Essay 11 - Guest Essayist: James D. Best

“That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it.”

The “right of the people to alter or abolish” their government is derived from our natural right to self-governance. The notion of self-governance is relatively new. In 1776, the world was ruled by royalty or warrior chieftains. Some upstart colonialists then penned the most revolutionary document in the history of man. Kings and queens no longer enjoyed a Divine Right to rule. Instead, the individual was now the one endowed by their Creator with certain unalienable rights. Like most revolutionary visions, this one didn’t suddenly spring onto the world stage. Baron de Montesquieu, John Locke, David Hume, Adam Smith, Thomas Paine, and many others had advocated that “consent of the governed” was dictated by the laws of nature and of nature’s God. Of course, not everyone accepted this concept—certainly not King George III or English nobility. It took seven years of warfare for the colonies to solidify their claim of self-governance.

“The infant periods of most nations are buried in silence, or veiled in fable, and perhaps the world has lost little it should regret. But the origins of the American Republic contain lessons of which posterity ought not to be deprived.” — James Madison

The Founders, however, were steeped in this incendiary idea. Self-governance had been part of their experience in the New World. The colonists were subjects of England, but a round-trip sail across the great Atlantic put three to four months between them and their king. Self-rule started with the Pilgrims. The Mayflower Compact began by pledging loyalty to King James, but then decreed that the colonists would

“combine together into a civil body politick, for our better ordering and preservation, and furtherance of the ends aforesaid: and by virtue hereof do enact, constitute, and frame, such just and equal laws, ordinances, acts, constitutions, and officers, from time to time, as shall be thought most convenient for the general good of the colony.”

Basically, the Mayflower Compact was a written statement declaring self-government in colonial America.

“under absolute Despotism, it is their right, it is their duty, to throw off such Government” —Declaration of Independence.

Geography may have allowed the early colonists to govern themselves, but it was the writings of the Enlightenment that declared that self-rule was a natural right. This grand idea eventually led to the Declaration of Independence, which asserted that it was the right of the people “to institute a new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.” This founding principle basically said that the people themselves held the power to form a new government at any time and in any shape that met their needs. It was a radical concept used to justify radical action.

The power to “institute a new government” also conveys the power to “alter or to abolish it.” The 1787 replacement of the Articles of Confederation with our Constitution is a historical example of this concept. Since that date, we have not seen a need to abolish our government because we have been able to alter it continuously with amendments, laws, and political movements.

Our government at the national level is not a direct democracy. (Half of the states allow ballot initiatives which, if passed by a majority of the voters, have the force of law.) Instead, we elect representatives to write laws and a president to administer those laws. When the people’s will is thwarted, regular elections give them the opportunity to dismiss their representatives and appoint new ones. As a further safeguard, our government theoretically only has powers delegated by the people, reinforcing the concept that power resides with the people, not political leaders. The principle of self-governance is echoed in the 9th and 10th Amendments to the United States Constitution.

As long as people believe their voices count, fair and honest elections prevent the more drastic action of abolishment. Revolutions are bred when people believe their voices go unheard, especially in periods of hardship.


James D. Best is the author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, Principled Action, Lessons From the Origins of the American Republic, and the Steve Dancy Tales.

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Guest Essayist: James D. Best

On the evening of February 27, 1860, New Yorkers paid an exorbitant twenty-five cents to listen to a commonplace politician from some prairie state. The man had a reputation as a storyteller extraordinaire. Everyone expected to be entertained; few took the speaker seriously as a presidential candidate. Abraham Lincoln had earned a modicum of fame due to his debates with Senator Stephen Douglas two years previously, but he had lost that race and most believed the fledgling Republican Party would never nominate a loser. In fact, many wondered how this roughhewn storyteller wangled an invitation to a lecture series meant to expose serious candidates to the New York elite? Homespun yarns might draw crowds in the bucolic West, but New York City demanded a more elevated style of speechmaking.

The Republican Party was new and had failed in running John C. Frémont, a national hero, for president in 1856. Lincoln’s chances of ascending to the presidency under the Republican banner were slight. Lincoln, of course, had other plans. That afternoon, he had his photograph taken by Mathew Brady, and he intended his evening speech to be historic. It was. Lincoln often said that the Brady’s photograph and his Cooper Union address propelled him to the presidency.

What was so great about his speech at the Cooper Union? It was earth-moving because it was highly unusual. It was a call for his party to stand on principle—God’s principles, the Founders’ principles, and the founding principle of the Republican Party—the abolition of slavery.

Lincoln wanted to debunk the Democrats’ claim that the Founders would have supported the extension of slavery into the territories, so he presented a scholarly review of the voting records of the Constitution’s thirty-nine signers, showing that twenty-one of them had voted for bills restricting slavery in territories, and sixteen had left no record. Only two had made votes that supported the Democrats’ contention.

His speech had started slow, but as it picked up momentum, the energy in the hall lifted until the excited audience waited on the edge of their seats for the next opportunity to clap, yell, and bang out a rhythm with their shoes. Lincoln gave them plenty of opportunities. Below is a highly abridged selection from his speech.

We hear that you will not abide the election of a Republican president! In that event, you say you will destroy the Union; and then, you say, the great crime of having destroyed it will be upon us!

That is cool. A highwayman holds a pistol to my ear, and mutters through his teeth, ‘Stand and deliver, or I shall kill you and then you will be a murderer!’

What the robber demands of me—my money—is my own; and I have a clear right to keep it; but my vote is also my own; and the threat of death to me to extort my money and the threat to destroy the Union to extort my vote can scarcely be distinguished.

What will convince slaveholders that we do not threaten their property? This and this only: cease to call slavery wrong and join them in calling it right. Silence alone will not be tolerated—we must place ourselves avowedly with them. We must suppress all declarations that slavery is wrong, whether made in politics, in presses, in pulpits, or in private. We must arrest and return their fugitive slaves with greedy pleasure. The whole atmosphere must be disinfected from all taint of opposition to slavery before they will cease to believe that all their troubles proceed from us.

All they ask, we can grant, if we think slavery right. All we ask, they can grant if they think it wrong.

Right and wrong is the precise fact upon which depends the whole controversy.

Thinking it wrong, as we do, can we yield? Can we cast our votes with their view and against our own? In view of our moral, social, and political responsibilities, can we do this?”

Let us not grope for some middle ground between right and wrong. Let us not search in vain for a policy of don’t care on a question about which we do care. Nor let us be frightened by threats of destruction to the government.”

Prolonged applause kept Lincoln silent for several minutes before delivering his final sentence.

“Let us have faith that right makes might, and in that faith, let us, to the end, dare to do our duty as we understand it!”

When Lincoln stepped back from the podium, the Cooper Union Great Hall exploded with noise and motion. Everybody stood. The staid New York audience cheered, clapped, and stomped their feet. Many waved handkerchiefs and hats.

Great leaders speak and act on principle. People will not only follow a principled leader; they will labor mightily in a principled cause.

Abraham Lincoln went on to win the Republican nomination, the presidency, the Civil War, and the abolition of slavery.

Click here to read the text of Abraham Lincoln’s Address At Cooper Union.

(To learn more, I recommend Lincoln at Cooper Union by Harold Holzer.)

James D. Best, author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, Principled Action, Lessons From the Origins of the American Republic, and the Steve Dancy Tales.

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Guest Essayist: James D. Best
Fifth, Second and First Constitutional Amendments with gavel

On September 25, 1789, the First Congress sent a group of amendments to the states for ratification. Seventeen amendments had been approved by the House, the Senate trimmed the list to twelve, and ten ended up being ratified by the states to become our revered Bill of Rights. With Virginia’s ratification on December 15, 1791, the first ten amendments were incorporated into the supreme law of the land.

Bills of rights were not new at the time of the Founding. The 1215 Magna Carta, the 1689 English Bill of Rights of 1689, and many American states had previously enacted declarations of rights into their state constitutions. Although the original Constitution did not include a Bill of Rights, the base document included a few rights interspersed throughout the text. Writ of habeas corpus could not be suspended—except when the country was under attack; no bill of attainder or ex post facto law could be passed at the national or state level; Americans were guaranteed a jury trial for criminal cases; there could be no religious test for federal office; no state law could impair the obligation of contracts; and the citizens of each state were entitled to the privileges and immunities of the citizens of every other state.

