoples.  This latitude included, by intention, the power to impose and protect slavery (and by extension other social and political perversions, short of monarchical government).  The 14th Amendment fundamentally changed this.

Section 1 of the 14th Amendment reads:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The citizenship clause extinguished the ante bellum issues created by Dred Scott v. Sanford (1854) on questions of citizenship.  The privileges and immunities clause placed alien and resident persons in a state on equal footing.  The due process clause guaranteed fair procedure in an actions under state law. The equal protection clause provided for federal oversight as to the equal application of laws to persons within each state.  Additionally section 2 of the 14th Amendment eliminated the three-fifths compromise provisions regarding apportionment of representatives.

As a federal guaranty of certain rights, the 14th Amendment subjects states to federal supervision with respect to fairness and basic rights, whether or not state constitutions already provide such guarantees.  That oversight has provides the federal government – in particular the federal judiciary – with great power to shape the institutions and character of people where once the states had almost exclusive authority.

Judicial construction of the 14th Amendment has changed over time and with it the direction of federal influence over state affairs.  Cases such as Lochner v. New York (1905) and Adkins v. Children’s Hospital (1923) upheld “freedom of contract” as a protected right until the doctrine was reversed in West Coast Hotel v. Parrish (1937).  Equal protection case Brown v. Board of Education (1954) profoundly changed – indeed rescued — the American social landscape, dismantling racial segregation. Equal protection case Hernandez v. Texas (1954) created protected classes of racial and ethnic groups.  Through 14th Amendment cases the First, Second, Fourth, portions of the Fifth, Sixth and Eighth Amendments have incorporated against the states under the doctrine of “substantive due process.”

Also through the 14th Amendment, the judiciary has incorporated rights against the states that are implied by “penumbras” and “emanations” of other express Constitutional provisions.  For example, Griswold v. Connecticut (1965) established a right to privacy which limited the right of a state to prohibit the use of contraceptives.  And there is Roe v. Wade (1973), a 14th Amendment case, famously establishing a national rule over the regulation of abortion, where previously each state had set its own rules, including prohibiting abortion in many states.  These last two cases raise an important question.  Was the 14th Amendment intended to displace the state legislatures with the nine justices of the Supreme Court to the extent it has in practice?

J. Eric Wise is a partner in the law firm of Gibson, Dunn & Crutcher LLP, where he practices restructuring and finance

May 6, 2012

Essay #56

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Amendment VII: Trier of Fact Versus Law

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Guest Essayist: J. Eric Wise, a partner at Gibson, Dunn & Crutcher LLP law firm

http://vimeo.com/39680022

Amendment VII:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

If you have good facts, pound the facts; if you have good law, pound the law; if you have nothing, pound the table.  Aside from the good rule of focusing attention on the areas where one’s case has strength, advocacy, as a form of rhetoric, also requires knowing your audience.  In American criminal and civil procedure, where there is a jury, the jury is a trier of fact and the judge makes determinations of law.

The jury is a legal invention that can be traced back to at least 11th Century England, when the Domesday Book was assembled from information gathered by juries empaneled to catalogue property holdings throughout the realm.  Juries of local people were assumed to be familiar with the local facts that would be the basis of the catalogue.

As the use of juries expanded, juries came to be considered a bulwark against tyranny, because while magistrates might align with a king, a jury of peers would check the king’s power at trial.  The Bill of Rights protects jury trials in civil and criminal matters.

The Sixth Amendment provides “In all criminal prosecutions, the accused shall enjoy the right to . . . trial by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.”  The Seventh Amendment provides “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of common law.”

While most state constitutions have jury clauses, the Supreme Court has determined that the Sixth Amendment right to an impartial jury in criminal cases extends to the states through the operation of the Due Process Clause of the Fourteenth Amendment under the doctrine known as “substantive due process.”  However, the right to a trial in the state and district where the crime is committed, known as the Vicinage Clause, is not incorporated into the Fourteenth Amendment against the states.  The right to a jury trial in a civil case is also not protected in state proceedings, unless protected under state law.

In jury trials, judges do not try questions of fact.  Rather judges determine questions of law, including questions regarding the procedures by which the facts are developed in court.  Judges further instruct the jury as to what is the law to which the facts are to be applied.  In certain cases, juries may refuse to determine the facts at all and engage in what is known as jury nullification to satisfy its own views of what the law should be in the particular case.  Arguments run here and there as to whether this is a check and balance of the justice system or whether it is a dereliction of the duties of jurors.

In certain cases and courts the judge is both the trier of fact and the trier of law.  Commercial parties frequently waive the right to a jury trial.  Administrative courts, as administrators, and bankruptcy courts, as courts of equity, largely do not employ juries.  This is in part based on the opinion that the subject matter of administrative law and commercial issues may be too sophisticated for a jury.  Left and Right take varying and perhaps contradictory positions on this.  Some on the Right advocate for removal of juries in medical malpractice cases.  The plaintiffs bar howls.  The Left admires administrative law and great bureaucracies.  They call it job creation.  Almost all commercial interests are satisfied that juries are generally absent from involvement in bankruptcy cases, which require rapid determinations and understanding of complex financial issues.

