Guest Essayist: Gary Porter

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“All politics is local”[i]

Black’s Law Dictionary, 4th Edition defines “Constitution” as “The organic and fundamental law of a nation or state, which may be written or unwritten, establishing the character and conception of its government, laying the basic principles to which its internal life is to be conformed, organizing the government, and regulating, distributing, and limiting the functions of its different departments, and prescribing the extent and manner of the exercise of sovereign powers.” (Emphasis added)

What if a government represents not a “nation or state” but a city or county full of people; does that government also require a constitution?  What if a state, which has a constitution, incorporates a city or county as a political subdivision of the state, is that city or county bound only by the limits of the state constitution, or must it operate from a more narrow set of powers? There being 89,004 local governments in the United States, this is a significant question.[ii]

It is a question politicians have wrestled with since the first elective government was set in place in 1619 Virginia: what are the limits of authority to be exercised by a state’s lower-tiered governments?

John Forrest Dillon (1831-1914) was an American jurist who served on both federal and Iowa state courts during his lengthy career.[iii] In 1872, while sitting on what would later become the Court of Appeals for the Eighth Circuit, he published an influential extended essay or treatise on the power of states over municipal governments, entitled “Municipal Corporations,” or, later, “The Law of Municipal Corporations.” Dillon argued, quite persuasively it seems, that municipal governments can operate only within the express powers given them by their state governments. Dillon’s idea can be summarized this way:

“A municipal corporation possesses and can exercise the following powers and no others: First, those granted in express words (from the state); second, those necessarily implied or necessarily incident to the powers expressly granted; third, those absolutely essential to the declared objects and purposes of the corporation-not simply convenient, but indispensable; and fourth, any fair doubt as to the existence of a power is resolved by the courts against the corporation.”[iv]

In essence, since they are created by the state, local governments exist to perform the tasks of the state at the local level. This makes perfect sense. If it were otherwise, an additional constitution would seem to be required; no government should be allowed to operate without clearly specified limits to its power, or tyranny would soon commence. And if a city, for instance, were to operate with only the bounds provided by the state constitution, conflicts would quickly arise over the boundary between the city’s and state’s jurisdiction. Confusion would reign supreme.

“The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse,” said James Madison on the floor of the Virginia Ratifying Convention in 1788. A hundred years later, America’s cities were growing by leaps and bounds. Tax revenues were increasing exponentially and corruption soon followed. Grafting, which is the unscrupulous use of a politician’s authority for personal gain, was a common practice in utility franchising and public works projects. To make matters worse, local governments borrowed outrageous sums of money in order to attract big businesses and railroad com­panies. Unable to pay businesses back, local officials dissolved their cities and left the debt to the state. Lord Bryce of England observed in 1888: ‘There is no denying that the government of cities is one conspicuous failure of the United States.’”[v]

In Hunter v. Pittsburgh (1907), the Supreme Court cited Dillon’s Municipal Corporations and fully adopted his view of state power over municipalities. Note, this was while Dillon was yet alive – what an honor to have your work cited by the highest court in the land!

Today, the municipalities of forty states operate under some form of Dillon Rule, my home state of Virginia being one of them. There are different versions; some states apply Dillon’s Rule only to cities, some only to counties (Alabama) some only to townships (Indiana).

Louisiana applies the rule only to “pre-1974 charter municipalities.”

The alternative to Dillon’s Rule is called Home Rule,[vi] the principle that local government can exert broad-based power, only restrained by the state and national constitutions. We should realize that before Dillion published his ideas in 1872, there was only home rule or its un-named equivalent for the nearly one hundred years that came before Dillon under the Constitution. Whether a local government is governed by the Dillon Rule or Home Rule, the ultimate decision regarding what power they do possess resides with the state government.

But Dillon’s Rule is increasingly coming under attack. Many elected officials of localities controlled by Dillion’s Rule today contend they are “handcuffed” by its restrictions.[vii]  They argue that Dillion’s Rule provides them little to no power to deal with certain problems, particularly growth within their jurisdiction or technologically complex issues such as fracking, which may extend across jurisdictional boundaries. The proponents of Home Rule argue that there are areas where state power should not infringe on that of local government and many are pushing to have their state either change completely to Home Rule or at least loosen the restrictions of Dillon’s Rule. Many states only apply Home Rule to certain municipalities. Arizona, for example, only applies Home Rule to cities with a population of at least 3,500 people. Thirty-one states apply either straight Dillon’s Rule or a combination of Dillon’s Rule and Home Rule to local jurisdictions.

One problem with Home Rule is uniformity. City governments operating under Home Rule may vary significantly in the quality and effects of their governance due to the way various administrations over the years have exerted their more loosely defined power.  Under Dillon’s Rule municipalities generally operate from a standard set of powers and/or restrictions.

The states of the United States were intended to be, essentially, laboratories within which “experiments” in government could be tried.  The Tenth Amendment supports this view, stating that whatever political power was not delegated to the national government remained with the states and their people.  Whether Home Rule or Dillon’s Rule or some combination of both will win out remains to be seen. In any case, the idea of a self-ruling people demands that the decision not be left to the politicians.

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

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[i] Variously attributed to Associated Press Washington bureau chief Byron Price (1932) and to Chicago writer Finley Peter Dunne (1867-1936), but most famously used by former Speaker of the House Tip O’Neil.

[ii] https://www.census.gov/newsroom/releases/archives/governments/cb12-161.html.

[iii] https://en.wikipedia.org/wiki/John_Forrest_Dillon.

[iv] City of Clinton v Cedar Rapids and the Missouri River Rail Road Company, accessed at: https://supreme.justia.com/cases/federal/us/110/27/.

[v] ACCE-White-Paper-Dillon-House-Rule-Final, accessed at: https://www.acce.us/app/uploads/2016/06/2016-ACCE-White-Paper-Dillon-House-Rule-Final.pdf.

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

[vii] Is Home Rule the Answer? Accessed at https://www.brookings.edu/research/is-home-rule-the-answer-clarifying-the-influence-of-dillons-rule-on-growth-management/

Guest Essayist: Gary Porter

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Once upon a time in America, before the Constitution was ratified, the state courts were the only game in town (and in each state). But there was also a time in America when there were no courts whatsoever.

In early May 1607, stepping off the ship Susan Constant, in chains, was none other than Captain John Smith.  Smith was one of 105 men and boys, plus 39 sailors who had made the perilous 144 day voyage from England.

Smith was among the most enterprising and useful members of the colony, traits that served to make others of the company jealous of his influence. Midway through the voyage Smith had been absurdly charged with plotting to murder the thirteen member ruling council, usurp the government, and make himself King of Virginia. He was confined for the remainder of the voyage. The charge was absurd in the extreme since no one on the three ships making up the small expedition even knew the names of the council members; they were sealed — to be revealed only upon arrival in America.

On their arrival at what would be called Jamestown, Smith was liberated and the roster of councilmen’s names opened, only to reveal that Smith had been assigned as one of the thirteen members.  Smith complained of his unjust imprisonment and demanded a trial but could not obtain one: there was no court! The settlers quickly realized they had other pressing matters: namely, survival!  Half the settlers would die in the first six months; all the while, Smith proclaimed his innocence but was not allowed to take his seat on the council.

When Smith’s enemies could postpone it no longer, a hearing of the case was held and Smith was acquitted of all the charges against him; soon after, he took his rightful council seat.[1]

Shifting to the north, one of the first acts of the Pilgrims of Plymouth after establishing themselves as a “civil body politic” by means of the Mayflower Compact was to establish The General Court of Plymouth Colony, the first to establish a complete legal code in America.[2]

Eventually, as each of the American colonies was settled, courts were established to handle the inevitable squabbles between settlers.

Fast forward to 1781.  One of the chief defects in the Articles of Confederation was that it provided no court system above the state level. With no supervision from above, state courts ruled pretty much as they pleased, not always to the satisfaction of all concerned. The consistent rulings of the Massachusetts court system in favor of creditors and against poor farmers sparked the infamous Shays Rebellion[3] in which, not long after they had fought side by side, Massachusetts farmers and Massachusetts militiamen formed opposing lines and opened fire on each other outside Springfield Arsenal.

Then came the Constitution.

“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish,” so says Article 3, Section One of the U.S. Constitution.  This clause obviously enables creation of the federal court system but the Constitution has little to say about the state court systems:  The Judges in every State “shall be bound” to view the Constitution as the “the supreme Law of the Land” (Article VI), and the “[t]rial of all Crimes, except in Cases of Impeachment, shall be … held in the State where the said Crimes shall have been committed” (Article III, Section 2). That’s pretty much all the Constitution has to say!

About one million cases are filed in the U.S. federal court system each year, while more than 30 million are filed in state courts.[4]

Today, state courts are considered courts of “general” jurisdiction. They hear all the various types of cases not specifically reserved to federal courts. Just as the federal courts interpret federal laws, state courts interpret state laws (although federal courts also get to interpret state laws).

Examples of cases typically heard in state courts include:

  • Violations of state law. Most criminal activity falls in this category, such as robbery, assault, murder, and many drug-related crimes.
  • Controversies arising out of the state constitution or other state laws.
  • Cases in which the state is a party, such as state tax violations.
  • Most real estate cases, malpractice, personal injury cases, and contract disputes.
  • All family, divorce, custody, inheritance and probate cases.
  • Nearly all traffic and juvenile cases

The structure of state court systems varies considerably but there are similarities. To get an idea of what the structure of state courts look like some example states, click on the links below:

The “workhorse” of any state court system is the trial court. This is the lowest level of court and usually where a case or lawsuit will originate. It may be a court of general jurisdiction, such as a circuit court, or it may be a court of special or limited jurisdiction, such as a probate, juvenile, traffic, or family court.

  • Probate courts handle the administration of estates and probating of wills.
  • Family courts focus on cases involving custody and child support, neglect and abuse, and, sometimes, juvenile crime or truancy.
  • Traffic courts handle alleged violations of traffic laws.
  • In some states, special housing courts, or landlord-tenant courts, have been established.
  • Small-claims courts handle civil matters in which the dollar amount at issue is below a certain amount.
  • Juvenile courts generally handle truancy and criminal offenses committed by minors.

Each state has a Supreme Court which is generally considered the court “of last resort” unless and until the matter qualifies for a hearing in the federal court system.

While most federal judges are appointed to their positions, the majority of state trial court judges are elected by the citizens. In some states, supreme court justices are appointed by state governors or legislatures, while in others, justices are elected.

Throughout Virginia’s history (my state), the selection and term of state judges has varied. In 1776, the state legislature selected state judges to serve a life term. Between 1850 and 1864, the citizenry elected state judges. Between 1864 and 1870, state judges were nominated by the governor and confirmed by the state legislature. After 1870, the General Assembly assumed full responsibility for the selection of state judges in Virginia.

State courts play a vital role in our nation’s legal system.  If you are ever a party to a lawsuit or are called as a trial witness, it will likely be in a state court. Without the fifty state court systems the federal court system would be overwhelmed.  State courts are usually easy to locate and provide a great opportunity to introduce school children to the U.S. legal system.