Individual rights were not a significant issue during the Constitutional Convention, but a Bill of Rights certainly became a major issue during ratification. The clamor for a Bill of Rights was an antifederalist political weapon against ratification. For many antifederalists, the real objection was that the Constitution gave too much power to the national government. This argument floundered, while a demand for a bill of rights gained enormous traction, so prominent anti-Federalists made vocal and repeated demands for a Bill of Rights.

Despite the clamor for a Bill of Rights, most Federalists continued to insist that one was not needed because the national government’s powers were restricted, and most state constitutions already possessed declarations of rights. As Hamilton explained in Federalist 84, “Why declare that things shall not be done which there is no power to do?”

James Madison’s support for a bill of rights became crucial. At first, he objected, then became unsure, and finally became a forceful advocate. He came to believe that a Bill of Rights had become a political necessity. In his speech on June 8, 1789, he said, “It may be thought all paper barriers against the power of the community are too weak to be worthy of attention … yet, as they have a tendency to impress some … it may be one mean to control the majority from those acts to which they might be otherwise inclined.” Madison became a strong advocate for these amendments, but as these words reflect, he remained ambivalent philosophically.

Despite a modern perception that the first ten amendments bestow rights, it’s clear that the Bill of Rights is really a list of government prohibitions. The Founders did not believe in government benevolence and would never have accepted government as the arbiter of rights. Here are some of the restrictive clauses used in the first eight amendments:

Congress shall make no law

shall not be infringed

without the consent

shall not be violated

nor shall be compelled

the accused shall enjoy

nor be deprived

no fact tried by a jury, shall be otherwise re-examined

shall not be required

These phrases make clear that the Bill of Rights is a restraining order issued by the people against the national government. Natural rights are endowed by the Creator and the government is enjoined from interfering with these rights.

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” –Declaration of Independence

Because the Founders feared that a Bill of Rights might impede liberty due to sins of omission, the 9th Amendment provided that, “The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage other rights retained by the people.” The 10th Amendment further stated that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

These simple fifty words encapsulated the political philosophy of the Founders. Rights are not bestowed by the government, they are “endowed by their Creator” and reside with the people, and liberty depends on government operating within the restriction of enumerated powers delegated by a sovereign people.

Through the years, this sound philosophy has been diminished. The Supreme Court has succeeded in setting itself up as the arbiter of rights. So much so, many people have come to view government—specifically the Supreme Court—as the grantor and guarantor of rights. As the 9th Amendment states, rights exist that are not included in the first eight amendments, but the proper way to secure these rights from government interference is through laws at the state or national level or through the amendment process.

James D. Best, author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, Principled Action, Lessons From the Origins of the American Republic, and the Steve Dancy Tales.

Guest Essayist: James D. Best
Signing of the Constitution - Independence Hall in Philadelphia on September 17, 1787, painting by Howard Chandler Christy, on display in the east grand stairway, House wing, United States Capitol.

James Madison took extensive notes during the Constitutional Convention. Monday, September 17, 1787 would be his last entry because the signing ceremony would be the final act of the convention. Many had doubted that the day would ever arrive.

For four months, delegates had been locked in a hot, closed room full of sweaty overdressed men. Swarms of horseflies frequently added to the discomfort that had heightened disputes. Acrimonious would be a polite description of the proceeding. Despite the hardships and ill-temper, the delegates stayed and stayed until they eventually hammered out a compromise they could accept.

A reverential spirit suffused the assembly that Monday. The chamber remained hushed as the secretary read the engrossed constitution in its entirety. At the conclusion, Franklin gave a short speech before declaring, “I move the constitution signed.”

Washington formally called on the delegates to sign the Constitution. For this momentous occasion, the secretary had set out the Syng inkstand used to sign the Declaration of Independence. Washington walked around the green baize-covered table to sign first. He then called the states from north to south. The delegates remained silent and respectful as they approached the low dais to apply their signatures to a document they hoped would permanently bind the country. Ratification was far from a certainty. As one of the delegates pointed out, the country remained at May 25th while the delegates had evolved through endless debates until they reached a consensus. When revealed to the general populous, the Constitution would come as a surprise.

Two Benjamin Franklin anecdotes have symbolized the ceremony for countless generations. Both are documented. The first appears in Madison’s notes and the second is described in the diary of Dr. James McHenry, one of Maryland’s delegates to the Convention.

Despite his illness, Franklin had remained standing after he signed, shaking hands with delegates and whispering an occasional aside.

While the last members were signing, Franklin raised his voice. “Gentlemen, have you observed the half sun painted on the back of the President’s chair? Artists find it difficult to distinguish a rising from a setting sun. In these many months, I have been unable to tell which it was. Now, I’m happy to exclaim that it is a rising, not a setting sun.”

Once the last signature was in place, everyone was anxious to leave the chamber that had dominated their life for so many months. Besides, one of the delegates was hosting a celebratory dinner at the City Tavern.

Because of the momentous day, an enfeebled Franklin had abandoned his rented prisoners who normally carried him to and from the chamber. He insisted on walking out of the State House. Washington took a point position in front of Franklin, who was helped by delegates at each elbow.

As the sentries threw open the doors, the delegates were assaulted by bright sunlight and a deafening roar. Hundreds of people cheered, clapped, and whistled at the sight of General George Washington framed by the great double doors of the State House. The sentries had skipped down the three steps and joined arms to hold back the surge of people. A rambunctious session on Saturday had informed Philadelphians that the convention had concluded its business.

As Franklin followed in Washington footsteps, the people continued to cheer and applaud. A woman leaned in to yell, “Dr. Franklin, what is it to be? A republic or a monarchy?”

His answer came in a firm, loud voice. “A republic—if you can keep it.”

James Madison wrote, “The infant periods of most nations are buried in silence, or veiled in fable, and perhaps the world has lost little it should regret. But the origins of the American Republic contain lessons of which posterity ought not to be deprived.”

Throughout history, new nations have come into being because of conquering armies, internal rebellion, or the edict of a great power. Although the United States of America was conceived in revolt, our governing institutions were born in calm reason. Our Constitution comes from a convention and ratification process where reasoned debate eventually led to a decision by a large segment of the population to put a new government in place.

The Founding of this great nation was unique. Until 1776, with a few brief exceptions, world history was about rulers and empires. The American experiment shook the world. Not only did we break away from the biggest and most powerful empire in history, we took the musings of the brightest thinkers of the Enlightenment and implemented them. Our Founding was simultaneously an armed rebellion against tyranny, and a revolution of ideas—ideas that changed the world.

That is why we still care about America’s founding and the Framers of our Constitution.

James D. Best, author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, Principled Action, Lessons From the Origins of the American Republic, and the Steve Dancy Tales

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Guest Essayist: James D. Best


“Governments are instituted among Men, deriving their just powers from the consent of the governed.” —Declaration of Independence

In 1776, the world was ruled by royalty. Then some upstart colonialists penned the most revolutionary document in the history of man. The Declaration of Independence flipped the world upside down. The Divine Right of Kings became the consent of the governed. The individual was now “endowed by their Creator with certain unalienable Rights.” This was a world-shattering concept.

The people were now in charge. Our national heritage is a written constitution that sets the rules for governance between the people and their elected representatives. When Pilgrims landed at Plymouth, they almost immediately sat down and wrote a constitution called the Mayflower Compact. When our forefathers wanted independence, they felt a need to express their grievances and philosophy of government in a written Declaration of Independence.  At the time of the Constitutional Convention, all thirteen states had written constitutions.

Prior to the United States Constitution, monarchies wielded general power, and since the Founders had just escaped a monarchy, they would give their national government only defined powers. If a specific power was not expressly listed in the Constitution, then that power remained with the people who could further delegate powers to the state through a state constitution.

Nebraska Constitution

Nebraska was admitted to the union after the Civil War, on March 1, 1867, based on the organic law of 1866. Nebraska adopted their constitution on June 12, 1875, eight years after becoming a state.

The preamble reads, “We, the people, grateful to Almighty God for our freedom, do ordain and establish the following declaration of rights and frame of government, as the Constitution of the State of Nebraska.”

The Nebraska preamble diverts from the United States Constitution preface by calling out “Almighty God” and putting rights ahead of the “frame of government.” Nebraskans gave priority to rights, both in the preamble and organization of the document. The United States Constitution did not initially include a bill of rights and never directly referenced God. (Ratification, however, depended on a promise to immediately amend the Constitution with a list of rights.)