As usual, Ronald Reagan may have put it best.  In his First Inaugural Address he said first:  “[W]e have been tempted to believe that society has become too complex to be managed by self-rule, that government by an elite group is superior to government for, by, and of the people.  But if no one among us is capable of governing himself, then who among us has the capacity to govern someone else?” and then he said “Now, so there will be no misunderstanding, it is not my intention to do away with government. It is, rather, to make it work—work with us, not over us; to stand by our side, not ride on our back.”

J. Eric Wise is a partner in the law firm of Gibson, Dunn & Crutcher LLP, where he practices restructuring and finance.

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April 3, 2012

Essay # 32

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Amendment V: Right to Due Process to Prevent Deprivation of Life, Liberty, or Property

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Guest Essayist: J. Eric Wise, partner at Gibson, Dunn & Crutcher LLP law firm

http://vimeo.com/38759291

In that funny movie, Monty Python and the Holy Grail, a woman is tried for the crime of being a witch by placing her on a scale to see if she weighs more than a duck.  Laugh now.  In 9th Century England, procedure was scarcely better.  Commonplace were absurdities such as the “ordeal,” where guilt or innocence might be determined by burning the accused with boiling water or a hot iron, trial by battle – including the use of retained champions – and “compurgation,” the testing of witnesses by a ritualistic chain of oaths which if completed proved innocence or if broken proved guilt.

In 1215 English nobles forced King John to place his seal on the Magna Carta at Runnymede.  That document stated in clause 39 “No freeman shall be taken, or imprisoned, or disseized, or outlawed, or exiled, or in any way harmed—nor will we go upon or send upon him—save by the lawful judgment of his peers or by the law of the land.”  It was not until 1354 that clause 39 was re-codified, including “due process of law” in lieu of  “save by the lawful judgment of his peers or by the law of the land.”

The Constitution originally had no bill of rights.  Federalists argued a bill of rights was more appropriate to an all-powerful monarch, subject only to enumerated rights, than to a limited government, having only the powers vested in it by the people.  Yet, to co-opt the opposition, James Madison introduced in the First Congress a bill of rights.  Embedded in the Fifth Amendment are the words “nor shall any person be deprived of life, liberty or property without due process of law.”

“No, no!” said the Queen in Alice in Wonderland.  “Sentence first — verdict afterwards.”  Due process is in the least a guaranty of procedural fairness. As such, due process includes, inter alia, prohibitions against vagueness, the right to notice and a meaningful hearing at a meaningful time, and decisions supported by evidence with law and findings of fact explained.  Exigencies and circumstances affect the extent of procedural requirements through balancing tests.  In circumstances requiring emergency injunctive relief, minimal notice, if any, is required.  Due process is not the same as judicial process.  Citizen affiliates of Al Qaeda beware, the executive may kill you without a trial.

Substantive due process is perhaps of a more controversial sort.  Under the doctrine of substantive due process, the clause implies unwritten rights denying, in certain circumstances, the power to enact legislation – or otherwise act – to deprive life, liberty or property even with fair procedural application.  Legislation that the judiciary finds inherently arbitrary may be voided on substantive due process grounds.

Readers of the Declaration of Independence know that super-legal rights do self-evidently exist and are the source of the authority of the people to govern themselves, but it is hardly a straight path from A to B that it is the role of the judiciary to give natural rights expression as positive law.  Further, substantive due process proponents nowadays do not hang their hat on a natural rights peg.  Compare the language of Justice Samuel Case in Calder v. Bull (1798) regarding the “principles of the social compact” to that of the “penumbral rights” of Griswold v. Connecticut (1965).  In any event, both supporters and detractors alike would be disingenuous to deny that this second sort of “due process” vests somewhat breathtaking power in the judiciary, and raises the critique that by substantive due process legislation may be made without legislative process.

It is important to remember that the due process clause of the Fifth Amendment restricts only federal power.  Consequently, since the ratification of the Reconstruction Amendments, applications of substantive due process under the Fifth Amendment have been limited to hard to scratch places where the due process clause of the Fourteenth Amendment does not reach, such as the territories and the District of Columbia.  It would not be fair, however, to deny substantive due process under the Fifth Amendment some negative attention it deserves.  Perhaps the first Supreme Court case to dive deeply into the waters of substantive due process was Dred Scott v. Sandford (1857), in which, through layered and abominable errors of reasoning, Justice Taney found in the due process clause of the Fifth Amendment a right to property in other human beings that barred Congress from prohibiting slavery in the territories.

March 19, 2012 

Essay #21 

J. Eric Wise is a partner at the law firm Gibson, Dunn & Crutcher LLP, practicing restructuring and finance.

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