Essay 72 – Guest Essayist: Joerg Knipprath

If one lived in Virginia during the first couple of centuries or so of European settlement, one could do much worse than being born into the Lee family. Founded in the New World by the first Richard Lee in 1639, its wealth was based initially on tobacco. From that source, the family expanded, intermarried with other prominent Virginians, and established its prominence in the Old Dominion State. Richard Henry Lee and his brother Francis Lightfoot Lee, both signatories of the Declaration of Independence and the Articles of Confederation, were scions of one branch of the family. Henry “Light-Horse Harry” Lee III was a son of Richard Henry Lee’s cousin. Henry III was a precocious officer in the Continental Army, major-general in the United States Army, governor of Virginia, and father of Confederate States Army General Robert E. Lee.

Despite this illustrious background, Richard Henry Lee was in relatively straightened financial circumstances, compared to others in his political circle. Though he was the son of a royal governor of Virginia and plantation owner, Lee inherited no wealth other than some land and slaves. He rented those assets out for support, but depended on government jobs to help maintain his participation in politics. Although Lee studied law in Virginia after returning from an educational interlude in England, it appears he never practiced law. Still, his training became useful when he was appointed Justice of the Peace in 1757 and elected to the House of Burgesses in 1758.

Once in politics, Lee quickly took on radical positions. In September, 1765, he protested the Stamp Act by staging a mock ritual hanging of the colony’s stamp distributor, George Mercer, and of George Grenville, the prime minister who introduced the Stamp Act. Soon it was discovered that Lee himself had applied for that distributor position, which proved rather awkward for his bona fides as a fire-breathing patriot. After a mea culpa speech delivered with the trademark Lee passion, he was absolved and, indeed, lauded for his honesty.

He escalated the protest in 1766 by writing the Westmoreland Resolves, which promised opposition to the Stamp Act “at every hazard, and, paying no regard to danger or to death.” Further, anyone who attempted to enforce it would face “immediate danger and disgrace.” The signatories, prominent citizens of Westmoreland County, Lee’s home, pledged that they would refuse to purchase British goods until the Stamp Act was repealed. Eight years later, this type of boycott was the impetus for the Continental Association, an early form of collective action by the colonies drafted by the First Continental Congress and signed by Lee to force the British to repeal the Coercive Acts.

On March 12, 1773, Lee was appointed to Virginia’s Committee of Correspondence. The first such committee was established in Massachusetts the previous fall under the leadership of Sam Adams to spread information and anti-British propaganda to all parts of the colony and to communicate with committees in other colonies. The trigger was the Gaspee affair. The British cutter Gaspee, enforcing custom duties off Rhode Island, ran aground on a sand bar. Locals attacked and burned the ship and beat the officer and crew. The government, keen on punishing the destruction of a military vessel and the assault on its men, threatened to have the culprits tried in England. The specter of trial away from one’s home was decried by the Americans as yet another violation of the fundamental rights of Englishmen. Other colonies soon followed suit and established their own committees. Letters exchanged between Lee and Adams expressed their mutual admiration and laid the foundation for a lifelong friendship between the two.

Amid deteriorating relations between Britain and her American colonies, Parliament raised the ante by adopting the Coercive or Intolerable Acts (Boston Port Act, Massachusetts Government and Administration of Justice Act, Quartering Act) against Massachusetts Bay. Virginia’s House of Burgesses responded with the Resolve of May 24, 1774, concocted by Lee, his brother Francis Lightfoot Lee, Thomas Jefferson, Patrick Henry, and George Mason, which called for a day of “Fasting, Humiliation, and Prayer” for June 1. Time being of the essence, the authors were not above a dash of plagiarism. They took the language from a similar resolution made by the House of Commons in the 1640s during their contest with King Charles I. The Resolve denounced the British actions as a “hostile invasion.” It called for the Reverend Thomas Gwatkin to preach a fitting sermon. The reverend declined the invitation, not eager to have his church drawn into what he viewed as a political dispute. The royal governor, the Earl of Dunmore, reacted by dissolving the Burgesses. Lee and other radicals thereupon gathered at Raleigh’s Tavern in Williamsburg on May 27. They adopted a more truculent resolution, which declared that “an attack made on one of our sister Colonies, to compel submission to arbitrary taxes, is an attack made on all British America.”