After amendments, the Nebraska State Constitution has the following characteristics:

  • Nebraska legislature is unicameral and nonpartisan. (Unique in the United Sates)
  • Limited to 49 seats. (Smallest legislature in United States.)
  • The legislature is part-time and pays $12,000 per year. Some contend that this make it difficult to find good candidates. Many must drive long distances in bad weather or find temporary lodging in Lincoln. As a result, legislators tend to be wealthy or retired.
  • Nebraska allows a split in the state’s allocation of electoral votes in presidential elections. (Maine is the only other state.) Since 1991, two of Nebraska’s five votes are awarded to the winner of the statewide popular vote and three go to the candidate with the highest vote in each congressional district.
  • The Nebraska Legislature can override the governor’s veto with a three-fifths majority. (36 states require a two-thirds vote)
  • Nebraska has amended their Constitution to provide for an initiative and referendum process. Nebraska’s initiative and referendum process can add or change law or amend the state constitution. Twenty-six states allow for initiatives or referendums and only sixteen states allow for constitutional initiates.

The Nebraska Constitution has been amended 228 times. On November 6, 1934, an amendment converted the legislature to unicameral. Georgia, Pennsylvania, and Vermont were originally unicameral, but all three switched to bicameral in the early nineteenth century. There were no unicameral legislatures in the United States until Nebraska switched. The amendment also reduced the number of legislators from 133 to 43 (since increased to 49).

What are the ramifications?

According to Patrick J. O’Donnell, long-time clerk of the Unicameral Legislature, the nonpartisan nature of the state’s legislative body remains apparent in several meaningful ways.

Legislative officers and committee chairs are elected by members themselves instead of appointed by partisan caucus leaders, and minority party members still do get elected to serve as committee chairs.

O’Donnell says that policy debates frequently tend to be less partisan in tone because of the unique nature of the Nebraska Unicameral and that final decisions are usually made on the merits of an issue rather than on the basis of political considerations alone.

Seventy-four years after its inception, the Nebraska Unicameral remains one-of-a-kind among U.S. state legislatures. O’Donnell says that other states have frequently visited Nebraska over the years to study the workings of the Unicameral, but so far at least, no other state has followed Nebraska’s lead. *

The Nebraska legislature generally has more power than other state legislatures. The unicameral nature removes an internal legislative check and the small size gives each member more authority than their counterparts in other states. Additionally, to override a governor veto requires only 60% of the legislature, rather than the 67% required for a two thirds majority.

The Nebraska Constitution is not controversial and state residents seem content with it. The only current issue deals with the wording of Section I-1, which reads, “There shall be neither slavery nor involuntary servitude in this state, otherwise than for punishment of crime, whereof the party shall have been duly convicted.” A 2020 ballot measure will eliminate the potential of slavery as punishment for crime. Nebraska does not use chain-gangs, so the change will have no practical effect.

The United States Constitution 10th Amendment reads, “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.” Many believe that powers not defined in the Constitution are reserved to the states. They forget the last two words of the amendment. State power, like national power, is delegated by the people to the respective governments within our federal system.

Politicians may need occasional reminders that all governmental power resides with the people.

*       Council of State Governments, A legislative branch like no other

James D. Best, author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, Principled Action, Lessons From the Origins of the American Republic, and the Steve Dancy Tales.

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Guest Essayist: James D. Best


DOLLAR LIMITATION.—The amount of the penalty imposed by this section on any taxpayer for any taxable year with respect to all individuals for whom the taxpayer is liable under subsection (b)(3) shall not exceed an amount equal to 300 percent the applicable dollar amount (determined without regard to paragraph (3)(C)) for the calendar year with or within which the taxable year ends.

There is a reason few legislators read laws before voting. They’re incomprehensible. The above snippet is only sixty-three of nearly four thousand equally confusing words prescribing the individual mandate for the Affordable Care Act. The total bill ran over one thousand pages. Do you blame Justice Antonin Scalia or House Minority Leader Nancy Pelosi for not reading the bill? This is a perfectly awful bill … and that may be the only perfect thing about it.

The ACA was not an anomaly. The Consolidated Appropriations Act, 2018, frequently called the 2018 omnibus spending bill, is 2,232 pages of similarly confusing text. No individual could possibly understand what’s in the bill.

In Federalist 62, James Madison wrote,

“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 it will be tomorrow.”

Forget ordinary citizens, how do we get lawmakers to understand pending legislation? The Affordable Care Act was 381,517 words, and that doesn’t count the innumerable referenced laws that would also need to be read for a full understanding. In comparison, our Constitution, the supreme law of the land, is only 4,543 words, which high school students can understand (as demonstrated year after year by Constituting America).

The ACA is only one example. Most legislation today is unintelligible. Congressmen and Senators rely on staff and lobbyists to write and then brief them on the content of laws.

Who benefits from laws “so incoherent that they cannot be understood?” Lawmakers, especially, the leadership. Big, heavy, humongous bills avoid accountability. No individual member of Congress can be saddled with responsibility for a vote disliked by his constituency because dozens of other desirable elements provide camouflage and/or shelter.

Despite calls for regular order, “read the bill” movements, and legislative review-time rules, comprehensive/omnibus style bills keep burying those of us who reside outside the beltway. There is an old axiom that laws are like sausages; it’s better not to see them made. But reverting to a bygone era of relatively responsible lawmaking will be difficult because getting reelected is easier when the proverbial sausage is concealed in a vast vat of stew. Politicians love to obfuscate.

How do we force easy-to-understand laws that lawmakers and law-abiding citizens can comprehend? By insisting Congress pass smaller, single issue bills. In the real world, point solutions are popular because they are doable … and results can be measured. If something needs fixing, focus legislation on the broken part, and leave the rest alone until the new law’s effectiveness can be assessed. If there are multiple broken parts, Congress should avoid a comprehensive redesign that allows everyone to get their fingers into the cookie jar. Address one issue at a time. For spending bills, we need to return to the days when Congress separated the required legislation into six or seven clear packages, and then adhere to strict deadlines for each step of the annual appropriations process.

Every elected legislator professes to agree with the above, but massive comprehensive/omnibus bills have become ever more prevalent. If We the People want simpler, single-issue laws, then pressure must be applied to Congress. We need to keep in mind that Congress feels content with the current process, so we shouldn’t demand some kind of grand solution. The big fix will never happen. Let’s start simple, with a single category of law. The Consolidated Appropriations Act, 2018 provides a perfect opening. The president has stated that he would not sign another omnibus appropriations bill, so voters need to hold him to his promise. Tell lawmakers that we support the president’s pledge. The current spending bill funds the government for the remainder of the fiscal year – through September 30.

How convenient. Mid-term election occur on November 6, a mere six weeks after the next appropriations bill.

Voters need to hold everyone to their word.

James D. Best, author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, Principled Action, Lessons From the Origins of the American Republic, and the Steve Dancy Tales.

Guest Essayist: James D. Best


The Framers interminably debated every little detail of the Constitution. Did they end up getting it right? The Civil War indicates they may have.

Nothing puts stress on government more than war. Especially, a civil war. Superficially, the Confederate Constitution appeared very similar to the United States Constitution. However, there were differences. The Confederate Constitution openly used the word slavery, where the Framers adopted the euphemic, “other persons.” Many of the Framers abhorred slavery and refused to see it referred to outright in the language of the Constitution. The Confederacy made more than semantic changes. In their minds, they corrected errors they felt were decided improperly seventy-three years prior. Some of these, arguably, contributed to the South losing the War for Southern Independence.

In Philadelphia, the Framers argued numerous times over the proper length of term for the president. Some wanted a short term with re-electability, others wanted a long term with no re-electability. The Constitutional Convention settled on a four-year term with unrestricted re-electability, which the Twenty-Second Amendment limited to two terms. The Confederate Constitution adopted a six-year term with no re-electability.

In 1787, most southern delegates to the Constitutional Convention believed the executive should be nonpolitical, so when they had a chance to write their own constitution, they gave the president the liberty to abstain from politicking. With an above-the-fray executive, they then felt comfortable giving the president more power. Under the Confederate Constitution, the president had a line-item veto and Congress, without a two-thirds majority, could not appropriate money unless requested by the president. In essence, this shifted the power of the purse from Congress to the president.