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

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[1] A famous mural depicting the trial sits in the Cuyahoga County Courthouse.

[2] https://worldhistoryproject.org/1636/10/4/the-general-court-of-the-plymouth-colony-instituted-a-legal-code

[3] https://en.wikipedia.org/wiki/Shays%27_Rebellion

[4] https://www.bjs.gov/index.cfm?ty=tp&tid=30

Guest Essayist: Gary Porter

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What is the purpose and impact of Article IV, Section 4 of the U.S. Constitution in that “The United States shall guarantee to every State in this Union a Republican Form of Government”? How does this form relate to the republican (representative) styles such as Commission Form, County Administrator, Elected Executive, City-County Consolidation, Constitutional Row Offices or Home Rule Authority to ensure power remains in the hands of each American, preventing a monarchy or aristocracy in each state and local government?

Further, what is a republic, why must Congress guarantee each state has and maintains a “Republican Form of Government” and how does it do this?

To the Framers of the Constitution, democracy was a hideous form of government. The colorful Fisher Ames, in one of his more measured criticisms, wrote: “Democracy, in its best state, is but the politics of Bedlam; while kept chained, its thoughts are frantic, but when it breaks loose, it kills the keeper, fires the building, and perishes.” Monarchy was obviously unacceptable; a confederation had been tried and found wanting; this left a republic. But a republic which, according to Dr. Benjamin Franklin, must be “kept.” The Constitution’s Article 4 Section 4 contributes to the “keeping.”

The first difficulty Congress faces in guaranteeing each of the fifty States has and maintains a “republican form of government” involves the lack of a consensus over what signifies this “republican form of government.” There never has been a consensus and likely never will be.

James Madison, writing as “Publius,” took a stab at the definition of a republic in 1787/88. Across several of the Federalist essays he identifies seven “republican” attributes. These are neatly summarized by Scott T. Whiteman in his short essay What is a Republic Anyway?[i]

They include:

  1. A government operating under separation of powers; Federalists Nos. 9, 47, 28, 76
  2. Representatives governing during a limited term and/or during good behavior; Nos. 9, 39
  3. Representatives elected by the people; Nos. 9, 39
  4. Power residing in the People; No. 39
  5. A government that is deliberative in action; No. 71
  6. Acknowledging the right of the people to alter or abolish their government; No. 78
  7. A government that prohibits grants of entitlement or nobility; No. 84

Contemporary authors believe additional attributes should be included, such as the Rule of Law and absence of a Monarchy.[ii]

It is easy of course to distinguish a republic from direct democracy, but must all of Madison’s seven features be present before a political entity can be declared “republican?”

When a U.S. territory applies for statehood, Congress first passes an Enabling Act which gives the applying territory the authority to draft a proposed constitution, which is then approved by the state’s citizens and submitted for review by Congress to ensure it reflects the “republican form.” Beyond allowing Congress to ensure the basic requirements of republicanism are met, this also provides Congress the opportunity to identify anything else it objects to in the way the state intends to conduct its affairs. On rare occasions Congress has insisted upon changes to the proposed state constitution before admission, such as when Congress insisted that Utah (the 45th state) first prohibit polygamy.[iii] Similar polygamy prohibitions were required of Oklahoma (46th state), New Mexico (47th state), and Arizona (48th state).

How does Congress ensure a state maintains its republican form? Here is where it gets sticky.

In 1841, Rhode Island was still operating under a government established by their royal charter of 1663. The charter strictly limited suffrage and made no provision for amendment. Groups protesting these restrictions in the charter held a popular convention to draft a new constitution and to elect a governor. In response, the existing charter government declared martial law and set out to “put down the rebellion” (called the Dorr Rebellion, after ringleader Thomas Dorr). One of the “rebels,” Martin Luther (no relation to the 1517 reformer), whose house was damaged during a search by law officers, brought suit claiming the old state government was not “a republican form of government” and all its acts, including its declaration of martial law, were thereby invalid. In Luther v. Borden. (1849)[iv], the Supreme Court declared in dictum that interpretation of the Guarantee Clause is a political, not a judicial question. Said another way: a “Republican Form of Government,” like “High Crimes and Misdemeanors,” is whatever Congress says it is. As noted in the Heritage Guide to the Constitution, “Citizens of a state who believe their state government has departed from the “republican form” should apply to Congress for relief rather than to the courts.”[v]

More modern charges of departure from a “republican form” involve the issue of popular referendums, which critics say embrace direct democracy. By way of review, in a referendum, the voters decide a policy issue outside the purview of their elected representatives. A referendum obtaining a majority vote generally goes into effect without further action by the legislature. The use of initiatives and referendums is written into the constitutions of twenty-six states, particularly those in the west, and these states contain over fifty percent of the U.S. population so many Americans encounter them. Popular initiatives, referendums, or popular recall of elected representatives are admittedly all forms of direct democracy, but does the use of one mean the government is no longer republican? Every state except Delaware ratifies state constitutional amendments through a vote of their citizens rather than by their elected representatives. This is similar to one of the two methods of ratifying a U.S. Constitutional amendment, does this depart from “republicanism.” No one has complained of this to the courts. Ironically, as morbid proof that we don’t have a democracy in America, in the thirty-one states where voters popularly- approved constitutions prohibitions of same-sex marriage, all it took was one Supreme Court decision (Obergefell v. Hodges) to overturn them all.

Turning to local government and the question of republicanism, we find that local government can take many forms.

In the Commission form of government, often encountered in cities or counties, voters elect a small commission, typically of five to seven members who comprise the legislative body of the city or county and, as a group, are responsible for taxation, appropriations, ordinances, and other general functions. Individual commissioners are also usually assigned specific executive responsibilities such as public works, finance, or public safety. This form of government thus combines legislative and executive functions in the same body.

In the County Administrator form, an Administrator is usually appointed by an elected council/commission. The Administrator then is responsible for administration of all governmental departments, subject to the council’s control.

The Elected Executive form is similar except that the Executive is elected by the polity instead of being appointed by the council or commission.

Constitutional Row Officers derive their name from the fact that the departments were first listed in a row on election ballots. In the Commonwealth of Pennsylvania, for example, row officers include: Clerk of Court, Controller, Coroner, District Attorney, Prothonotary, Recorder of Deeds, Register of Wills, Sheriff and Treasurer.

Home Rule Authority describes the power of a local city or county to set up its own system of self-government without requiring a charter from the state. Full home rule is allowed in thirty state constitutions and limited home rule in another nine.[vi] A city or county that adopts a home rule charter has the ability to amend its governmental organization and powers to suit its needs; in essence, they establish a local constitution.

As you can see, each of these forms embraces a republican form of government, at least in that elected representatives are used for day-to-day governing rather than involving the people themselves.

According to the U.S. Census Bureau, in 2012, there were 89,004 local governments in the United States.[vii] This included such things as school boards and regional planning authorities.[viii] Compare this with the fact that there are only 50 state governments and one (albeit ginormous) national government and you can see where the bulk of governing takes place in these united States: at the local level. Americans interested in serving their fellow citizens are advised to set their sights on local government. However, a brief and certainly not statistically significant analysis of current U.S. Representatives found only three in ten first served in local government. Twice as many held their first elective office in one of the 7,383 state legislature seats (nationwide).[ix]

While many Americans seem to give little attention to their national government, even fewer are interested in their local governments, particularly who is to represent them in those governments and how they actually govern. Voter turnout in national elections is alarmingly low, but turnout in state and local elections even worse;[x] some school board and city council members have reportedly been elected by only 10-15 percent of the eligible voters. And elections at the state and local level are often decided by amazingly small margins, even by a single vote.[xi] Our citizens’ lack of interest in local government can be confirmed by attending or viewing any televised city council or county board of supervisors meeting. There, with few exceptions, you’ll find a nearly empty room with the council members speaking, if to anyone but themselves, to a small handful of citizens. This is ironic since the day-to-day lives of Americans are arguably more influenced by local laws, codes and ordinances than those of their state or nation, local zoning laws being a prime example. On the other hand, polls show more Americans (71%) trust their local governments than their state governments (62%).[xii]

The cry of: “take back our democracy” is often heard these days, particularly from many on the political left. It is a silly notion, considering that our republican form of government is what is really at stake. But the phrase is useful; it brings in donations, lots of donations. Instead of waving “take back our democracy” signs , might I instead suggest we form a line and register as candidates for every elected office, from dog-catcher on up?

Next time you see your Congressman or Congresswoman, ask them how Congress guarantees to each state a republican form of government and see what response you get.

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

 

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[i] https://www.theamericanview.com/constitution-course-supplemental-assignments/what-is-a-republic-anyway/.

[ii] Heritage Guide to the Constitution, David F. Forte and Matthew Spalding, ed., Washington, D.C. 2014, Guarantee Clause, p. 369.

[iii] https://en.wikipedia.org/wiki/Utah#Utah_Territory_(1850%E2%80%931896).

[iv] Luther v. Borden. Luther v. Borden, 48 U.S. (7 How.) 1 (1849).

[v] Heritage Guide, p. 370.

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

[vii] https://www.census.gov/newsroom/releases/archives/governments/cb12-161.html.

[viii] The 89,004 includes 3,031 counties, 19,522 municipalities, 16,364 townships, 37,203 special districts and 12,884 independent school districts.

[ix] https://en.wikipedia.org/wiki/List_of_United_States_state_legislatures.

[x] https://www.governing.com/topics/politics/gov-voter-turnout-municipal-elections.html.

[xi] https://www.npr.org/2018/11/03/663709392/why-every-vote-matters-the-elections-decided-by-a-single-vote-or-a-little-more.

[xii] https://news.gallup.com/poll/195656/americans-trusting-local-state-government.aspx.

Guest Essayist: Gary Porter

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How the Bill of Rights Was Aimed at the Federal Government Because States Had Their Own Bills of Rights

James Madison was suspicious of a Declaration of Rights at the national level. In a letter to his friend Thomas Jefferson, then serving as Minister to France, Madison confessed that his “own opinion has always been in favor of a bill of rights; provided it be so framed as not to imply powers not meant to be included in the enumeration.”[1] He was particularly concerned “that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of conscience in particular, if submitted to public definition would be narrowed much more than they are likely ever to be by an assumed power.”[2] But Madison had seen, first-hand, the obstinacy of the states under the Articles of Confederation towards the rights of their citizens.  In his “Vices of the Political System of the United States,” Madison decried the “Injustice of the laws of States.” While the “multiplicity” and “mutability” of state laws showed a “want of wisdom,” their “injustice” was “still more alarming: more alarming not merely because it is a greater evil in itself, but because it brings more into question the fundamental principle of republican Government, that the majority who rule in such Governments, are the safest Guardians both of public Good and of private rights.”[3]

Madison told Jefferson that in their home state he had “seen the bill of rights violated in every instance where it [was] opposed to a popular current.” His precious “rights of conscience” were particularly vulnerable.  Madison was livid over the jailing of Baptist preachers in the neighboring Culpeper County, calling it “that diabolical Hell conceived principle of persecution” in a letter to his College of New Jersey classmate William Bradford.