Lee’s visibility in the colony’s political controversies paid off, in that he was selected by Virginia as a delegate to the First Continental Congress and, the following year, to the Second Continental Congress. It was in that latter capacity that Lee made his name. In May, 1776, the Virginia convention instructed its delegates to vote for independence. On June 7, Lee introduced his “resolution for independancy [sic].” The motion’s first section, adopted from the speech by Edmund Pendleton to the Virginia convention, declared:

“That these United Colonies are, and of right ought to be, free and independent States, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved.”

Debate on the motion was delayed until July due to the inability or unwillingness of some delegations to consider the issue.

In the meantime, colonies were declaring themselves independent and adopting constitutions of their own. With events threatening to bypass Congress, a committee was selected to draft a declaration of independence. Lee was unavailable. He had hurried back to Virginia, apparently to attend to his wife who had fallen ill. That absence prevented him from participating in the debate on his resolution on July 2. He returned in time to sign the Declaration of Independence.

Lee’s terms in Congress demanded much from him. He was what today would be described as a “workaholic.” On several occasions, this led to illness and absence due to exhaustion. He served in numerous capacities, including as chairman of the committee charged with drafting a plan of union, though most of the work on that project was done by John Dickinson as the principal drafter of the eventual “Articles of Confederation.” Lee was one of sixteen delegates who signed both the Declaration and the Articles.

From 1780 to 1782, Lee put his position in Congress on hold to tend to political matters in Virginia. The state was in relatively sound financial shape and keeping up with its war debt obligations. Lee opposed making the highly-depreciated Continental Currency legal tender. He also took the unpopular position of denouncing the law to cancel debts owed by Virginians to British creditors. “Better to be honest slaves of Great Britain than to become dishonest freemen,” he declared.

On the topic of slaves, Lee inherited 50 from his father. Despite that, he had strong anti-slavery sentiments. In 1769, he proposed that a high tax be assessed against importation of slaves, in order to end the overseas slave trade. Some critics grumbled that he did this only to make his own slaves more valuable, the same charge made against those Virginians who supported the provision in the Constitution which ultimately ended the trade after 1808. His pronouncements on the moral evil of slavery continued. It is unclear if Lee ever manumitted his slaves. The charge of hypocrisy is readily leveled at someone like Lee. But this history also demonstrates the difficulty of extricating oneself from an economic system on which one’s livelihood depends.

One pressing problem at the time was the parlous state of Congress’s finances, made even more dire by the looming obligations of the war debt. Lee’s role in stabilizing the financial situation in Virginia added to his stature in Congress. His fellow-delegates elected him their president during the 1784-1785 session. He was the sixth to serve as “President of the United States in Congress Assembled” after approval of the Articles of Confederation in 1781. Despite the impressive-sounding title as used in official documents, the position was mainly ceremonial. However, a skillful politician such as Lee could use it to guide the debates and influence the agenda of Congress.

Lee opposed proposals to give Congress a power to tax, especially import duties. He also believed that borrowing from foreign lenders would corrupt. Instead, he aimed to discharge the war debts and fund Congress’s needs through sales of land in the newly-acquired western territory. With the end of British anti-migration policy, millions of acres were potentially open to settlers. He hoped that the Western Land Ordinance of 1785, with its price of $1 per acre of surveyed land would raise the needed cash. Alas, poor sales soon dashed those hopes. Indian tribes and the pervasive problem of squatters who simply occupied the land mindful of the government’s lack of funds for troops to evict them contributed to uncertainty of land titles. With Lee’s prodding, Congress belatedly adopted the Land Ordinance of 1787, better known as the Northwest Ordinance. This law, reenacted by the Congress under the new Constitution of 1787, provided some needed stability, but it came too late to benefit the Confederation.

When Virginia accepted the call in Alexander Hamilton’s report on the Annapolis Convention of 1786 to send delegates to a convention to meet the following May in Philadelphia to consider proposals to amend the Articles of Confederation, Lee was elected as one of those delegates. Lee declined the position, as did his political ally Patrick Henry and a number of prominent men in other states. Henry summed up the views of many non-attendees. When asked why he did not accept, Henry, known as a man of many words over anything or nothing, stepped out of character and declared simply, “I smelt a rat in Philadelphia, tending toward the monarchy.”