Jefferson Davis never ran for president. He was selected for one six-year term and, for the most part, ignored politics. Davis was an iconic figure for the Confederate cause, while at the same time, the public held Congress in low regard. Davis used the disparity in their respective reputations to neglect Congress. He did not host meals with congressional leaders, provide patronage, help legislative candidates, speak highly of people to the press, or support bills sponsored by powerful legislators. He openly displayed impatience with people who disagreed with him. As an indicator of Davis’ distain for Congress, he wrote, “Now when we require the brains and the heart of the country in the legislative halls of the Confederacy and of the States, all must have realized how much it is otherwise.” A Charleston Mercury reporter wrote, “He regards any question put to him by Congress as a presumptuous interference in matters which do not concern them.”

Lincoln did not have that luxury. The U.S. Congress constantly challenged his war decisions. The Joint Committee on the Conduct of the War, commonly referred to as the War Committee, used oversight powers to wield a potent check on the executive branch. The committee investigated battle defeats, war profiteering, Confederate atrocities, and generally stuck its nose in wherever it wanted. Members often leaked testimony and criticisms to the press, which caused distrust in the War Department and the Union Army. While the Confederate Congress met in secret, the Union Congress broadcast its proceedings at the top of its lungs.

Presidential politicking of congress was one of the great differences between the Union and Confederate governments, but did this affect the outcome of the war? Perhaps, and perhaps significantly.

Lincoln smooched Congress to get legislation passed, appropriations approved, and to garner support for reelection. It may not have felt good to Lincoln at the time, but this constant politicking brought many more minds to the task, built comradery, provided a vent for mistakes, and may have tamped down some ill-conceived moves. The War Committee harangued Lincoln and his cabinet throughout the conflict, but by acting as the catalyst for aggressive debate, the committee may have helped win the war. It certainly caused Lincoln to think long and hard about what needed to be done and how he would get various factions behind his proposed actions.

Near the end of the war, Lincoln won reelection and enjoyed substantial popularity in government and the states that remained in the Union, while the Confederate Congress tried to force President Davis to replace his entire cabinet, stripped him of his commander-in-chief authority, and threatened a vote of no confidence. By this time, of course, a Union victory had become obvious, affecting the respective reputations of the presidents. But Davis has gone down in history as cantankerous, aloof, and averse to taking advice. Perhaps if he had been required to build relationships with the other people in government, the South could have leveraged their early victories to achieve a different outcome.

Did the hyper-political Abraham Lincoln have an advantage over the standoffish Jefferson Davis? Probably. An engaged president knows the thinking of other players and can more easily leverage strengths and mitigate weaknesses. If this be the case, then the Founding Fathers got it right when they settled on a short presidential term with re-electability.

James D. Best, author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, Principled Action, Lessons From the Origins of the American Republic, and the Steve Dancy Tales.

Guest Essayist: Scot Faulkner


The definition of a Midterm Election is that it is held mid-way through the term of the President.  While not on the ballot, the President’s electoral mandate and actions to fulfill that mandate, are validated or challenged by voters as they elect members of the Legislative Branch.

Midterms were created as the solution to a fundamental issue in the founding of America:

What is the balance between responsive and responsible government?

The authors and advocates of the U.S. Constitution wrestled with this balance.

On the one hand, Alexander Hamilton and James Madison, writing as “PUBLIUS”, asserted in their essays advocating for the ratification of the U.S. Constitution, that frequent elections guaranteed Congress’ elected Members responding to the will of the people.

Federalist No. 52:

“First. As it is essential to liberty that the government in general should have a common interest with the people, so it is particularly essential that the branch of it under consideration should have an immediate dependence on, and an intimate sympathy with, the people. Frequent elections are unquestionably the only policy by which this dependence and sympathy can be effectually secured…. It is a received and well-founded maxim, that where no other circumstances affect the case, the greater the power is, the shorter ought to be its duration.”

Guaranteeing responsiveness and accountability also needed to be tied to short terms in office.

Federalist No. 57:

“The House of Representatives is so constituted as to support in the members an habitual recollection of their dependence on the people. Before the sentiments impressed on their minds by the mode of their elevation can be effaced by the exercise of power, they will be compelled to anticipate the moment when their power is to cease, when their exercise of it is to be reviewed, and when they must descend to the level from which they were raised; there forever to remain unless a faithful discharge of their trust shall have established their title to a renewal of it.”

On the other hand, Hamilton and Madison worried that too frequent elections would create instability.

Federalist No. 62:

“The mutability in the public councils arising from a rapid succession of new members, however qualified they may be, points out, in the strongest manner, the necessity of some stable institution in the government. Every new election in the States is found to change one half of the representatives. From this change of men must proceed a change of opinions; and from a change of opinions, a change of measures. But a continual change even of good measures is inconsistent with every rule of prudence and every prospect of success. The remark is verified in private life, and becomes more just, as well as more important, in national transactions.”

Hamilton and Madison raised an issue they considered worse than instability – arbitrary and capricious public policy.  They sought a structural solution, “necessary as a defense to the people against their own temporary errors and delusions.” [Federalist 63]

Hamilton and Madison’s solution was to have two separate bodies within the Legislative Branch, one of which would have longer terms of service. “The proper remedy for this defect must be an additional body in the legislative department, which, having sufficient permanency to provide for such objects as require a continued attention, and a train of measures, may be justly and effectually answerable for the attainment of those objects.’ [Federalist 63]

The Senate, having six year terms for its members, would be a defense against,  “particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn.” [Federalist 63]

Hamilton and Madison cited the importance of deflecting transitory and ill-thought public passion throughout history. “What bitter anguish would not the people of Athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions? Popular liberty might then have escaped the indelible reproach of decreeing to the same citizens the hemlock on one day and statues on the next.” [Federalist 63]

They concluded that not only terms of service, but the cycles of elections would create the proper balance to assure responsive and responsible democracy: “when compared with the fugitive and turbulent existence of other ancient republics, very instructive proofs of the necessity of some institution that will blend stability with liberty.” [Federalist 63]

Their solution is embedded in the U.S. Constitution.

ARTICLE I; Section 3

1: The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, 3 for six Years; and each Senator shall have one Vote.

2: Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year;

The combination of having the entire Membership of the House of Representatives face the electorate every two years, and only a third of the Senate submit to re-election every two years created Midterm Elections.

Throughout American history, Midterm Elections have reshaped Presidential agendas, ended or launched new political movements, and marked watershed moments in the civic culture of the nation.

The 1858 Midterm, prior to American Civil War, showcased the fragmentation of the Democrat Party over slavery and catapulted the four-year-old Republican Party into becoming the dominant plurality faction in both the House and Senate.  Sixteen years later, Republicans lost 96 House seats and their majority in reaction to the Grant Administration scandals, and the mismanagement of Southern Reconstruction.

The 1894 Midterms heralded the reemergence of the Republican Party as a new dynamic force that would bring William McKinley to the Presidency in 1896.  The voters also blamed President Grover Cleveland for a major economic depression, leading to jobless workers marching on Washington demanding relief.  The Democrats lost 116 seats in the House, the largest defeat in history. Fourteen years later, splits in the Republican Party, especially the falling out between old allies, Theodore Roosevelt and William Howard Taft, triggered Republicans losing 57 seats in the House and 10 Senate seats.  This fragmentation worsened, leading to Woodrow Wilson winning the Presidency in 1912 with 42 percent of the popular vote in a three-way race.

The October 1930 Midterm reflected Americans reeling from the Stock Market Crash, facing a deepening Depression, and the collapse of trust in Republicans.  The Republican Party lost 49 House and 8 Senate seats.  The Republicans barely retained control of Congress by only two votes in the House and one in the Senate.  Their Midterm debacle set the stage for the 1932 election, when Republicans lost the White House for twenty years, and lost Congressional power for three generations.  Over the next 62 years, Republicans had ten years of intermittent rule in the Senate and led only two separate Congresses in the House.

America redefined itself in the 1994 Midterm elections.  President Bill Clinton had overreached on universal healthcare.  There was a revitalized Republican Party, fueled by Conservative Talk radio and the visionary leadership and aggressive tactics of Newt Gingrich. Democrats were shocked, losing 53 House and 7 Senate seats.  This brought Republican rule to the House for the first time since the 1952 election, a forty-two year hiatus.  Only one Republican Member had served in the previous Republican era – as a House page.