In 1776, Madison had the opportunity to strike a blow for liberty of conscience by successfully arguing, as Virginia’s Declaration of Rights was being drafted, that the principle of “toleration” towards other Christian denominations, even if it was fullest toleration, was simply not enough.  Citizens would not enjoy complete liberty of conscience until “all men are equally entitled to the free exercise of religion.”

It comes as no surprise then to see Madison try once again to protect liberty of conscience in 1789 when drafting his proposed amendments to the new Constitution. One proposed article read: “No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.”  In the ensuing floor debate it was argued that this amendment was improper; the Constitution gave the federal government no authority to alter the state constitutions, and such an amendment would certainly amount to such an alteration, at least in the state constitutions where a right of conscience was not already secured.  Madison, however, viewed this as the most important amendment in the whole list, his reason being, “If there were any reason to restrain the Government of the United States from infringing upon these essential rights, it was equally necessary that they should be secured against State Governments.” Madison was eventually outvoted and the “infringement” on the states was “left on the cutting room floor.”

The Constitution already contained some specific words concerning state powers; Article 1 Section 10 enumerated several tightly targeted prohibitions, and the 10th Amendment made clear that any power not specifically granted to Congress was reserved to the states and/or the people.

Congressmen in the summer of 1789 were well aware that the constitution of nearly every state predated the new U.S. Constitution and that they had been working well.  Almost all of them contained either Declarations of Rights or specific protections in the body of the constitution; some of these protections were more elaborate even than those which ended up in the U.S. Bill of Rights.[4]

That’s the way things would stand for the next 136 years; but I’m getting ahead of myself.

In the early 1830s, the city of Baltimore, Maryland, began a public works project that required the modification of several streams that emptied into Baltimore Harbor. Construction resulted in large amounts of sediment entering the streams, which flowed into the harbor near a wharf owned and operated by one John Barron.  The sediment eventually reached the point where it became nearly impossible for ships to approach Mr. Barron’s wharf and his business dropped precipitously. Barron sued the City of Baltimore for his financial loss, arguing that the city’s action “took” his property without the due process promised him by the Fifth Amendment. He was awarded $4,500 in damages by the trial court, but a state appellate court reversed the decision.  Barron appealed to the Supreme Court, which ruled[5] that the Fifth Amendment’s guarantee of just compensation when private property is taken for public use is a restriction on the federal government alone. The opinion in Barron v. Baltimore by Chief Justice John Marshall held that the Constitution’s first ten amendments[6]contain no expression indicating an intention to apply them to the State governments.”

This made perfect sense.  The first five words of what became known as the Bill of Rights: “Congress shall make no law…” make clear the target of the amendments – Congress (and by implication, the rest of the federal government), not the states.

On February 26, 1866, in debate over what became the 14th Amendment, the amendment’s principal author, Rep. John Bingham, was asked whether he intended the amendment to apply, as some perceived, “only to the eleven states lately in rebellion.”  Bingham replied: “It is to apply to other States also that have in their constitutions and laws to-day provisions in direct violation of every principle of our Constitution.”[7]

The following day, Rep. Bingham rose to elaborate upon the preceding day’s debate.

“Excuse me. Mr. Speaker, we have had some most extraordinary arguments against the adoption of the proposed amendment…

“Mr. Speaker, I speak in behalf of this amendment in no party spirit, in no spirit of resentment toward any State or the people of any State, in no spirit of innovation, but for the sake of a violated Constitution and a wronged and wounded country whose heart is now smitten with a strange, great sorrow. I urge the amendment for the enforcement of these essential provisions of your Constitution, divine in their justice, sublime in their humanity, which declare that all men are equal in the rights of life and liberty before the majesty of American law.

“Representatives, to you I appeal, that hereafter, by your act and the approval of the loyal people of this country, every man in every State of the Union, in accordance with the written words of your Constitution, may, by the national law, be secured in the equal protection of his personal rights. Your Constitution provides that no man, no matter what his color, no matter beneath what sky he may have been born, no matter in what disastrous conflict or by what tyrannical hand his liberty may have been cloven down, no matter how poor, no matter how friendless, no matter how ignorant, shall be deprived of life or liberty or property without due process of law—law in its highest sense, that law which is the perfection of human reason, and which is impartial, equal, exact justice; that justice which requires that every man shall have his right: that justice which is the highest duty of nations as it is the imperishable attribute of the God of nations.”

Representative Robert Hale of New York rose to ask whether he might be allowed “to ask a single question pertinent to this subject?” Bingham accepted.

(Hale) “I desire … to ask [Mr. Bingham], as an able constitutional lawyer, which he has proved himself to be, whether in his opinion this proposed amendment to the Constitution does not confer upon Congress a general power of legislation for the purpose of securing to all persons in the several States protection of life, liberty, and property, subject only to the qualification that that protection shall be equal…”

(Bingham) “It certainly does this: it confers upon Congress power to see to it that the protection given by the laws of the United States shall be equal in respect to life and liberty and property to all persons.”

(Hale) “Then will the gentleman point me to that clause or part of this resolution which contains the doctrine he here announces?”

(Bingham) “The words ‘equal protection’ contain it, and nothing else.”

It would take the Supreme Court 39 years to come around to Bingham’s thinking on the 14th Amendment.

Eight years after the 14th Amendment was ratified, in fact, in United States v. Cruikshank, the Court affirmed, once again, that the Bill of Rights did not apply to the states.  In Cruikshank, it meant that the First Amendment’s right to assembly “was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National Government alone.”[8]

We skip forward to July 1919. Benjamin Gitlow, a member of the Socialist Party of America, who had served in the New York State Assembly, published a document called “Left Wing Manifesto” in The Revolutionary Age, a newspaper for which he also served as business manager.  The State of New York charged Gitlow with criminal anarchy under New York’s Criminal Anarchy Law of 1902.

At trial, Gitlow insisted that his “Manifesto” consisted of historical analysis and did not advocate anarchy. Nevertheless, he was convicted and sentenced to five to ten years in prison.  He appealed, and the case eventually reached the Supreme Court.

The question presented to the court was: “Does the First Amendment prevent a state from punishing political speech that directly advocates the government’s violent overthrow?” The Supreme Court said “No,” finding that “Freedom of speech and of the press, as secured by the Constitution, is not an absolute right to speak or publish without responsibility whatever one may choose or an immunity for every possible use of language.”  They upheld Gitlow’s conviction with the explanation that the government may suppress or punish speech that directly advocates the unlawful overthrow of the government, but the Court took the unprecedented step in announcing that, for the purposes of the case, that freedom of speech and of the press are among the personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the States.[9] (Emphasis added) This became what is now called the “Incorporation Doctrine.”

After Gitlow, the Court began the tedious process of clause by clause incorporation as specific cases allowed. Not every clause of the Bill of Rights was deemed worthy of incorporation; in Palko v. Connecticut, the Court ruled that only those rights that were “of the very essence of a scheme of ordered liberty” should be incorporated.[10]  We should note that the phrase “scheme of ordered liberty” appears nowhere in the Constitution. To mold a court-invented doctrine so that it aligns with a syrupy but entirely unconstitutional phrase would seem the height of judicial hubris.

Some notable exceptions to incorporation thus far include the entire Third Amendment (outside the jurisdiction of the Second Circuit Court of Appeals), indictment of a Grand Jury (Fifth Amendment) and the right to a jury selected from residents of the state and district where the crime occurred (Sixth Amendment).

A list of those clauses incorporated can be found on Wikipedia.[11] The most recent addition to the list is the “Excessive fines” clause of the Eighth Amendment in February 2019 (in Timbs v. Indiana)

The incorporation Doctrine is not without its critics,[12] this writer being one of them.  While it may be appropriate for the states to be held responsible for protecting the rights specified in the Bill of Rights, having the Supreme Court invent the doctrine of incorporation without input from We the People is blatantly unconstitutional.  The American people should have been allowed to conduct a national conversation over the idea, an appropriate Constitutional amendment should have been proposed and, if ratified, the feat would have been accomplished, constitutionally.  Instead, the court, never intended by the Framers to be representative of the people, took it upon itself to act.  This is certainly in line with the view of Chief Justice Charles Evan Hughes that “[w]e are under a Constitution, but the Constitution is what the judges say it is….”[13] The acquiescence of the American people since 1925 has been perceived as their acceptance.

Bryan Keith Morris, in The Incorporation Doctrine: A Legal and Historical Fallacy, takes a textualist instead of original intent position (as taken by the Court) in arguing that the Incorporation Doctrine should be discarded.  John P. Frank obliterates the originalist position in “The Original Understanding of “Equal Protection of the Laws.[14]  Both essays should be read before someone comes to a conclusion on the matter.

Today, Associate Justice Clarence Thomas and others maintain that the privileges and immunities clause of the Fourteenth Amendment and not the due process clause should provide the anchor for the Incorporation Doctrine. Thomas recently reiterated this view in his concurring opinion in Timbs v. Indiana.

No matter what your position of the rectitude of the Incorporation Doctrine today, it is indisputable that those who approved and ratified the Bill of Rights had no intention of infringing on the powers of the several states.

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

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[1] James Madison to Thomas Jefferson, 17 Oct. 1788.

[2] Ibid.

[3] https://founders.archives.gov/documents/Madison/01-09-02-0187.

[4] See https://www.americanthinker.com/articles/2018/12/state_bills_of_rights_have_the_real_protections.html

[5] Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833).

[6] The Constitution had 12 amendments by then.

[7] https://www.encyclopedia.com/history/dictionaries-thesauruses-pictures-and-press-releases/congress-debates-fourteenth-amendment-1866.

[8] https://caselaw.findlaw.com/us-supreme-court/92/542.html.

[9] https://supreme.justia.com/cases/federal/us/268/652/.

[10] https://en.wikipedia.org/wiki/Palko_v._Connecticut.

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

[12] https://lonang.com/wp-content/download/TheIncorporationDoctrine.pdf.

[13] Speech before the Chamber of Commerce, Elmira, New York (3 May 1907); published in Addresses and Papers of Charles Evans Hughes, Governor of New York, 1906–1908 (1908), p. 139.

[14] https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=2738&context=law_lawreview.

Guest Essayist: Gary Porter

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Admitted in June 20, 1863 by ratifying the U.S. Constitution, West Virginia became the thirty-fifth state. It is known as “The Mountain State” with the West Virginia State Constitution in current use adopted in 1872

The story of how West Virginia became a state is an amazing story; full of constitutional intrigue and slight-of-hand worthy of Houdini himself.

Our story begins, where else, in 1776 Virginia.  Virginia’s Constitution of 1776 was a rush-job.  War with Britain was eminent and Virginia would need a new government to see it through this war; time was fleeting. Anticipating that the Continental Congress then meeting in Philadelphia would consider and likely approve a call for independence,[1] forty-five delegates assembled at Williamsburg, Virginia on May 6th. Seven weeks later, on June 29, Virginia had a new Constitution.