Once the draft Constitution was approved, the Philadelphia convention sent it to the states for ratification as set out in Article VII. They also sent a copy to the Confederation Congress, with a letter that requested that body to forward its approval of the proposed charter to the states. Lee now attempted a gambit, innocuous on its face, which he hoped would nevertheless undo the convention’s plan. He moved to have Congress add amendments before sending the Constitution to the states. Taking clues from his friend George Mason, the most influential delegate at the convention who refused to support its creation, Lee submitted proposals on free exercise of religion, a free press, jury trials, searches and seizures, frequent elections, ban on a peace-time army, excessive fines, among others. These particulars echoed portions of Mason’s Declaration of Rights which he had drafted for Virginia in 1776.

Lee’s strategy was that the states should ratify either the original version, or a revised one with any or all of the proposed amendments. If no version gained approval, a second convention could be called which would draft a new document that took account of the states’ recommendations. One facet of this “poison pill” approach alone would have doomed the Constitution’s approval. As drafted, assent of only nine states’ conventions was needed for the new charter to go into effect among those states. For anything proposed by Congress, the Articles of Confederation required unanimous agreement by the state legislatures. Since support of a bill of rights, which the Constitution lacked, was a popular political position, it was likely that enough states would vote for proposed amendments to that end. In that event, the original Constitution would fall short of the nine states requirement, and Lee’s approach would require a second convention. It was feared—or hoped, depending on one’s view of the proposed system—that this would doom the prospect of change to the structure of governing the United States.

The pro-Constitution faction had the majority among delegations to Congress. Lee’s clever maneuver was defeated. However, rather than conveying the “Report of the convention” to the states with its overt approval, Congress sent it on September 28, 1787, without taking a position.

In the Virginia ratifying convention, Henry and others continued on the path Lee had laid out, of seeking to derail the process and to force a second convention. Like many other Americans, Lee was not opposed to all of the new proposals, but believed that, on the whole, the general government was given too much power. The new Constitution was a break with the revolutionary ethos that had sparked the drive to independence and was alien to the republicanism which was a part of that ethos. The opponents’ conception of unitary sovereignty clashed with that of the Constitution’s advocates who believed, such as Madison asserted in The Federalist, that the new government would be partly national and partly confederate. To the former, such an imperium in imperio was a mirage. Sooner or later, the larger entity would obliterate the smaller, the general government would subdue the states. Likewise, in the entirety of human history, no political entity the size of the United States had ever survived in republican form. To the classic republicans rooted in the struggle for independence who now were organizing to oppose the Constitution, the very existence of an independent central government threatened the republic. Of course, if any version of such a government were to be instituted, a bill of rights was indispensable.

The writings of an influential Antifederalist essayist, The Federal Farmer, have often been attributed to Lee. As with the works of William Shakespeare, historians debate these essays’ authorship. The claim that Lee wrote them was first made nearly a century after these events. No contemporary sources, including Lee or his political associates, mention him as the writer. The essays, presented in the form of letters addressed to The Republican, were collected and published in New York in late 1787 to influence the state ratifying convention. The Republican is Governor George Clinton, a committed Antifederalist who was the presiding officer of that convention and a powerful politician who remains the longest-serving governor in American history. Clinton himself is believed to have authored a number of important essays under the pseudonym Cato. Both Federal Farmer and Cato were so persuasive that they alarmed the Constitution’s supporters to the point that The Federalist addresses them by name to dispute their assertions.

Lee was in New York attending Congress during this time, and he was a prolific writer of letters, so it is possible he composed these, as well. Moreover, the arguments in the essays paralleled Lee’s objections about the threat the new system posed to the states and to American republicanism. The similarity extended even to the specific point that Lee made that the composition of the House of Representatives was far too small to represent adequately the variety of interests and classes across the United States.

However, Lee never wrote anything as systematic and analytically comprehensive as the Federal Farmer letters. What he intended for public consumption, such as his resolves, motions, and proclamations were comparatively brief and, like his rhetoric, to the point and designed to appeal to emotions. John Adams wrote during the First Continental Congress, “The great orators here are Lee, Hooper and Patrick Henry.” St. George Tucker, a renowned attorney from Virginia and authority in American constitutional law, described Lee’s speeches: “The fine powers of language united with that harmonious voice, made me sometimes think that I was listening to some being inspired with more than mortal powers of embellishment.” Historian Gordon Wood has contrasted Lee’s passionate style with the moderate tone and thoughtfulness of the Federal Farmer letters and asserts that Lee did not write them.