Since 1994, Republicans have dominated the Legislative Branch, even gaining 6 House and 2 Senate seats in the 2002 Midterm, in the wake of the 9/11 terrorist attacks.  Bush Administration unpopularity and Congressional scandals led to voters ending Republican rule in the 2006 Midterms.  President Obama’s policy overreach, Conservative Talk Radio, and the rise of digital and social media, brought Republican majorities back to the House in the 2010 Midterms and the Senate in the 2014 Midterms.

No matter the outcome of the 2018 Midterms, the wisdom of those who struck the balance between responsive and responsible government in the U.S. Constitution will once again be vindicated.

Scot Faulkner advises corporations and governments on how to save billions of dollars by achieving dramatic and sustainable cost reductions while improving operational and service excellence. He served as the Chief Administrative Officer of the U.S. House of Representatives. He also served on the White House Staff, and as an Executive Branch Appointee.


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Guest Essayist: James D. Best


James Madison wrote, “Ambition must be made to counteract ambition.” He and his fellow delegates enabled this objective by enumerating specific, balanced powers to each branch, and then purposely giving each branch checks on the other branches.

The phrase checks and balances has become so commonplace, it is often spoken as if it were a single word, but in the eighteenth century, the phrase represented two distinctly different concepts. John Adams may have been the first coin the phrase in his 1787 publication, A Defense of the Constitutions of Government of the United States, but balances and checks is the phrase used in The Federalist, and that is the sequence Madison would have thought appropriate. First balance powers between the branches of government, and then place checks on those powers so they may not be abused.

As the first three words of the Constitution assert, the Framers felt the American people should rule the government, not vice versa. Arguably then, congressional checks on the executive are the most important because House members and one-third of the Senate face election every two years, which should keep them attuned to the public mood.

So, what powers and checks did the Framers give Congress to preclude the president from becoming king?

  • The Constitution gives the power to make laws solely to Congress. Constitutionally, the president can only enforce laws made by Congress. Recent history has seen an erosion of this check on executive powers. Congress gave away a good portion of its authority by passing vague laws which allowed the regulatory state to craft the details that determine what is legal and what is against the law. The Congressional Review Act of 1996 allows Congress to overrule an agency regulation, but it must be done within sixty days, and if the president vetoes the overruling, then congress must override the veto. Congress has also failed to curtail the abuse of executive orders that effectively make or alter laws. Stretching the concept of discretionary prosecution also weakened the lawmaking authority of Congress.
  • Congressional power of the purse is the strongest check over the executive. The amount of money Congress appropriates determines what the executive branch can do and how much of it they can do. Congress eroded this power by ceasing to debate and pass individual appropriations bills. Instead, they pass omnibus packages and continuing resolutions, which aggregate spending decisions to obscure accountability.
  • An axiom of Washington is that personnel is policy. Senate approval of appointees remains a potent congressional check on the president. When in disagreement with the president, Congress can withhold or delay approval of the leadership in the executive branch. Since threats to withhold funding have become mainly bluster, approval of appointments has taken on more significance.
  • Foreign policy is an executive prerogative, but the Framers intended senate approval of treaties to check questionable international agreements. Recent use of a “nonbinding agreement” have effectively circumvented this check. A second, obviously weakened congressional foreign policy check is the authority to declare war.
  • Other congressional checks on the president include a veto override provision; approval of appointment to fill a vice presidential vacancy, and a requirement that the president deliver to Congress a State of the Union message. From a practical perspective, these do not seriously impair a president.
  • The ultimate congressional check on the executive is impeachment, but in the nation’s history, there have been only two impeachments and zero convictions.
  • That leaves the most powerful check of all. One that is unmentioned in the Constitution. To make new law, Congress must know how existing law is administered. This requires Congress to examine the operational side of the executive branch. This power is called congressional oversight, and although not enumerated in the Constitution, the Supreme Court has confirmed this implied power on several occasions. Investigative powers may now be the most important congressional check on the executive branch, but even this prerogative has been eroded in recent history by delay, redaction, and defiance of congressional subpoenas. Even a contempt of congress resolution has been brushed aside as little more than an embarrassment.

The Framers knew the country needed a stouter government than the Articles of Confederation provided, but they had only recently fought a war to escape a king and had no intention of reimposing that kind of oppressive power on the new nation. The country needed a stronger government, but not so strong it could override the will of the people. Instead of a Goldilocks government, they balanced power and designed an elaborate set of checks so government could govern adequately, but Lilliputian ropes would harness it from trampling the little people.

Gouverneur Morris, the most frequent speaker at the Constitutional Convention, said, “This magistrate is not the king. The people are the king.” Despite an artful internal design, the Framers intended the ultimate check on the national government and the executive to be the people. The ballot box is still a potent check on runaway power.

Alexander Hamilton said in Federalist 21,

The natural cure for an ill-administration, in a popular or representative constitution, is a change of men.

John Adams wrote,

There is a simple sense in which at every election the electorate hold their representatives to account, and replace those who have failed to give satisfaction. This fundamental check is, we might say, the essence of the liberty to be found in representative government.

James D. Best, is the author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, Principled Action, Lessons From the Origins of the American Republic, and the Steve Dancy Tales.

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The Constitution is comprised of seven articles. Article I defines the powers of the Legislature, Article II defines the power of the executive, and Article III defines the powers of the judiciary. The remaining short articles handle everything that didn’t fit within branch powers.

In the closing days of the Federal Convention, now called the Constitutional Convention, the Committee of Detail delivered twenty-three disjointed sections to the Committee of Style. Gouverneur Morris volunteered to edit the language of the resolutions. He also consolidated the sections, organized the presentation, and prepared a preamble. He wrote with such consummate skill that his words have reverberated through time and distance. Morris took the clumsy and perfunctory preamble from the Committee of Detail and crafted a beloved fifty-two words opening that may be the most important sentence in political history.

Morris cannot take credit for “We the people,” but he can take credit for “We the People of the United States.” The Committee of Detail preamble used “We the people of the States of …” and then listed all thirteen states.

During the convention, Morris argued for a strong executive. Only Alexander Hamilton may have been a stronger nationalist. As the “Penman of the Constitution,” he could have started with executive powers to emphasize the powers of the president. He did not. Why? Four considerations may have led him and the Committee of Style to list legislative powers first.

  1. The Congress under the Articles of Confederation sanctioned the Federal Convention.
  2. The Federal Convention needed Congress to forward the Constitution on to the state ratification conventions.
  3. People would be more comfortable with a strong executive after they saw legislative checks on executive powers.
  4. Congress would be the first branch of the new government. It would validate the election of the president, who would then nominate justices to the Supreme Court.

Congress sanctioned the Federal Convention to recommend amendments to the Articles of Confederation. Instead, the convention invented an entirely new system of government. The convention’s sole claim to legitimacy came from Congress, and they had to get by this same body to ratify the Constitution. Despite popular misperception, the Constitutional Convention did not “ordain and establish” the Constitution. It took independent conventions in each state to accomplish that herculean task. These first two considerations required the Framers to show deference to the old Congress.

Vast presidential powers terrified early Americans. They had first-hand experience with an autocratic executive, and knew from bloody experience that it was difficult to break free from oppressive. The Articles of Confederation were sickly, but a strong president would be hard medicine to swallow. In the design, the Framers insisted on balanced power between the branches, with each branch possessing potent checks on the other branches. Safety through what we call checks and balances. Delegates to the state ratification conventions had not participated in the four months of debate and compromise. This would be all new to them … and the rest of the nation. Legislative checks on the executive might overcome some of the apprehension surrounding a powerful executive.

The Committee of Style completed another vital task. They wrote an audacious letter to Congress that told them how to implement the new government. Not a trivial matter, and in many respects, much like the chicken and egg question. Under these instructions, the sequence of the branches taking oaths of office is the same as listed in the Constitution. The letter states, “the United States in Congress assembled should fix a Day … the Time and Place for commencing Proceedings under this Constitution.” Thus, Congress first. “Senators should appoint a President of the Senate, for the sole Purpose of receiving, opening and counting the Votes for President” And President next, who would then nominate justices for the Supreme Court.