Virginia’s Declaration of Rights, which preceded the Constitution itself, is one of the finest written during the founding period.  Largely the work of George Mason of Fairfax, VA (with some important input from a 25-year old James Madison) it elucidates several enduring principles of constitutional liberty absent even from the U.S. Constitution and its Bill of Rights.

The new Constitution was put into effect immediately upon its signing, without even so much as a nod to the people of the state.  When this “non-ratification” was challenged in 1793, the Virginia Supreme Court ruled that “This constitution is sanctioned by the consent and acquiescence of the people for seventeen years…” Case dismissed.

The new Constitution immediately attracted critics, among them Thomas Jefferson and James Madison.  Jefferson had wanted to remain in Williamsburg and work on the Virginia Constitution; instead he had been sent north to Philadelphia and on July 4th 1776, America benefited from the decision to send Jefferson north.   From Philadelphia, Jefferson had sent back to Williamsburg his ideas for the state constitution.  Unfortunately, they arrived too late for consideration.[2]

Among its many features, the 1776 Constitution limited the right to vote primarily to property owners and men of wealth. This coupled with malapportionment of voting districts, concentrated power in the hands of the landowners and aristocracy of Southeastern Virginia.  In the only book he ever wrote, “Notes on the State of Virginia” (1785), Jefferson listed several “capital defects” of the Virginia Constitution, including the unequal representation in the legislature.

Year after year, petitioners, largely from the western counties, called on the Virginia Assembly to initiate a constitutional convention to correct this and other deficiencies; to no avail. The House of Delegates twice passed a bill calling for a convention only to have it fail in the more conservative Senate. Western counties in the state continued to experience continued growth and increasing irritation at their lack of representation in the Assembly.

Finally, from October 5, 1829 to January 15, 1830, a convention met to “fix” the defects in the Constitution.  It has been termed the last “gathering of giants.”  Present were two former U.S. Presidents (James Madison and James Monroe) and the sitting Chief Justice of the Supreme Court, John Marshall (the Court’s case load was apparently not as pressing as it is today).  This august group of 96 men would eventually supply three presidents, seven U.S. Senators, fifteen U.S. Representatives and four governors.[3]

Despite the pleading of James Madison and others, the convention failed to fully rectify the Constitution’s malapportionment problem. They loosened the requirements for suffrage, but kept representation by county, which failed to solve the basic problem facing the western counties, and their residents would continue to feel under-represented and disenfranchised for the next 30 years.  The 1829 constitution was put to a popular vote and passed, even while many residents in the west voted against it.

Over the next 20 years the western half of Virginia experienced a flood of new settlers.  Attracted by cheap plentiful land, these hardy souls set up much smaller farms than those in the east — farms manageable without resorting to slave labor.  Calls for emancipation of the slaves and more equitable representation in Virginia’s government continued to be heard from the west.

Another constitutional convention in 1850-1851 eliminated the property requirement for voting, established popular election for the Governor and all Virginia judges, and created the office of Lieutenant Governor, also elected.  Delegates took note of the rising tension between the slave-owning east and the emancipation-interested western counties.[4]

Rising tensions in the United States between the manufacturing North and the agrarian South, exacerbated by the issues of slavery, tariffs, nullification and state’s rights reached a breaking point on December 20th, 1860 when South Carolina seceded from the Union.  In response, the Virginia General Assembly called for a convention, to meet in Richmond on February 13, 1861,[5] to consider whether Virginia should join South Carolina.  By the end of January, six additional southern states had seceded.

On April 12, Fort Sumter was attacked and taken over by the South.  Three days later President Lincoln issued a call for the states to provide 75,000 Union troops, including three regiments of 2,340 men from Virginia. Although a previous resolution to secede had been defeated in the convention, on April 17, 1861, Lincoln’s call for troops became too much: the convention approved an “Ordinance of Secession,” by an 88-85 vote.  All of the western and several of the northern counties objected to the Legislature’s decision to secede, but Virginia voters overall approved the ordinance by a wide margin and the convention formally ratified the Constitution of the Confederate States of America on June 19, 1861.

Virginia’s western counties conducted “anti-secession” conventions in Wheeling, Virginia on May 11, and June 11, 1861.  The Second Wheeling Convention declared the offices of all government officials in Richmond who had voted for secession to be vacant and promptly filled them with their own people. Viewed from another perspective, the Restored Government seceded from the state of Virginia.  The “Restored Government of Virginia,” with Francis H. Pierpont as their Governor, next appointed two Senators and two Representatives, who were immediately recognized by the U.S. Congress (Lincoln welcomed the votes).

Once that was complete, the “Restored Government of Virginia” moved itself to Alexandria, where it operated until 1865, while the “Secession Government of Virginia” continued to meet in Richmond.

At this point, there were two Virginia governments in existence, one meeting in Richmond and considering itself part of the Confederacy and one meeting in Alexandria considering itself part of the Union.  Each claimed the entirety of the land mass of Virginia as its own.  Was any of this legal?  The plot thickens.

The “Restored Government,” acting in accordance with Article IV, Section 3 of the U.S. Constitution, passed a resolution allowing the counties of northwest Virginia to split off and form their own state called West Virginia.  Before West Virginia is admitted to the Union as a distinct state (in 1863) there were actually three separate governments operating within the confines of the state of Virginia: one part of the confederacy, one part of the Union and one hopeful of becoming a separate state.  The “Restored Government” approved a new constitution in 1864.  Since this constitution was enacted under wartime conditions and the “Restored Government” stood on rather shaky ground to begin with, the 1864 constitution is not recognized as part of the constitutional history of Virginia.

The Virginia Declaration of Rights contains a statement that “all [political] power is … derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.”  When “the people” delegate their sovereign power to a government, is that a one-way trip, is the power forever surrendered?  No, no, a thousand times no!  Virginia’s Ratification Convention of the U.S. Constitution in 1788 made this crystal clear by writing: “WE the Delegates of the people of Virginia…, DO in the name and in behalf of the people of Virginia, declare and make known that the powers granted under the Constitution, being derived from the people of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression.”[6]

How much political power did the “Restored Government of Virginia” actually enjoy?  That’s certainly debatable; same for the government of West Virginia, and the Secession government for that matter.  Certainly possessed some legitimate political power resulting from the people each government represented.

But wait, there’s more!

There is also a provision in the Virginia Declaration of Rights of 1776 (Section 14) that reads: “…the people have a right to uniform government, … therefore, … no government separate from, or independent of the government of Virginia, ought to be erected or established within the limits thereof.” How was the “Restored Government” not in violation of the 1776 constitution?  The “Restored Government” saw no problem, they considered the secessionist government officials to have vacated their offices, which the “restorers” gladly “filled.” Problem solved.

On December 5, 1865, however, the Virginia Assembly in Richmond passed legislation repealing all the acts of the “Restored Government” regarding secession of the 39 counties and the admission of Berkeley and Jefferson counties to the state of West Virginia.

In response, on March 10, 1866, Congress passed a resolution acknowledging the transfer of Berkeley and Jefferson counties from Virginia to West Virginia.

The Virginia Assembly in Richmond sued.  With not a single Justice from any of the southern states on the bench, the odds were stacked against Virginia.  In Virginia v. West Virginia (1871), the Court avoided the question of whether West Virginia’s existence as a state was constitutional and instead focused on the specific counties referred to in the trial. They quickly dispensed with a challenge by West Virginia that they lacked jurisdiction to hear the case and then sided with the “Restored Government of Virginia” that what had occurred was all right and proper, that Congress had properly approved West Virginia’s proposed Constitution and that the polling of the citizens that had been conducted during this process was legitimate.[7]

After the war concluded in favor of the Union, the “Restored Government of Virginia” moved its operations to Richmond and operated under the Constitution of 1864 until Virginia was placed under the military rule of Lieutenant General John M. Schofield.  Schofield called for a new constitutional convention, which meet in Richmond in December 1867.  They enacted a constitution containing a provision that prevented Virginia from ever again leaving the Union.

On October 8, 1869, Virginia voted to ratify the Fourteenth and Fifteenth Amendments, and by doing so began the process of re-admittance to the Union, which concluded on January 26, 1870 when President Ulysses S. Grant signed an act culminating the process (But wait, wasn’t the restored “Virginia” back in the Union as of April 1861?).

The present West Virginia Constitution, enacted in 1872, begins: “Since through Divine Providence we enjoy the blessings of civil, political and religious liberty, we, the people of West Virginia, in and through the provisions of this Constitution, reaffirm our faith in and constant reliance upon God and seek diligently to promote, preserve and perpetuate good government in the State of West Virginia for the common welfare, freedom and security of ourselves and our posterity.”

The Bill of Rights, which comprises Article 3, not surprisingly borrows heavily from the Virginia Declaration of Rights. It is not without its unique elements, however.

Section 11 states: “Political tests, requiring persons, as a prerequisite to the enjoyment of their civil and political rights, to purge themselves by their own oaths, of past alleged offences, are repugnant to the principles of free government, and are cruel and oppressive.  No religious or political test oath shall be required as a prerequisite or qualification to vote, serve as a juror, sue, plead, appeal, or pursue any profession or employment.  Nor shall any person be deprived by law, of any right, or privilege, because of any act done prior to the passage of such law.”  The first clause is a reaction to the state government passing imposing loyalty oaths in the aftermath of the Civil War.  The repugnancy of such oaths, in fact, provided much of the impetus for the 1872 Constitution.

Section 15a is also unique.  It reads: “Public schools shall provide a designated brief time at the beginning of each school day for any student desiring to exercise their right to personal and private contemplation, meditation or prayer.  No student of a public school may be denied the right to personal and private contemplation, meditation or prayer nor shall any student be required or encouraged to engage in any given contemplation, meditation or prayer as a part of the school curriculum.”

Section 22 makes it clear that “A person has the right to keep and bear arms for the defense of self, family, home and state, and for lawful hunting and recreational use.” No confusing militia clause here.

Some other interesting provisions include a prohibition against duels, but only on the part of those who might later seek public office (Article 4 §10).

Since 1872, West Virginians have added more than fifty amendments to their Constitution and the rate of amendment gradually accelerated (there were only three amendments in the 19th century). There have been occasional calls for a new constitution. In 1964, the legislature passed a law that authorized the election of delegates to a constitutional convention. The movement then stalled after the state Supreme Court invalidated the law because it improperly apportioned delegate selection.

One is hard pressed to find any of the fifty United States with a more convoluted tale of statehood.  Welcome to “The Mountain State.”

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

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[1] Delegate to the Continental Congress Richard Henry Lee had in fact been provided a resolution for independence to introduce in the Congress.  He did so on June 7, 1776.

[2] The Virginians did adopt much of the Declaration’s “grievances” section (from Jefferson’s initial draft) as the preamble to their new Constitution.