If not Lee, who? More recent scholarship has claimed that Melancton Smith, a prominent New York lawyer who attended the state convention, wrote these essays. Smith eventually voted for the Constitution in the narrow 30-27 final vote, which might explain the essays’ moderation in their critiques of the Constitution. His background as a lawyer might account for the close analysis of the document’s provisions. That said, the case for Smith and against Lee is also based on conjecture.

Once the Constitution was adopted, Lee, like Patrick Henry, made his peace. Henry used his influence in the state legislature to take the “unusual liberty” of nominating Lee to become one of Virginia’s two initial United States Senators. In that position Lee supported the Bill of Rights, although he considered its language a weak version of what it was supposed to achieve. Soon, however, Lee parted ways with his old political ally Henry and sided with Hamilton’s expansionist vision of the national government and its financial and commercial policies.

Lee died, age 62, on June 19, 1794. Thus ended the life of a man whose advice still commands attention: “The first maxim of a man who loves liberty, should be never to grant to rulers an atom of power that is not most clearly and indispensably necessary for the safety and well being of society.”

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

Podcast by Maureen Quinn.

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Essay 67 – Guest Essayist: Joerg Knipprath

In his work E Pluribus Unum, the historian Forrest McDonald provides a succinct profile of Samuel Chase: “But for Samuel Chase, Maryland’s immediate postwar history would have been dull in the extreme….At the time, all that seemed to be happening—or most everything with salt and spice, anyway—appeared to revolve around Samuel Chase….

“Chase was a man of peculiar breed, perfectly consistent by his own standards but wildly inconsistent by any other….[W]henever he appeared in public life in the capacity of an elected official, he artfully duped the people, led them by demagoguery into destructive ways, and exploited them without mercy; and they loved him and sang his praises and repeatedly reelected him….

“But when he appeared in public life in a different capacity, the capacity of institution-maker or institution-preserver, he worked with sublime statesmanship to protect the people against themselves, which is to say, against the like of himself. Thus in 1776, as the principal architect of Maryland’s revolutionary constitution, he created a system so fraught with checks and balances, and with powers so distributed between aristocracy and people, that destructive radicalism seemed impossible. Less than a decade later, as a member of the state’s House of Delegates, he engineered a movement to subvert that very constitution, and did so for the most flagrantly corrupt reasons and with the enthusiastic support of ‘the people,’ in whose name he did it….

“As a rogue who exploited public trust, Chase pursued private gain, but he probably did so more because he enjoyed the role than because he really coveted its fruits. Whatever his motives, he led Maryland’s proud and pretentious aristocrats by the nose for nearly a decade, and in so doing executed a dazzling series of maneuvers that accounted for most of the state’s major policy decisions.”

A physically large man, “Old Baconface,” a sobriquet he was given as a young attorney for his ruddy complexion, was in many ways, then, a larger-than-life character in Maryland. And that all happened before Chase’s rise to high federal judicial office, and the vortex of controversy in which he placed himself once more, precipitating an existential institutional crisis for the Supreme Court.

The expulsion in 1762 of Chase, the young attorney, from a debating club was for unspecified “extremely irregular and indecent behavior.” The founding of the local Sons of Liberty in 1765 was with another eventual signer of the Declaration of Independence, his friend William Paca, a wealthy planter and future governor, who was himself no stranger to political corruption. There was a failed attempt to corner the grain market through inside information after being elected to the Second Continental Congress. These incidents were the overture to the dynamic that marked the increasingly consequential relationship between Samuel Chase and the established political and social order.

Chase’s scheming then moved to the Maryland legislature, which, in the 1781-1782 session, adopted two laws favorable to Chase. The first was the creation of the office of Intendant of the Revenues, which placed in one office complete control over the state’s finances. The appointment went to a Chase associate, Daniel of St. Thomas Jenifer, a future signer of the U.S. Constitution. The second deprived Loyalists of their rights and confiscated their property with a value of more than 500,000 Pounds Sterling at the time. That property was to be sold at public auction. Chase and various associates placed their men in crucial administrative positions and manipulated the sales to their advantage. Among those associates was Luther Martin, an influential Antifederalist who began a long tenure as Maryland’s attorney general in 1778 through Chase’s influence. Another was Thomas Stone, who also had signed the Declaration of Independence.