If the three branches are co-equal, then theoretically, it shouldn’t make any difference which branch is described first. Perhaps not for governance, but it made a difference in improving the atmosphere for ratification. The Framers understood that they did not possess the authority to make the Constitution the “supreme Law of the Land.” The Framers believed that power resided solely with the people, and now the people would judge their work. Would they approve? Determined and noisy opposition stood ready on the sidelines, eager to knock down anything that smelled of monarchy. The Framers were politicians. Gifted politicians. They knew the weaknesses of the Articles, the symmetry of the Constitution, and the mood of their countrymen. They took many measures to promote ratification. The sequence of the document may have been one more.

Why is the legislative branch listed first in the United States Constitution? To remove obstacles to ratification, to make acceptance easier, and to facilitate implementation.

Theodore White in his book, In Search of History wrote, “Threading an idea into the slipstream of politics, then into government, then into history… is a craft which I have since come to consider the most important in the world.” This was  the Framers gift … and it is a rare gift indeed.

James D. Best, author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, Principled Action, Lessons From the Origins of the American Republic, and the Steve Dancy Tales.

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The 2000 presidential election came down to who won Florida. Twenty-seven days after the election, the presidency remained undecided. Surrogates for George W. Bush and Al Gore clashed in a close-quarters fight that seemed to have no end.  Both parties persisted and refused to yield. The media filled nearly every broadcast moment and column inch of newsprint with the maneuvers and shenanigans of both parties. The pursuit of minutia, gossip, and a major scoop drove wall-to-wall reporting of the countless twists, turns, and skirmishes.

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District of Columbia v. Heller provided clarity to a long and quarrelsome debate about the application of the Second Amendment. The crux of the case was whether the right to “keep and bear arms” was an individual right or a collective right associated with regulated militias. The Supreme Court (5-4) ruled the Second Amendment an individual right.

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Guest Essayist: James D. Best

To stem home and farm foreclosures during the Great Depression, Minnesota passed a law which allowed a mortgagor to pay court-determined rent set below the contractual mortgage amount. The mortgage holder could not foreclose as long as the mortgagor paid the reduced rent.

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Guest Essayist: James D. Best


The election of 1860 would polarize the nation and challenge the durability of the Constitution. In 1787, the Constitutional Convention in Philadelphia established a new government for the United States of America. For over seventy years, the country had fought fierce political battles over slavery and federalism. Compromises, pacts, and informal precedents managed to hold the country together. This still-young nation would soon become engulfed in a savage civil war that would eventually complete the work begun in 1787.

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Guest Essayist: James D. Best


The Making of the President 1860—Mathew Brady and the Cooper Union Address

Abraham Lincoln won the 1860 presidential campaign, yet on a national level, he had served only a single term in the House of Representatives. He had gained renown from his famed debates with Senator Douglas, but remained a minor political figure. How did he make himself a viable candidate? He pulled off this feat in a single day—Monday, February 27, 1860.

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Guest Essayist: James D. Best


1856 Race for President—James Buchanan defeats Millard Fillmore and John C. Fremont

The political scene in 1856 was chaotic. The Whig Party had collapsed because of a regional dispute over slavery. The American Party (Know-Nothings) had scooped up Whig remnants to rail against immigrants and Catholics. The new Republican Party, formed to fight slavery, feverishly pulled together abolitionists from wherever they could find them. Democrats, the last functioning national party, worked hard to stifle their own riff between the free and slave states. These three parties, one wounded and two newborn, would fight for the presidency. A dubious prize since seven presidents in a row had served a single term or less.

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Guest Essayist- James D. Best


The First Presidential Campaign—George Washington, 1788-89

George Washington won the first presidency under the newly established Constitution. He ran unopposed, professed not to want the job, remained for the most part at Mount Vernon, and yet won unanimously. Many believe he never campaigned, but instead acquiesced to a call to duty from his countrymen. Perhaps it was not so simple.

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Americans abhor politicians who gather up inordinate powers. At least, that used to be the case. From our Revolution forward, Americans remained wary of any officeholder who tried to maneuver around constitutional limits. This was especially true if the trespasser happened to be a president.

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American citizens should never fear their own government. It’s Un-American. The Declaration of Independence directed our Founders to organize government powers “in such form, as to them shall seem most likely to effect their safety and happiness.” We should be able to go to bed at night feeling safe from hostile pounding on the door. The concept of the home as a safe refuge has been a key principle of Western Civilization going all the way back to the Roman Republic.

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“Governments are instituted among Men, deriving their just powers from the consent of the governed”  The Declaration of Independence used these words to legitimize our founding as a nation. Fifteen simple words, but they embodied a world-shattering idea. Kings supposedly derived their authority from God, but the Declaration declared that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” These subversive words flipped the divine right of kings on its head. Instead of kings, God endowed all of mankind with natural rights. Read more

The Founders believed that consolidating executive, legislative, and judicial powers would threaten liberty, so to avoid this tragedy, they built our constitutional framework with checks and balances. James Madison, the Father of the Constitution, wrote in Federalist 47 that “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

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The phrase checks and balances has become so commonplace that it is often spoken as if it were a single word, but in the eighteen century, it was two distinct concepts. John Adams may have been the first to put the words checks and balances together in that order in his 1787 publication, A Defense of the Constitutions of Government of the United States of America, but balance and check is the phrase used in The Federalist, and that is the sequence James Madison would have thought appropriate. First, balance powers between the branches of government, and then check those powers so they are not abused.

In his voluminous Constitutional Convention notes, Madison recorded himself as saying that he “could not discover … any violation of the maxim which requires the great departments of power to be kept separate and distinct … If a constitutional discrimination of the departments on paper were a sufficient security to each against encroachments of the others, all further provisions would indeed be superfluous. But experience had taught us a distrust of that security; and that it is necessary to introduce such a balance of powers and interests, as will guarantee the provisions on paper. Instead therefore of contenting ourselves with laying down the theory in the Constitution that each department ought to be separate and distinct, it was proposed to add a defensive power to each which should maintain the theory in practice.”

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Concentrated political power frightened the Founders. They especially feared unrestrained executive power. In fact, some of the delegates to the Constitutional Convention fought for a weak executive because history had been a continuous stream of kings and rulers supplanting legislative bodies. Despite misgivings, James Madison convinced the delegates that balanced power with effective checks was the only way to secure liberty and the idea became foremost in the design of a new government.

When you study the political formation of the United Sates, one is struck by the recurrence of the checks and balances theme— in Madison’s convention notes, the Constitution itself, the Federalist Papers, the minutes of the ratification conventions, and even the Anti-Federalist papers. There can be no doubt that a national consensus supported the concept that each part of the government should act as an effective check on all of the other parts of the government. Read more

Guest Essayist: James D. Best, author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, and Principled Action, Lessons from the Origins of the American Republic

John Adams wrote, “The Revolu­tion was effected before the war commenced. The Revolution was in the minds and hearts of the people … This radical change in the principles, opinions, sentiments, and affections of the people, was the real American Revolution.”

How did a revolution commence in the minds and hearts of Americans? It germinated in pulpits and taverns, and from pamphleteers and newspapers. By the time the Declaration of Independence was signed, there was a colonial consensus on a few key principles. Today, we call these the Founding Principles or First Principles. Read more

Guest Essayist: James D. Best, author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, and Principled Action, Lessons from the Origins of the American Republic

Amendment XXVII:

No law varying the compensation for the services of the Senators and Representatives shall take effect until an election of Representatives shall have intervened.

The 27th Amendment states that any law Congress passes that alters their compensation cannot take effect until after the next election.

On September 25, 1789, Congress proposed twelve constitutional amendments. In a little over two years, ten of these were ratified by the states. These very first amendments to the Constitution became our revered Bill of Rights.

The first rejected amendment proscribed a complex formula for determining the size of the House of Representatives. The second failed amendment, known as the Compensation Amendment, was written by James Madison in response to Antifederalist claims that Congress possessed the power to vote themselves rich salaries. Although this amendment failed in 1791, it eventually became the 27th Amendment.

The 11th Amendment took less than a year to ratify. Prohibition (18th Amendment) took 14 months, while repeal (21st Amendment) took only nine months. Women’s suffrage (19th Amendment) took 14 months to ratify. Giving 18 year olds the right to vote (26th Amendment) took only a little over three months. So why did it take 203 years to ratify the 27th Amendment?