[3] https://en.wikipedia.org/wiki/Virginia_Constitutional_Convention_of_1829%E2%80%931830

[4] https://en.wikipedia.org/wiki/Virginia_Constitutional_Convention_of_1850

[5] https://www.encyclopediavirginia.org/Virginia_Constitutional_Convention_of_1861

[6] http://avalon.law.yale.edu/18th_century/ratva.asp

[7] Virginia v. West Virginia, 78 U.S. (11 Wall.) 39 (1871)

 

Guest Essayist: Gary Porter

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Known as “The Gem State,”  Idaho ratified the U.S. Constitution July 3, 1890 admitting the forty-third state to the Union. The Idaho State Constitution currently in use today was adopted on the same day as the state’s admission to the Union, July 3, 1890.

“We, the people of the State of Idaho, grateful to Almighty God for our freedom, to secure its blessings and promote our common welfare do establish this Constitution.” So begins the Idaho Constitution.

I’ve been to Idaho, many times. I’ve fished its waters, hiked its trails, hunted its elk (successfully), eaten its potatoes and golfed its links; it’s a beautiful state which also gave birth to a beautiful woman who would eventually become my wife. You should visit.

You may recall that, thanks to President Thomas Jefferson’s foresight and his Secretary of State, James Madison’s constitutional interpretation, the United States gained title to what was commonly called the Louisiana Territory from France in 1803, extending the United States of America all the way to the Pacific Ocean. Two years later, on their way to that ocean, Lewis and Clark entered present-day Idaho on August 12, 1805, at Lemhi Pass, bringing with them the first black man to also enter the land. In 1819, a treaty with Spain removed that country’s claim to the same land. One would think these two actions, with France and Spain, would settle the question of who owned the land that would one day become Idaho. One would be wrong; one more treaty would be required. In the 1820s, the British-owned Hudson’s Bay Company moved in and soon controlled the fur trade in the Snake River area. They encountered competition from French fur trading companies, and before too long, additional Americans. British claims to the land were settled in 1846 by the Oregon Treaty and the area became undisputed U.S. territory for the first time. Under U.S. jurisdiction over the next few years, the land mass of what would become Idaho was alternately made part of the Oregon Territory and Washington Territory.

Idaho’s gold rush began in 1860 when placer gold was discovered at Pierce, Idaho, and the industry continues to this day, 3 million troy ounces (more than 90 tons) later. Three years after the gold rush began, a silver rush followed that has produced 1 million troy ounces to date.[i]

Captivated by the thought of siphoning off some of the newfound wealth, Congress began encouraging the land be recognized as a distinct territory.

On December 15th, 1862, in the midst of the Civil War, Congressman William Kellogg of Illinois, introduced the following resolution in the House of Representatives: “Resolved, That the Committee on Territories be instructed to inquire into the propriety of establishing a Territorial government for that region of country in which are situated the Salmon river gold mines; and that they report by bill or otherwise.” Two months later, the “Organic Act of the Territory of Idaho,” passed by both Houses and signed by the President on March 3, 1863, provided a temporary government for the territory.

As created by Congress, the Territory extended across an area one-quarter larger than Texas. Today’s state is much smaller but still as large as all six of the New England states combined, with New Jersey, Maryland, and Delaware thrown in for good measure. Traveling from Bonner’s Ferry in the north of the state to Montpelier in the extreme southeast requires a trip of nearly 800 miles, only slightly shorter than a trip from New York City to Chicago.[ii]

Idaho’s Constitution,[iii] which forms the basic governing document of the state, was adopted on August 6, 1889 by a constitutional convention. After the convention concluded its work, the proposed constitution was submitted to a vote of the people with this caution:

“You will bear in mind that there has, never will be, nor is it in the  power of men to frame, a constitution that will meet the views of all. The framers of the constitution fully realizing this fact, labored  earnestly to harmonize all conflicting interests. If twenty  conventions were held it is not probable one of them would frame a constitution with as few defects as the one now submitted for your  examination, and upon which you are to vote.”

These words bring to mind similar remarks of Benjamin Franklin on September 17, 1787:

“I confess that there are several parts of this constitution which I do not at present approve, but I am not sure I shall never approve them: For having lived long, I have experienced many instances of being obliged by better information, or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise. It is therefore that the older I grow, the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others… I doubt … whether any other Convention we can obtain, may be able to make a better Constitution. For when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an assembly can a perfect production be expected?”

Constitution-making can indeed be messy.

Back in Idaho Territory, the convention approved the proposed constitution by a hefty margin and it was ratified in a statewide vote in November, 1889. Congress approved the ratified constitution on July 3, 1890 and President William Henry Harrison signed the bill creating the state the same day, making Idaho our 43rd state, with, at that time, a population of 88,548.

The “Idaho Admission Bill” reads: “Therefore, Be it enacted by the Senate and House of Representative of the United States of America, in Congress assembled, That the State of Idaho is hereby declared to be a State of the United States of America, and is hereby declared admitted into the Union on an equal footing with the original States in all respects whatever; and that the Constitution which the people of Idaho have formed for themselves be and the same is hereby, accepted, ratified and confirmed.”

Idaho’s Declaration of Rights, forming the Constitution’s Article 1, borrows heavily from that of Virginia, which, as a Virginian, I find flattering. There are also many features copied from the U.S. Bill of Rights.

Some unique and interesting features of the Declaration include:

In Section 7, dealing with juries, only three-fourths of the jury is needed to render a verdict in civil actions, and in misdemeanors cases five-sixths of the jury can render a verdict.

Section 9 holds citizens responsible for abusing their right of free speech.

Section 11 prohibits any confiscation of firearms except when they are used in the commission of a felony.

Section 15 provides that there will be no imprisonment for debt in the state except in cases of fraud (i.e., no debtors prisons needed!).

In Section 19, the right of suffrage is guaranteed. “No power, civil or military, shall at any time interfere with or prevent [its] free and lawful exercise.”

Section 20 prevents any property qualification from being imposed on the citizens in order to vote “except in school elections, or elections creating indebtedness, or in irrigation district elections, as to which last-named elections the legislature may restrict the voters to land owners.

Section 22, added in 1994, contains an extensive list of the rights of crime victims. I couldn’t determine when this was added to the Constitution.

Finally, Section 23 of the Declaration of Rights, its final section, guarantees Idaho citizens the right to hunt fish and trap. “Public hunting, fishing and trapping of wildlife shall be a preferred means of managing wildlife.”

In the main body of the Constitution we find a few unique features.

Article 3, Section 20 prohibits gambling in the state, it being “contrary to public policy.” This prohibition does not extend to Indian tribal lands.

Section 24, entitled “Promotion of Temperance and Morality,” is interesting. It reads: “The first concern of all good government is the virtue and sobriety of the people, and the purity of the home. The legislature should further all wise and well directed efforts for the promotion of temperance and morality.” Wouldn’t it be nice if all states did this?

And in Section 28 we find the now ineffective statement: “A marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state.”

The Governor, Lieutenant Governor, Secretary of State, State Controller, State Treasurer, Attorney General and Superintendent of Public Instruction all hold their offices for a four year term. The Governor enjoys a line-item veto on appropriations bills, joining 43 other U.S. governors with similar powers.

Interestingly, the legislature must maintain a balanced budget and is prohibited from incurring any debt unless they do so by law and provide, in the authorizing legislation, a plan to pay off such debt within 20 years.

Article 9, dealing with education and school lands, begins with the declaration: “The stability of a republican form of government depending mainly upon the intelligence of the people, it shall be the duty of the legislature of Idaho, to establish and maintain a general, uniform and thorough system of public, free common schools.” (Emphasis added)

Idaho was early settled by Mormons, especially in its southeast sections. We may detect a bit of Mormon backlash in Section 6 of Article 9, when we read: “No sectarian or religious tenets or doctrines shall ever be taught in the public schools, nor shall any distinction or classification of pupils be made on account of race or color. No books, papers, tracts or documents of a political, sectarian or denominational character shall be used or introduced in any schools established under the provisions of this article, nor shall any teacher or any district receive any of the public school moneys in which the schools have not been taught in accordance with the provisions of this article.” Compulsory attendance is mandate between the ages of 6 and 18.

Article 10 provides that Boise shall be the state’s capitol, at least for the first 20 years, after which the state legislature can vote to move it elsewhere, something they have yet to get around to do. Incidentally, ever mindful of their natural resources, Idaho’s State Capitol building is the only one in the nation to be heated by geothermal water from a source 3,000 feet below the ground.[iv]

Article 14, dealing with the Militia makes “all able-bodied male persons, residents of this state, between the ages of eighteen and forty-five years,” a member of the militia, and requires that they “perform such military duty as may be required by law;” unless they have “conscientious scruples against bearing arms.”

Idaho has abundant streams and rivers, but getting precious water to arable lands takes an extensive network of irrigation canals. Not surprisingly, there is an extensive section of the Constitution devoted to “Water Rights.” (Article 15)

Taken in the whole, Idaho’s is a well-constructed Constitution, perhaps explaining why it has remained in force (albeit extensively amended) since 1890.

On March 25, 2016, the state carried on its tradition of being a gun-friendly state by legalizing the carry of concealed firearms without a permit.[v]

Oh, and Idaho’s Great Seal was designed through a contest won by Emma Edwards Green, apparently the only woman to design the official seal of a U.S. state.[vi]

Idaho’s current 1,754,208 residents[vii] wait to welcome you.

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

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[i] https://www.goldmapsonline.com/idaho-gold-rush-history-and-districts.html.

[ii] https://www.idaho.gov/about-idaho/history/.

[iii] https://sos.idaho.gov/elect/stcon/index.html.

[iv] https://www.history.com/topics/us-states/idaho.

[v] http://concealednation.org/2016/03/permitless-concealed-carry-in-idaho-passes-takes-effect-july-1st-2016/.

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

[vii] https://en.wikipedia.org/wiki/Idaho.

Guest Essayist: Gary Porter

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[10] Ratified on December 18, 1865.

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

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

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

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

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

Guest Essayist: Gary Porter

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

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

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

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

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

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

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

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

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

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

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

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

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

Why were the state constitutions still needed after the U.S. Constitution went into effect twelve years later? Simply because the formation of a new national government did not eclipse the state governments, in fact it relied upon the states to continue to provide the vast majority of governmental services within each state, which the Tenth Amendment to the U.S. Constitution obliquely reminds us: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”[11]

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

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

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

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

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

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

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

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

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

[2] Ibid.

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

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

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

[6] Lutz, p. 3

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

[8] 1686 Virginia Charter

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

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

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

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

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

 

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Short answer: It should be easy, but it’s not.

Article 1, Section 5, Clause 2 of the Constitution states:Each House may determine the Rules of its Proceedings….”  Because of this clause, we have different procedures in each house of Congress which determine how a bill will be handled in that chamber.  Both the rules of the House and those of the Senate are a matter of public record and may be downloaded from the respective chamber’s website.  There are both unique and common elements of the rules.  For instance, House Rule XII uniquely requires that every bill contain a paragraph describing the claimed constitutional authority for the action the bill proposes.  One would think this provision would deter a Congressman or Congresswoman from exceeding the limited and enumerated powers which the Constitution provides to the legislative branch, but one would be wrong.