The Chase syndicate acquired confiscated property valued between 100,000 and 200,000 Pounds Sterling, an amount far beyond what they could pay. Their solution was to choreograph the auction process with the help of Intendant of Finance Jenifer so as to cancel that sale through questionable legal technicalities and end up, in a second sale, with a price that was one-tenth that of the original auction price. Even that amount was more than the syndicate had, so they undertook a several-year-long effort to delay payment and procure a law that would enable them to pay their obligation with an issue of depreciated Maryland paper currency.

Chase’s questionable dealings and political scheming caused him and his associates trouble at times. In the end, however, the scandals, investigations, and attendant calumnies did him no harm. The personal charm he could invoke when needed, the political demagoguery to which he freely resorted to portray himself as a tribune of the people and an opponent of aristocracy and Toryism, and the willingness to deflect attention from the negative consequences of a failed political scheme by fomenting another even more base and outrageous, served him well.

It is a cliche of a certain genre of entertainment that a plot featuring a lovable scoundrel or band of misfits needs a straight-laced, establishment foil. In the tale of Samuel Chase, that part was played by Charles Carroll of Carrollton. Carroll came from the leading family of Maryland Catholics. He was a wealthy planter, thought to have been the wealthiest person in the new nation, worth about $400 million in today’s money. He was also the most lettered of the generally well-educated signers of the Declaration of Independence. Carroll was an early pro-independence agitator. As the leader of the Maryland Senate during the 1780s, he jousted politically with Chase and his allies over Chase’s schemes. While Carroll was able to blunt some of those schemes, Chase, in turn, succeeded in painting Carroll as a Tory. This was a supreme irony, indeed, in light of Carroll’s bona fides as a patriot who had been advocating violent revolution against Britain when Chase was still urging discussions.

In 1791, Chase became chief justice of the Maryland General Court, where he stayed until he was appointed to the United States Supreme Court by President George Washington in 1796. Chase served in that capacity until his death in 1811.

As the political temperature in the country heated up after passage of the Alien and Sedition Acts in 1798, Chase was drawn into the rhetorical clashes between Federalists and Jeffersonians. With relish, Chase denounced Jefferson’s Democratic Republicans as the party of “mobocracy.” Drawing on his experience as a partisan brawler during his days in Maryland politics, he denounced Jefferson, the Republicans, and Jeffersonian policies with his accustomed sharp tongue. Crucially for the events to follow, he did so while performing his judicial duties.

The nature of his position as a supposedly impartial and nonpolitical jurist had no impact on him.

Examples were Chase’s ham-handed actions in the trials in 1800 of, respectively, Thomas Cooper and James Callender for publishing libelous materials about John Adams and Alexander Hamilton. While Cooper was a sympathetic figure, Callender was a scandalmonger whose fate in the courtroom probably would not have stirred anyone, had Chase not made him a political martyr. Callender’s attacks on Hamilton had impressed Jefferson, who was pleased with anyone willing to sling rhetorical mud at the Federalists. Jefferson encouraged and subsidized Callender’s efforts and later pardoned him for his conviction in Chase’s courtroom. However, Jefferson soon became much less enchanted with Callender when the latter demanded he be appointed to a federal office. Upon Jefferson’s refusal, Callender switched political allegiances and, as a Federalist Party newspaper editor, published scurrilous articles that claimed Jefferson’s paternity of children born to Sally Hemings, one of his slaves.

Chase, meanwhile, continued his political activism. Not content to campaign as a sitting judge for President Adams’s reelection, he harangued a Baltimore grand jury in 1803 with a long charge which criticized the Jeffersonians for having repealed an Adams-era judiciary statute that Chase favored, and which condemned the idea of universal suffrage as unrepublican. The last was particularly ironic in light of his public persona as a man of the people and opponent of Toryism in his earlier political career in Maryland.

Having made himself the lightning rod for the Jeffersonians’ fury at what they saw as the Federalists entrenching themselves in the judiciary following the latters’ election loss in 1800, Chase became the target of an impeachment effort in the House of Representatives. The grand jury charge in 1803 may have been the catalyst, but Jefferson’s distaste for his cousin Chief Justice John Marshall and outrage at Marshall’s lectures to the executive branch in Marbury v. Madison that same year, helped produce the reaction. Indeed, it was broadly understood that a Chase impeachment was a dry-run for a more consequential attempt to remove Marshall.