In 1791, Americans didn’t see compensation of Congress as a big issue—at least, not enough of an issue to threaten liberty. If Congress became too greedy, voters would simply throw them out of office. In 1873, Congress did vote itself a retroactive raise. In a pique, Ohio ratified the Compensation Amendment. No other states followed suit, so the amendment languished—until the 1980s. Surprisingly, a grassroots campaign was ignited by an undergraduate term paper written by Gregory Watson. (He received a C grade for the paper.) On May 7, 1992, the Compensation Amendment was finally ratified by enough states to make it officially the 27th Amendment.

The irony is that this two-century process may have been made meaningless by later court decisions. Since the amendment was ratified, the only court challenge claimed that the annual Cost of Living Allowance (COLA) violated this amendment. A few taxpayers and a congressman filed suit, but a lower court ruled that the taxpayers did not have standing (standing is a legal interest in the issue that entitles the party to seek relief).  It further ruled that an automatic COLA was not an independent law subject to the amendment. On appeal, the Tenth Circuit ruled that the congressman also did not have standing. If neither taxpayers nor congressmen have standing, it’s hard to imagine a successful challenge.

Madison had crafted a clear, single sentence that 203 years later became part of the Constitution. It’s doubtful that Congress would be foolish enough to violate this minor restriction on their pay increases.

We often hear laments that our politicians no longer honor their pledge to preserve, protect and defend the Constitution of the United States.  This is backward.  The Constitution was not written for politicians.  Our political leaders have no motivation to abide by a two hundred year old restraining order.  Americans must enforce the supreme law of the land.  The first outsized words of the Constitution read We the People.  It’s our document. It was always meant to be ours, not the government’s.  It is each and every American’s obligation to preserve, protect, and defend the Constitution of the United States.

James D. Best is the author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, and Principled Action, Lessons from the Origins of the American Republic.

June 13, 2012

Essay #83

Guest Essayist: James D. Best, author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, and Principled Action, Lessons from the Origins of the American Republic

Amendment XXII:

1: No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President, when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.


2: This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.


Amendment XXII: Reform or Revision?

Until 1940, presidents honored the George Washington precedent of serving for only two terms. In that year Franklin Roosevelt defied tradition and won a third term, then later a fourth term. Roosevelt died in office in 1945. Presidential term limits became a huge issue in the 1946 watershed election, and a new generation swept into office, many of them returning soldiers. The new congress was young, idealistic, and committed to change. One of their first priorities was the XXII Amendment, which was ratified by the states in early 1951. Since then, we have had eleven presidents, but so far only four have been restricted from another term by this amendment.

There have been many proposals to reform or revise the XXII Amendment. Congress has repeatedly submitted bills to repeal the amendment, but none has ever made it out of committee. Some have proposed that the restriction be revised to consecutive terms, and others want a super-majority of both houses to have the ability to override the restriction.

The XXII Amendment ought to be left in place without revision.

The president is often called the most powerful person in the world. To a great extent, that is true. Over the centuries, presiden­tial power has increased enormously, both domestically and inter­nationally. This was not the intent of the delegates to the Constitutional Convention. The president was supposed to be a co-equal partner in a three-branch government focused on the needs of Americans.

The greatest increase in presidential power came from the growth in government. As the national government grew, from around 4 percent of gross domestic product in the 1920s to 25 percent in 2010, presidential power grew exponentially because all but a smidgeon of that money ended up in the executive branch. The bigger the national government grows, the more powerful the executive is as an indi­vidual.

In United States v. Curtiss-Wright Export Corp (1936), the Supreme Court ruled that the president has almost unrestricted powers in international affairs. The Court said that this singular authority over foreign affairs is “the very delicate, plenary and exclu­sive power of the President as sole organ of the federal government in the field of international relations—a power which does not require as a basis for its exercise an act of Congress.” One of the few excep­tions to this exclusive power is Senate approval of treaties.

This ruling by itself did not make the president the most powerful person on the world stage. Three other developments made that happen. The first was that the American free enterprise system built the largest, most robust economy in the world. The second development was the vacuum of power after World War II. The Soviets were dangerous, and their ambitions for empire threatened the world. Someone had to step into the breach. The third development was the devastating power and global reach of modern weaponry.

Both inside and outside the United States, the president is enormously powerful. The Framers of the Constitution feared concentrated power, and they were especially fearful of concentrated power in single person. The Framers would have immediately searched for ways to curtail this power, and term limits would be at the forefront of their consideration. We need an ironclad XXII Amendment to bolster the idea that this power is only on loan for a limited period.

Power corrupts. Let us hope it takes longer than eight years.

James D. Best is the author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, and Principled Action, Lessons from the Origins of the American Republic.

May 30, 2012

Essay #73



Guest Essayist: James D. Best, author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, and Principled Action, Lessons from the Origins of the American Republic

Amendment XVI:

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

Reform or Revision?

The infamous XVI Amendment gave the national government the authority to tax income … from whatever source derived. Income tax has always been divisive. In the early twentieth century, the amendment was promoted with the phrase “soak the rich,” and the level of progressiveness in the tax codes has been contentious ever since. Many feel that it is only fair that those with more money should pay the lion’s share, while others think fairness means that every American should contribute at least something to the national coffers.

In Federalist 10, James Madison wrote, “The apportionment of taxes on the various descriptions of property is an act which seems to require the most exact impartiality; yet there is, perhaps, no legislative act in which greater opportunity and temptation are given to a predominant party to trample on the rules of justice.” For the hundred years that the XVI Amendment has been in place, exact impartiality has been a rarity.

There are many odious aspects of our current income tax. T. Coleman Andrews, commissioner of the IRS under Eisenhower said, “It opened up our homes, our papers and our effects to the prying eyes of government agents.” An IRS appeal is through tax courts without juries, and if a taxpayer loses, the individual must pay before suing the government. Congress relishes playing three-card Monte with the tax code by deftly moving taxes up, down and sideways, while slipping loopholes to favored constituents. Tax policy seldom has any relationship to economic growth, keeping markets free, or preserving personal liberty. For those of us who are recordkeeping impaired, the laws are a nightmare and a huge waste of valuable time. And last, we work and struggle to make ends meet, and instead of getting thanks for all the money we send to Washington, there’s always some politician trying to make us feel guilty because we didn’t send more.

Should the XVI Amendment be reformed or revised? Probably. Revision of the XVI Amendment could potentially fix many issues about the application of income tax, but it would not resolve our growing debt issues. The federal government spends about a quarter of our national production, much of it financed with debt that has climbed to unfathomable levels. Reforming or revising the XVI Amendment might squeeze the revenue side, but it won’t guarantee spending restraint. The government has no restrictions on borrowing or printing money.

Congress has shown that it won’t fix the tax code or spending. As we’ve witnessed since the Tax Reform Act of 1986, tax cuts and simplification only buy a short recess from offensive rates and burdensome regulations.

Without an ironclad restraint, government will continue to tax and spend recklessly. If permanent change is desired, it will require amending the Constitution. The real question is what kind of constitutional reform is needed. It’s possible we could have a public debate and resolve the fairness issue once and for all. For example, a flat tax would be good for the individual and boost economic growth, but most Americans have come to believe progressive rates equate to fairness. Another proposed reform would repeal the XVI Amendment in favor of a national sales tax—sometimes called the fair tax. Critics have pointed out that these reforms have their own problems, but even if they present an improvement, they seem unlikely to get out of Congress or be ratified by thirty-eight state legislatures.

If the goal is to make income tax fairer or trade it for a different tax, then a revision of the XVI Amendment could do the trick. However, if the goal is to collapse the deficit—and eventually the debt—then reform needs to address both the income and spending sides. This means that revision of the XVI Amendment should probably be done in conjunction with a Balanced Budget Amendment. A consolidated reform approach would provide the best chance of ratification and fixing our country’s finances. Alas, that would take leadership. Where is Alexander Hamilton when you need him?

James D. Best is the author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, and Principled Action, Lessons from the Origins of the American Republic.

May 11, 2012

Essay #60


Guest Essayist: James D. Best, author of Tempest at Dawn

Article II, Section 1, Clause 5


5:  No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.


The president of the United States must meet three eligibility requirements. He or she must be a natural born citizen, be at least thirty-five years old, and have resided within the United States for fourteen years.

The first eligibility requirement is that the president be a natural born citizen.