When Rep. Dennis Kucinich (D-OH) proposed a bill that would create a “Department of Peace,” he famously cited the Preamble’s goal of “ensur[ing] Domestic Tranquility” as his authority.  Unfortunately for Rep. Kucinich, the Constitution’s Preamble does not grant power to any branch of government; the government has no explicit power to ensure “domestic tranquility,” it remains only a goal of the overall document.  To be sure, there are other powers explicitly granted to the Congress, such as the power to call forth the militia to “suppress Insurrections” that would serve this end, but, sadly, domestic tranquility will have to be achieved without Rep. Kucinich’s Department of Peace.  Representative Bill Pascrell (D-NJ) cited the Constitution’s Commerce Clause as the authority for his H.R. 1127, a bill “to encourage and ensure the use of safe football helmets.”  What Pascrell’s proposal had to do with interstate commerce was left unsaid.

The authors of House Rule XII had noble intent, but they presumed the people would elect Representatives who would take the rule seriously.

Over in the Senate we find the infamous “Filibuster Rule,” which requires the agreement of “3/5 of the Senators” (normally 60) before debate on a bill can be ended.  When neither of the two major parties enjoys a 60+ majority, the “Cloture Rule,” as it is also called, provides a convenient partisan blocking mechanism.  This rule was amended recently to expedite certain presidential nominations that were being stonewalled by one party.

Aside these and a few other differences, the basic process for getting a bill to the President’s desk for signature is essentially the same.  Some Congressmen place simplified descriptions of the process on their websites.  In brief, the bill is proposed by an individual member after he or she has either drafted it or had it provided by a constituent or lobbying group.  The bill is normally then sent to a Committee for consideration in the Chamber in which it was first introduced.  Depending on the bill’s complexity, it may be further referred to one or more subcommittees.  It is a poorly kept “secret” that bills lacking widespread popularity are sent to sub-committees to “die,” never to be put to a committee vote, let alone a floor vote.  For instance, of the thousands of constitutional amendments proposed over the years few ever made it to a floor vote and only 33 were ever sent to the states for ratification.

The committee may modify the bill’s wording after public hearings to improve its chance of surviving a floor vote and then they must pass it with a majority vote of the committee.  The bill is then sent to the majority leader of the originating chamber to be put on the chamber’s calendar for a vote of the entire chamber.  Here is another weakness in the process; the Speaker of the House and Senate Majority leader enjoy great power over what goes on their chamber’s calendar.  Both bills originating in their chamber or coming from the other chamber after a successful vote may languish for a very long time before appearing on the calendar; or they may never appear on the calendar.  There are periodic complaints over this practice.

Presuming a bill passes with a majority vote of each chamber, and any differences between the two versions of the bill have been resolved in a Conference Committee, the bill is sent to the President.

But here we must pause for a history lesson.

In 1776, Thomas Jefferson complained in his famous declaration that King George III had “refused his Assent to Laws, the most wholesome and necessary for the public good.”  Laws duly passed by the colonial legislatures and sent to the King often never received his signature and thus were never put into effect.  Some of these bills were no doubt “wholesome and necessary.”  The Framers of 1787 sought to solve this problem.  They set out to ensure the “people’s voice,” as reflected in the actions of their representatives, would never be muted.

Our constitution therefore does not require the President give his “assent” to a bill, at least not explicitly, before it becomes a law.  Many Americans erroneously believe the President must sign a bill before it becomes a law.  Not so.  He may sign it if he agrees with its purpose, or he may veto the bill.  He may also let it become law without his signature.  This will occur automatically 10 days after the bill has been presented to him (not counting Sundays, when the President was expected to be in church).  One caveat, if a bill is presented to the President and he does not have a full 10 days to consider it before Congress adjourns, it does not become law, but suffers what is called a “pocket veto.”

One final note: According to Article 2, Section 2, the President is required to “take Care that the Laws be faithfully executed;” i.e., he must carry out the “will of the people” as expressed in the new law passed by Congress, every part of it.  But what happens if the President objects to one teeny-weeny provision in a 2000+ page bill.  Must he veto the bill in its entirety over this minor flaw?  Perhaps he feels the provision exceeds the power of Congress or infringes upon executive privilege.  Enter: Signing Statements.

Signing Statements date back to 5th President James Monroe.  Although originally used as ways to express great satisfaction in signing a particular piece of legislation, today they provide the President the opportunity to express reservations over certain provisions of a bill without having to veto the entire thing.  Deputy Assistant Attorney General and future Supreme Court Justice Samuel A. Alito raised quite a stir when he published an 1986 memo entitled: Using Presidential Signing Statement[s] to Make Fuller Use of the President’s Constitutionally Assigned Role in the Process of Enacting Law in which he stated bluntly that Presidential Signing Statements could be used to “increase the power of the Executive to shape the law.”

“Getting a bill from introduction in Congress to the President’s desk” is clearly not as easy as it could be or should be.  We have the rules of Congress to blame for that; and as long as the Constitution gives Congress the complete power to compose their rules as they see fit, there is little hope for change any time soon.  If the American people want streamlined procedures for passing legislation, they must demand it of Congress.  Concerted demands will be heard.  But do the American people ever act in concert?  Not often.  The only remedy which remains is to amend the Constitution in such a way that an expedited legislative procedure results. Congress, once again, is unlikely to ever propose an amendment which reduces in any way their power over legislation; thus it devolves to the people, through an Article V convention, to propose an amendment which would enact such a change.

If you want an easy process for getting legislation to the President’s desk, there is work to do.

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

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The election of Congress ought not be controversial, Americans have been electing their representatives in this country off and on for four hundred years.[1]  But of course it is quite controversial, made so by what’s at stake: raw political power.  Whichever political party controls Congress controls the most important and powerful branch of government.  While some Americans view the Executive Branch as the pre-eminent, most powerful branch of the three, even a superficial comparison shows this to be incorrect – Congress rules!

The “election method” of Congress has many facets: who is entitled to vote, how they vote, even such mundane things as how votes are counted (does a hanging chad count?).  As Madison reminds us: “the essence of government is power and power, lodged as it must be in human hands, will ever be liable to abuse.”[2] And abuse we have: election fraud is a problem and growing [3]despite charges by some that such claims are a myth.[4]

Popular elections by the people were so liable to abuse that the Framers discarded this method when considering the election of the President, and decided instead on “Electors chosen for that purpose.”  In Speaking of abuse, in 1777, James Madison lost the only election he would ever lose, to the Virginia House of Delegates, because he refused to provide Orange County voters with “spirituous liquors,” which his tavern-owner opponent could (and did) pour abundantly.

So let us consider first the question of who should be allowed to vote.

The Constitution presumes, but does not require, voting by the people.  It is difficult to see how voting could be supported as a natural, inalienable right, so it must therefore be a civil right, one subject to denial or change at the whim of the government.

The Founders are repeatedly denigrated today for not allowing women to vote; and while there is some truth to the claim, unmarried women were allowed to vote in some states as long as they met the property requirements of “freeholders.”  Why unmarried women only?

Under the English common law doctrine of coverture, the husband “covered” his wife’s legal identity throughout their marriage. Blackstone’s Commentaries described it this way:

By marriage, the husband and wife are one person in the law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing.

The husband’s vote was thus viewed as reflective of the interests of the entire family.

The amount of property a person must own to vote varied from state to state, but the prevailing notion supporting a property requirement was that this produced a polity with “skin in the game,” voters more likely to vote with care; their property potentially at jeopardy through a careless or ill-informed choice.

Today, property requirements for voting have been removed, and the franchise limited only by age and citizenship.  Which provides the basis for another controversy: why limit voting to citizens?  Shouldn’t, every tax-payer, whether citizen or not, whether in the country legally or illegally, be able to vote? Shouldn’t they also have a say, through the ballot box, in how their taxes are spent?  Many on the Left certainly think so.  Others see voting as not just a privilege, but a high privilege of citizenship.

“Let each citizen remember at the moment he is offering his vote that he is not making a present or a compliment to please an individual – or at least that he ought not so to do; but that he is executing one of the most solemn trusts in human society for which he is accountable to God and his country,” wrote Samuel Adams.[5]  (Emphasis added)

Our dismal voting participation rate, hovering as low as 37% in mid-term elections, vividly demonstrates the sense of hopelessness many feel when considering the effect their individual vote will likely have on the trajectory of the country.  Career politicians, acting in their own self-interest, are perpetually elected thanks to powerful moneyed interests; a recipe for disaster.

With a re-election rate of well over 90% it seems hard to believe that we have an entirely new House of Representatives every two years, but that is exactly what the Framers intended.  In fact, it has been said that a Representative is always running for office; no sooner does he or she catch their breath from the last (successful) campaign when they must start all over again with a new one.

Not so with the Senate; the Senate was intended to be the more stable and deliberative of the two houses of Congress.  Thus, the Senate does not change personnel en masse like the House; only a third of the Senators are up for reelection each time; and this was by design as well.

Although some today decry the filibuster rule in the Senate, I think a bigger problem to the long-term health of the republic lies in the fact that Senators are no longer appointed by their states.  Thanks to the 17th Amendment, Senators are elected by the people of the state and no longer vote in line with the interests of the legislature of their state as they once did.  This Amendment permanently shifted the intended balance of power in Congress, to the disfavor of the states which created the government in the first place.  To restore that balance of power will require the repeal of the 17th Amendment, and that proposal is shrouded in controversy.

It is important to the principle of self-government that there be continuity and stability in the Congress, and the initial Constitutional design was intended to produce just that.  But the original balance of power in Congress is equally important, and that deserves our attention today.

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

[1] The  first elected government was installed at “Jamestowne” in 1619.

[2] sSpeech in the Virginia constitutional convention, 1829

[3] See: http://dailycaller.com/2016/10/20/heres-what-voter-fraud-looks-like-in-23-states/

[4] See: https://www.brennancenter.org/issues/voter-fraud

[5] in the Boston Gazette, 1781.

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BenjaminRush.Peale3

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Another principle of the Rule of Law is that all laws should apply to all the people. “[W]here there is no law, there is no liberty; and nothing deserves the name of law but that which is certain and universal in its operation upon all the members of the community,” wrote Founder Benjamin Rush in a 1788 letter to David Ramsay. (Emphasis added) Do our laws apply to all?

It is not uncommon for Congress to exempt itself from complying with certain laws.[1] Congress has exempted itself from the Whistleblower Protection Act of 1989, the Freedom of Information Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, a key provision of the Patient Protection and Affordable Care Act and many others. Interpreting Benjamin Rush, do these laws deserve the name of law if they only apply to “ordinary Americans” and not the elite of Congress?

The Rule of Law should be the bedrock of our society; but this “bedrock” has the appearance today of shifting sand. If we expect the laws of our land to be respected, we must make them respectable, and the people who make such law must act respectably in doing so, using responsibly the power the people have delegated to them and them alone.

How did we reach this point?  I lay most of the blame on the American people. Our lack of knowledge of constitutional principles today is a plague upon our society. But it was not always so in this country. In 1835, Frenchman Alexis De Tocqueville visited America and noted: “… every citizen is taught…the history of his country, and the leading features of its Constitution.  … it is extremely rare to find a man imperfectly acquainted with all these things, and a person wholly ignorant of them is sort of a phenomenon.”[2]  Today, unfortunately, it is extremely rare to find an American citizen who can discuss features of his Constitution. In a recent poll, thirty-seven percent of Americans could not name a single right secured by the First Amendment.[3]

Our educational system is also partly to blame for not teaching these important constitutional principles. Due to our ignorance, we then send the wrong people to represent us in Washington. We choose the wrong representatives because we don’t know enough to ask the right questions as they run for office. Instead of asking them what they intend to do to “fix Washington,” we should first determine their view of law, the Rule of Law, and the role Congress should play in representing “We the People” in writing our laws.

We can return to an authentic and respectable Rule of Law in this country, but it will require some effort.  My suggestions:

  • Insist that Congress once again exercise the exclusive legislative authority they were intended to have. If Congress insists that certain proposed legislation exceeds their technical expertise, let executive branch agencies propose rules; but those rules must first be submitted to a vote of Congress before they can take effect. This change would not require a Constitutional amendment, only a rule change within Congress.
  • Require that every law passed by Congress applies to them – no exceptions. A “28th Amendment” has been making the rounds of the Internet the last few years. It reads: “Congress shall make no law that applies to the citizens of the United States that does not apply equally to the Senators and/or Representatives; and, Congress shall make no law that applies to the Senators and/or Representatives that does not apply equally to the citizens of the United States.”  Since it is unlikely Congress will make such a change voluntarily, a Constitutional amendment will likely be needed and such an amendment would likely only come from an Article V Convention.
  • Taking Madison’s warning to heart, the days of 2000-page bills should end. Bills should encompass a single topic and be limited to perhaps 100 pages, sufficiently short to be read in a single sitting.
  • The original Constitution established only four federal crimes: treason, bribery, piracy and counterfeiting. There are estimated today to be in excess of 4500 federal crimes.[4] It has been suggested that so many unknown crimes exist in the Code of Federal Regulations that every citizen violates at least one federal law each day, perhaps as many as three, making all of us potentially federal criminals should a federal prosecutor take interest in us.[5] This must stop.  There should be a methodical scrub of the CFR and antiquated, absurd or redundant federal crimes removed.[6]
  • We as a people should consider whether the principle of judicial precedent really serves republican purposes. A court’s opinion should be deemed to apply only to the two litigants in a case. When the Chief Justice of the Supreme Court charges that five of his colleagues have acted like a legislature, they should take note and change their behavior/opinion.

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

[1] See: https://nationalinterest.org/feature/congress-acts-its-above-the-law-23400.

[2] de Tocqueville, Alexis (1835). De la démocratie en Amérique. (1 ed.). Paris: Librairie de Charles Gosselin.

[3] https://www.washingtontimes.com/news/2017/sep/13/37-percent-of-americans-cant-name-any-of-the-right/.

[4] https://www.wsj.com/articles/SB10001424052748703749504576172714184601654.

[5] https://www.amazon.com/Three-Felonies-Day-Target-Innocent/dp/1594035229.

[6] You are a federal criminal if you denigrate the character of Woodsy the Owl or his motto: “Give a hoot, don’t pollute.”

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If it be asked, What is the most sacred duty and the greatest source of our security in a Republic? The answer would be, an inviolable respect for the Constitution and Laws — the first growing out of the last.[1]

Alexander Hamilton goes on to point out that: “The instruments by which [government] must act are either the AUTHORITY of the laws or FORCE. If the first be destroyed, the last must be substituted; and where this becomes the ordinary instrument of government there is an end to liberty!”[2]Where there is no respect for the law, where it has no authority, liberty ends — slavery begins.

“A Republic, if you can keep it,” cautioned Mr. Franklin. A key ingredient of this “keeping,” if Hamilton is to be believed, must certainly be a uniform respect for and obedience of the law. Said another way: the Rule of Law is the bedrock of our society.

But what does “Rule of Law” really mean? Would we know it when we saw it operating? Wikipedia answers: The rule of law is the principle that law should govern a nation, as opposed to being governed by decisions of individual government officials.”[3]

“[A] government of laws, and not of men,” is how John Adams put it.[4] But the phrase “Rule of Law” presumes we understand what law itself is. Do we?

“…[L]aw and liberty cannot rationally become the objects of our love” (or our respect, we might add) “unless they first become the objects of our knowledge,” states Founder James Wilson of Pennsylvania.[5] So as we begin this discussion of “The Meaning of the Rule of Law and its importance to the functions of Congress in representing the American people,” we should first examine what “law” itself is; what does it encompass? The answer is not as simple as some might suppose.

Noah Webster provides this founding-era definition of law: “A rule, particularly an established or permanent rule, prescribed by the supreme power of a state to its subjects, for regulating their actions, particularly their social actions.”[6] Many authorities point to the Code of Hammurabi (1754 B.C.) as one of the oldest written systems of law, predating even the Ten Commandments (~1513 B.C.), but “Be fruitful, and multiply, and replenish the earth, and subdue it,” God’s first oral commandment to man in Genesis 1:28, predates them both.

Even earlier came the Law of Nature. As Sir William Blackstone explains:

“For as God, when he created matter, and endued it with a principle of mobility, established certain rules for the…direction of that motion; so, when he created man, and endued him with freewill to conduct himself in all parts of life, he laid down certain immutable laws of human nature, whereby that freewill is in some degree regulated and restrained, and gave him also the faculty of reason to discover the purport of those laws.”[7]

As Blackstone argues, the Law of Nature should have been discoverable by reason and inquiry. Should have been. But man quickly showed a propensity for “missing it.”[8] God took action.

“[D]ivine providence… in compassion to the frailty, the imperfection, and the blindness of human reason, hath been pleased, at sundry times and in diverse manners, to discover and enforce its laws by an immediate and direct revelation. The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the holy scriptures.”[9] Ergo, the “Laws of Nature and [the Laws of] Nature’s God.”[10] Finally, along came civil laws, such as those of Hammurabi.

So there are three systems of law – natural law, revealed law and civil law — the last deriving its authority from the first. But is all civil law, “good” law? Does it automatically deserve our respect and obedience simply because it has been created by our duly elected representatives? What if in promulgating civil law a conflict is created with natural or revealed law? Frederick Bastiat answers:

“No society can exist unless the laws are respected to a certain degree, but the safest way to make them respected is to make them respectable. When law and morality are in contradiction to each other, the citizen finds himself in the cruel alternative of either losing his moral sense, or of losing his respect for the law—two evils of equal magnitude, between which it would be difficult to choose.”[11]

“Bad laws are the worst sort of tyranny,” said Englishman Edmund Burke.[12] The Roman historian Tacitus expressed a similar sentiment: “Formerly we suffered from crimes. Now we suffer from laws.” “[I]f the public are bound to yield obedience to laws to which they cannot give their approbation, they are slaves to those who make such laws and enforce them,” complained “Candidus” in the Boston Gazette on January 20, 1772. Finally, a civil law which contravenes natural law is either “spoilt law” (Thomas Aquinas)[13] or of “no validity” (Blackstone).[14] Clearly, not all laws are created equal.

Which brings us to Congress. We know from Article 1, Section 1, that the Constitution gives all legislative power to Congress. According to the separation of powers doctrine put forth by Charles-Louis de Secondat, Baron de La Brède et de Montesquieu (the most quoted philosopher of law at the Constitutional Convention), law-making is thus the legitimate purview of neither the Executive nor Judicial branches of government. That’s not the way things work today, but more on that later.

Congress, representing the people, makes laws for the government of the people. But it stands to reason that they should only make laws which reflect the will of the people and which are in the people’s best interest. That also does not always happen today.

Finally, Congress does not have the constitutional authority to make any old laws. According to James Madison, their legislative jurisdiction is (or was) limited “to certain enumerated objects.”[15]

The process by which Congress and the President turn a bill into a law is pretty well-known and will not be repeated here. I should point out, however, that one feature of that process, whereby a bill passed by both houses of Congress automatically becomes law unless vetoed by the President (in all but one circumstance), is a direct result of one of Jefferson’s complaints in the Declaration of Independence: [The King] has refused his Assent to Laws, the most wholesome and necessary for the public good.”[16] Today, we no longer need the assent of the “King” before a “wholesome and necessary” bill becomes law, it does so automatically at the end of ten days,[17] with or without the President’s signature.

Earlier I inferred that all was not well with our law-making process under today’s Constitution. Since that is an integral part of the Rule of Law, let’s take a closer look.

Despite the clear wording of Article 1 Section 1, Congress is today not the exclusive legislative body in the federal government. Executive branch agencies have been given the authority to promulgate “rules” which have the force of law. That they are called “rules” rather than laws is simply cosmetic: if you break a rule you will likely go to jail or be fined just as though you “broke the law.” This improper law-making does not take place in a dark alley somewhere, outside the cognizance of Congress; Congress in fact authorizes it. But this delegation of Congress’ law-making authority runs counter to this principle expressed by John Locke:

“For [the legislative power] being but a delegated Power from the People, they, who have it, cannot pass it over to others. . . . And when the people have said, We will submit to rules, and be govern’d by Laws made by such Men, and in such Forms, no Body else can say other Men shall make Laws for them; nor can the people be bound by any Laws but such as are Enacted by those, whom they have Chosen, and Authorised to make Laws for them.”[18]

This delegation of legislative authority to unelected government bureaucrats was challenged in 1989.[19] The Supreme Court, in an 8-1 decision (Justice Scalia was the lone dissent!), stated:

“… our jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives. Accordingly, this Court has deemed it “constitutionally sufficient” if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.” (emphasis added)

So Congress passes a skeleton of a law, containing some broad “general policy ,“ and says to the Executive Branch: “fill in the details.”

To guard against the equivalent of President John Adams’ “midnight judges,”[20] Congress gave itself the authority to overturn rules promulgated in the waning days of an outgoing administration; but they must use this authority within a certain “window of opportunity.”[21]

These rules are no small matter. They have bloated the Code of Federal Regulations to more than 175,000 pages and it has been calculated that they add more than $2Trillion to the annual cost of business in America[22] — a cost that is simply passed on to “we the consumer,” a consumer, it should be clear, who is oblivious to this breach of the separation of powers doctrine. Unless the Supreme Court one day overturns Mistretta, Executive Branch law-making is here to stay.

If the Executive Branch can make law, why not the Judiciary? Enter “judge-made law.” “Judge made laws are the legal doctrines established by judicial precedents rather than by a statute. In other words, [the] judge interprets a law in such a way to create a new law. They are also known as case law. Judge made laws are based on the legal principle “stare decisis” which means to stand by that which is decided.”[23] Judge-made law suffers the same defect as delegation to the Executive Branch: law created by other than our elected officials; law created by men and women unaccountable to the people.

“[T]his Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise ‘neither force nor will but merely judgment’….The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent.”[24]

Judge-made constitutional law would not be much of an issue if all Justices had a respect for originalism and the intent of the Framers and Ratifiers. Sadly, such Justices are in the minority.