There is an obsolete way to meet the citizenship requirement. The office seeker could have achieved citizenship before nine states ratified the Constitution. With this proviso, the eight foreign-born delegates to the Federal Convention would be eligible. Before ratification could become a possibility, the Constitution had to make it out of the statehouse, so it was tactful to make every delegate eligible for the executive position.

If a modern candidate is less than two-hundred and twenty years old, he must be a natural born citizen. Someone born inside the United States is a natural born citizen. Although some disagree, persons born outside the United States to United States citizens are considered natural born citizens. The first Congress in 1790 declared that “the children of citizens of the United States, that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural born citizens.” The only reason this did not close the argument is that a Congressional statute cannot alter or clarify the supreme law of the land, but it certainly can be used to determine intent of the framers.

What was the intent of the framers? It actually varied by individual, as it did on many issues. When they debated this clause, Benjamin Franklin said, “When foreigners after looking about for some other country in which they can obtain more happiness, give a preference to ours it is a proof of attachment which ought to excite our confidence and affection.”1

Gouverneur Morris disagreed. “As for those philosophical ‘citizens of the world,’ I don’t want them in public councils. I do not trust them. A man who shakes off attachment to his country can never love any other.”1

(The debates can enlighten on original intent, but in the end, it was the votes that determined what the Constitution meant.)

The president must also be at least thirty-five years old upon taking the oath of office. Today, thirty-five seems young. Theodore Roosevelt was the youngest president at forty-two, and John F. Kennedy was the youngest elected president at forty-three. In 1787, thirty-five was not young. Alexander Hamilton was still five years away from eligibility. His fellow delegates Jonathon Dayton, John Mercer, Richard Dobbs Spaight, and Charles Pinckney were all younger. Even the Father of the Constitution, James Madison, was only thirty-six.

The last eligibility requirement is that the president must have resided within the United States for fourteen years. Justice Story opined that “residence in the constitution, is to be understood, not an absolute inhabitancy within the United States during the whole period; but such an inhabitancy, as includes a permanent domicil in the United States.” Due to draft wording of this clause and the precedent-setting election of Herbert Hoover, it is generally accepted that the fourteen years can be cumulative.

It is also interesting what is not included in this clause. There are no religious, property, hereditary, or military service requirements. Also, Fifty-five men framed a constitution that requires no amendment for a woman president.

1 The Franklin and Morris quotes have been changed to first person from the third person used by James Madison in his notes.

James D. Best is an author who writes historical novels and contemporary novels with a strong historical theme. Tempest at Dawn is a dramatization of the 1787 Constitutional Convention.

Guest Essayist: James D. Best, author of Tempest at Dawn

One of the criticisms raised against the Constitution was that there were too few members in the House of Representatives to adequately represent constituents.

The rule reads: “The Number of Representatives shall not exceed one for every thirty Thousand.”

Federalist 55 argued that a representative body ought to have enough members to mitigate the threat of corruption, but not so many so as to cause confusion. The initial number would be 65, but a census in three years would adjust this number. Federalist 55 basically argues that the number in the state legislatures varied, and if 65 members were too few, it would be increased in a short time after the first census.

Federalist 56 addresses the objection that a small House would not possess the collective knowledge necessary to make laws.

The first argument is one that we’ve heard before: The powers of the national legislature are limited, and state legislatures would have specific knowledge for the powers retained by the states. “In determining the extent of information required in the exercise of a particular authority, recourse then must be had to the objects within the purview of that authority.” Since the national government had only enumerated powers, the House did not need a broad breadth of knowledge.

This led easily into the second argument, which was that national law could rely on state laws. “The laws of the state, framed by representatives from every part of it, will be almost of themselves a sufficient guide … little more to be done by the federal legislature, than to review the different laws, and reduce them in one general act.”

Both arguments show that Publius believed the states would handle the preponderance of legislation and act as a safeguard against the federal government.

For these reasons, Publius concludes “that a representative for every THIRTY THOUSAND INHABITANTS will render the latter both a safe and competent guardian of the interests which will be confided to it.”

This may seem like a minor issue, but in 1787 it grabbed the attention of the most powerful politician in the country. In the last days of the convention, George Washington verbally supported allowing a representative for every thirty thousand, rather than one for every forty thousand. In his convention notes, Madison wrote, This was the only occasion on which the President entered at all into the discussions of the Convention.

During the convention, James Madison also proposed doubling the initial number of congressmen, but as part of the Publius triumvirate, he ended up defending the smaller number.

What about today? Until 1911, the number of representatives was adjusted by population. Since that year, the population criterion has been adjusted to keep the number of representatives constant. The “shall not exceed” clause allowed the House of Representatives to restrict their membership to 435. Congress restricted their growth in number, but not their growth in power.

A quote from Federalist 55 shows that Publius never anticipated a dominating Congress. “I am unable to conceive that the State legislatures, which must feel so many motives to watch, and which possess so many means of counteracting, the federal legislature, would fail either to detect or to defeat a conspiracy of the latter against the liberties of their common constituents.”

James D. Best is an author who writes historical novels and contemporary novels with a strong historical theme. Tempest at Dawn is a dramatization of the 1787 Constitutional Convention.

character that balances republican virtue, self-restraint, and vigilant self-interest, and on the subtler bonds of cultural and political tradition. Constitutional forms help, but, ultimately, responsibility lies with the people.

Madison warns against laws that will not have “full operation on [Congressmen] and their friends, as well as on the great mass of the society.” Making only laws that are universally applicable “has always been deemed one of the strongest bonds by which human policy can connect the rulers and the people together.”  Citizen legislators must not be a privileged class.

Though the Republican take-over of Congress in 1995 spurred the passage of a law that removed Congressional exemption from a dozen anti-discrimination, labor, and safety laws, there yet remain other laws that apply to private citizens but not to Congress. Madison asserts that the American spirit will restrain the legislature from making legal discriminations in their favor and that of a particular class. “If this spirit shall ever be so far debased, as to tolerate a law not obligatory on the legislature as well as on the people, the people will be prepared to tolerate anything but liberty.” Where does that place us?  As many have said in some variant about republican systems, “The people get the government they deserve.”

Wednesday, July 14th, 2010

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


Guest Essayist: James D. Best, author of Tempest at Dawn

Federalist 59-61 address the federal power to regulate the election of senators and representatives. The clause being defended by Hamilton reads: “The times, places, and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof; but the Congress may, at any time, by law, make or alter such regulations, except as to the places of choosing senators.”

Vox Populi, in Anti-federalist 59, argued against the national congress regulating the election of senators and representatives. This was viewed as an infringement on state sovereignty and a possible tool of national tyranny.

In Federalist 59, Hamilton defended this clause by saying that every government must have the means to defend itself. The safety of the national government depended on its authority to override state rules that were harmful to the election of its own members.

In Federalist 60, Hamilton again argues against unfettered state authority over the election of members of the United States Congress. A national override of election laws is less pertinent than the arguments used by Hamilton. He defends the clause by stressing that safety from oppressive laws comes from the careful distribution of power and divergent methods of selecting each component of the national government.

He says, “the circumstance which will be likely to have the greatest influence in the matter, will be the dissimilar modes of constituting the several component parts of the government. The House of Representatives being to be elected immediately by the people, the Senate by the State legislatures, the President by electors chosen for that purpose by the people, there would be little probability of a common interest to cement these different branches in a predilection for any particular class of electors.”

One is struck by the recurrence of the checks and balances theme—in Madison’s convention notes, the Constitution itself, the Federalist Papers, and the minutes of the ratification conventions. There can be no doubt that the Founders believed that liberty depended on one part of the government acting as an effective check on all other parts of the government, and that meant between the national branches and between the states and the national government. The Founders abhorred concentrated power. They believed that only through judiciously balanced power—constituted by dissimilar modes—could liberty survive the natural tendency of man to dictate the habits of other men.

Hamilton made another interesting argument. If elected officials violated the Constitution to usurp power, “Would they not fear that citizens, not less tenacious than conscious of their rights, would flock from the remote extremes of their respective states to the places of election, to overthrow their tyrants, and to substitute men who would be disposed to avenge the violated majesty of the people?”

Tuesday, July 20th, 2010

James D. Best is an author who writes historical novels and contemporary novels with a strong historical theme. Tempest at Dawn is a dramatization of the 1787 Constitutional Convention.