Turning now to whether laws passed by Congress reflect the will of the American people we can point to the example of The Patient Protection and Affordable Care Act (PPACA). The PPACA, nicknamed Obamacare, was passed in 2010 by a Democrat-controlled Congress without a single Republican vote, and was triumphantly signed by President Obama. Public polls of the time consistently showed 60% or more of Americans opposed to the measure yet the 2000+ page bill was rammed through the Congress and became law through an act of pure partisan power. While subsidizing the cost of health care for some Americans who could previously not afford it, the poorly contrived bill, admittedly intended as a step towards a single-payer health-care system, has resulted in higher insurance premiums for most other Americans.

James Madison foresaw this situation:

“It will be of little avail to the people that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man who knows what the law is today can guess what is will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”[25]

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

[1] Alexander Hamilton, “Tully No. 3,” published in the American Daily Advertiser, August 28, 1794, found at https://founders.archives.gov/documents/Hamilton/01-17-02-0130.

[2] Ibid.

[3] Found at: https://en.wikipedia.org/wiki/Rule_of_law.

[4] John Adams, Novanglus No. 7, found at: https://thefederalistpapers.org/wp-content/uploads/2012/12/The-Novanglus-Essays-by-John-Adams.pdf.

[5] James Wilson, Lectures on Law, 1768, found at: http://www.constitution.org/jwilson/jwilson.htm.

[6] Noah Webster, American Dictionary of the English Language, New York: S. Converse, 1828.

[7] Sir William Blackstone, Commentaries on the Laws of England, 1765, Clarendon Press, Oxford, England. Introduction.

[8] See Genesis 4:8, for starters.

[9] Ibid. Book 1, Chapter 2.

[10] Thomas Jefferson, Declaration of Independence, July 4, 1776.

[11] Frederick Bastiat, The Law, found at https://americanliterature.com/author/frederic-bastiat/book/the-law/.

[12] Speech at Bristol, England, 6 September 1780.

[13] Saint Thomas Aquinas, Summa Theologica, I–II q. 95 a. 2.

[14] Sir William Blackstone, Commentaries on the Laws of England, Book 1, Chapter 2.

[15] James Madison, Federalist No. 14, 1787.

[16] Thomas Jefferson, Declaration of Independence, 1776.

[17] Not counting Sundays.

[18] John Locke, Second Treatise on Government, 1690.

[19] Mistretta v. United States, 488 U.S. 361 (1989).

[20] https://en.wikipedia.org/wiki/Midnight_Judges_Act.

[21] For more on the Congressional Review Act, see: https://fas.org/sgp/crs/misc/R43992.pdf.

[22] See: http://www.nam.org/Data-and-Reports/Cost-of-Federal-Regulations/Federal-Regulation-Executive-Summary.pdf.

[23] https://definitions.uslegal.com/j/judge-made-laws/.

[24] Chief Justice John Roberts’ dissent in Obergefell v. Hodges (2015).

[25] James Madison, Federalist no. 62, February 27, 1788.

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A Matter of Conscience: Henry J. Hyde, Congressman

“One of the great errors of modern politics is our foolish attempt to separate our private consciences from our public acts, and it cannot be done. At the end of the 20th century, is the crowning achievement of our democracy to treat the weak, the powerless, the unwanted as things? To be disposed of? If so, we have not elevated justice; we have disgraced it.” – Congressman Henry Hyde, speaking on partial-birth abortion.

“The right of conscience and private judgement is unalienable and it is truly the interest of all mankind to unite themselves into one body for the liberty, free exercise, and unmolested enjoyment of this right.” – Ezra Stiles (1727-1795).

“The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience by in any manner, or on any pretext infringed.” – James Madison, original draft of the First Amendment.

James Madison failed at his task of securing an explicit right of conscience in the Constitution.  Nevertheless, it is comforting today to encounter men and women of conscience.  Such was Henry J. Hyde.

Henry Hyde (April 18, 1924 – November 29, 2007) was an American politician best known for sponsoring an amendment, now bearing his name,[1]  which outlawed the use of federal funds in performing abortions.  Over the years, Congress altered the Hyde Amendment several times, but repeatedly passed it nevertheless.

Although the Hyde Amendment was immediately challenged in the courts, the Supreme Court upheld its constitutionality in Harris v. McRae.  The Court stated:

“The funding restrictions of the Hyde Amendment do not impinge on the “liberty” protected by the Due Process Clause of the Fifth Amendment held in Roe v. Wade, 410 U.S. 113, 168, to include the freedom of a woman to decide whether to terminate a pregnancy. . . .

Regardless of whether the freedom of a woman to choose to terminate her pregnancy for health reasons lies at the core or the periphery of the due process liberty recognized in Wade, supra, it does not follow that a woman’s freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices.”

On July 21, 2016, the Democratic Party of the U.S. issued its 2016 platform, containing, for the first time, an explicit call to repeal the Hyde Amendment.[2]  Seemingly in response, six months later on January 24, 2017, the House of Representatives passed H.R. 7, which, according to the press office of Speaker Paul Ryan, “makes the Hyde amendment permanent.”

For his steadfast opposition to abortion, after announcing his retirement from Congress in 2006, Representative Hyde was named a Papal Knight of the Order of St. Gregory the Great by Pope Benedict XVI.  After leaving office the following year, he received the Presidential Medal of Freedom, the nation’s highest civilian honor from President George W. Bush.  Hyde could not attend the award ceremony in person as he remained hospitalized after open-heart surgery, complications of which shortly led to his death at age 83. The Presidential Medal of Freedom citation read:

“A veteran, a lawyer, and a public servant, Henry Hyde has served his country with honor and dedication.  During his 32-year career in the House of Representatives, he was a powerful defender of life, a leading advocate for a strong national defense, and an unwavering voice for liberty, democracy, and free enterprise around the world.  A true gentleman of the House, he advanced his principles without rancor and earned the respect of friends and adversaries alike.  The United States honors Henry Hyde for his distinguished record of service to America.”[3]

“Veteran” referred to Hyde’s service in the U.S. Navy during WWII and his continued service in the Naval Reserve from 1946 to 1968, ending in command of a U.S. Naval Intelligence Reserve Unit in Chicago and retirement at the rank of Commander (O-5).

As a public servant, Hyde served first in the Illinois House of Representatives (1967-1974) including a stint as Majority Leader from 1971 to 1972, and then represented Illinois’ 6th District in Congress for the next 32 years, from 1975 to 2007.

Beyond the 1976 Hyde Amendment, Hyde is perhaps best known for his efforts in leading the impeachment of President Bill Clinton in 1998.  When the Lewinsky Scandal[4] first became public, Hyde apparently did not take calls to impeach Clinton very seriously; he considered the issue to one of be sexual misconduct and not a concern of Congress.[5] That changed after Clinton boldly lied to the House Judiciary Committee, stating that he had not had sexual relations with “Ms. Lewinsky” — with Hyde sitting before him as chairman of the committee!  Hyde skillfully led House “managers” in successfully passing an impeachment resolution and sending the case to the Senate for trial where, despite Hyde’s efforts as chief prosecutor, Clinton was acquitted of perjury and obstruction of justice charges. Hyde ended his closing argument in the Senate trial by stating:

“A failure to convict will make the statement that lying under oath, while unpleasant and to be avoided, is not all that serious…We have reduced lying under oath to a breach of etiquette, but only if you are the President…And now let us all take our place in history on the side of honor, and, oh, yes, let right be done.”

Once more, a call to conscience.

Over the years, Hyde also waged vigorous battles against flag-burning, doctor-assisted suicide, and same-sex marriage.  Speaking out about partial-birth abortion, Hyde eloquently stated:

“This is not a debate about sectarian religious doctrine or about policy options. This is a debate about our understanding of human dignity, what does it mean to be human? Our moment in history is marked by a mortal conflict between a culture of death and a culture of life, and today, here and now, we must choose sides.”

A graduate of Georgetown University, Hyde later earned his law degree from Loyola University Chicago, a Jesuit Catholic University. In 1947, Hyde married the former Jeanne Simpson. Together they had four children, who brought them four grandchildren. Jeanne died in 1992 and Henry soon married the former Judy Wolverton. No further children issued.

When Hyde died on November 29, 2007, Crisis Magazine began a collection of online condolences. They paint a picture of a remarkable patriot:

“… one of the rarest, most accomplished, and most distinguished Members of Congress ever to serve.”

“… one of the great leaders of America’s modern age.”

“…the most eloquent defender of the right to life who ever served in the United States Congress.”

“…the greatest Catholic statesman of our generation.”

“His courage should be an example for us all.”[6]

Perhaps this short bio should end, as it began, with the words of Congressman Henry Hyde:

 “When the time comes as it surely will, when we face that awesome moment, the final judgment, I’ve often thought, as Fulton Sheen wrote, that it is a terrible moment of loneliness. You have no advocates, you are there alone standing before God – and a terror will rip through your soul like nothing you can imagine. But I really think that those in the pro-life movement will not be alone. I think there will be a chorus of voices that have never been heard in this world but are heard beautifully and clearly in the next world – and they will plead for everyone who has been in this movement. They will say to God, ‘Spare him because he loved us,’ – and God will look at you and say not, ‘Did you succeed?’ but ‘Did you try?’”  –Congressman Henry Hyde, speech on abortion.

Amen.

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

[1] This “Hyde Amendment” should not be confused with the Hyde Amendment of 1997, which dealt with an entirely different matter.

[2] http://www.presidency.ucsb.edu/papers_pdf/117717.pdf

[3] https://georgewbush-whitehouse.archives.gov/news/releases/2007/11/20071105-7.html

[4] https://en.wikipedia.org/wiki/Clinton%E2%80%93Lewinsky_scandal

[5] Hyde had himself confessed to an adulterous affair that had taken place in the early 1960s before he entered public life, calling it a “youthful indiscretion[].”

[6] https://www.crisismagazine.com/2007/remembering-henry-hyde-2

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A Bill Of Rights Is What The People Are Entitled To … — The People Limit Their Government

“In questions of power,… let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.” Thomas Jefferson, 1798.

Sunday, 8 April 1787

Young “Jemmy” Madison, frustrated by what he had observed over the last six years, sat down at his writing desk in his New York City boarding room. After an unseasonably severe winter, the spring of 1787 was finally becoming pleasant. But Madison had little time to reflect upon the fair weather.

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Most Americans realize that the Declaration of Independence established our separation from Great Britain and that sometime later the U.S. Constitution established the U.S. Congress, the Legislative Branch of government, along with its sister branches: the Executive and the Judiciary.  But most Americans would be surprised to learn that the Congress, through the Constitution, has a connection to the Declaration of Independence as well.  Many view the two documents as separate and distinct; they were, after all, drafted eleven years apart by two different groups of men for different purposes.[1] But the U.S. Supreme Court has affirmed their connection; in Gulf, C. & S. F. R. CO. v. Ellis , 165 U.S. 150 (1897), the Court declared that while the Constitution was indeed the “body and letter” of our government, the Declaration was the “thought and spirit.”

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