Led by another of Jefferson’s cousins, the flamboyant ultra-republican majority leader John Randolph of Roanoke, Virginia, the House voted out eight articles of impeachment on March 12, 1804. The first seven denounced Chase’s “oppressive conduct” in the Sedition Act trials. The eighth dealt with the “intemperate and inflammatory political harangue” in Baltimore which was intended to “excite the fears and resentment…of the good people of Maryland against their state government…[and] against the Government of the United States.” In short, the Jeffersonians accused Chase of the seditious speech they previously claimed Congress could not prohibit under the Sedition Act. With that statute no longer in effect, there was no criminal act on which the impeachment was based. More significantly, since the Republicans had claimed that a federal law that targets seditious speech violates the First Amendment, Chase’s remarks were not even potentially indictable offenses. The vote was a strict party-line matter, 73-32. If party discipline held in the Senate trial, where the Republicans enjoyed a 25-9 advantage, Chase’s judicial tenure was doomed.

The trial was held in February, 1805, supervised by Vice-President Aaron Burr, still under investigation for his killing of Alexander Hamilton in a duel. Chase’s lawyers, including his old political crony, close friend, and successful Supreme Court litigator, Luther Martin, argued that conviction required proof of an act that could be indicted under law. The House managers claimed that impeachment was not a criminal process. Since impeachment was the only way to remove federal judges, they asserted that “high Crimes and Misdemeanors” must include any willful misconduct or corrupt action that made the person unfit for judicial office. Their charges met that test, they averred, because Chase had acted as prosecutor as well as judge in the trials.

The effort failed. Even on the eighth charge, the Baltimore grand jury speech, six Republican Senators voted to acquit, leaving the prosecution four votes short of the necessary two-thirds vote for conviction. On the other, weaker, charges, the House fared worse. Chase’s acquittal diminished the threat which impeachment posed to the independence of the judiciary. Still, the two sides’ respective arguments over the purpose of impeachment and the meaning of the phrase “high Crimes and Misdemeanors” were replayed in subsequent such proceedings and continue to be contested today. After his trial, Chase stayed on the Court another six years. He remains the only Supreme Court justice to have been impeached.

Samuel Chase died in Baltimore in 1811 at the age of 70.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

Podcast by Maureen Quinn.

 

 

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Essay 62 – Guest Essayist: Joerg Knipprath

James Wilson was one of the most intellectually gifted Americans of his time. His cumulative influence on pre-Revolutionary War political consciousness, formation of the governments under the Constitution of 1787 and Pennsylvania’s constitution of 1790, and early Supreme Court jurisprudence likely is second-to-none. Along the way, he amassed a respectable fortune, and took his place as a leading member of the political and economic elite that played such a critical role in the events leading to American independence. That said, he was not immune to the “slings and arrows of outrageous fortune,” in the words of the Bard, but, for the most part, he did not suffer them in the mind. Rather, more often, he chose “to take arms [sometimes literally]…and, by opposing, end them.”

Wilson moved to Philadelphia from his native Scotland in 1766, at age 24. Prior to emigrating, he was educated at Scottish universities. There, he was influenced by the ideas of Scottish Enlightenment thinkers, such as David Hume and Adam Smith. Their ruminations about human nature, the concept of knowledge, and the ethical basis of political rule shaped Wilson’s intellectual ideas which he made concrete in later political actions and judicial opinions.

It appears that Smith’s influence was more constructive than Hume’s. The latter denied the essential existence of such concepts as virtue and vice. Hume instead characterized them as artificial constructs or mere opinion. Wilson was critical of Hume’s patent skepticism, deeming it flawed and derogatory of what Wilson saw as the moral sensibilities integral to human nature. He considered Hume’s skepticism inconsistent with what he viewed as the ethical basis of the political commonwealth, that is, consent of the governed. As he wrote later, “All men are, by nature equal and free: no one has a right to any authority over another without his consent: all lawful government is founded on the consent of those who are subject to it.” However, Wilson also believed, along with John Adams and many other republicans of the time, that such consent could only be given by a virtuous people. In short, Wilson’s democratic vision was elitist in practice. The governed whose consent mattered were the propertied classes. The others might register their consent, but only under the watchful eyes of their virtuous betters in society.

After arriving in Pennsylvania, he studied law under John Dickinson, another member of the emerging political elite. While so occupied, he also lectured, mostly on English literature, at the College of Philadelphia, site of the first medical school in North America. He had arrived at an institution that was connected to an astonishing number of American founders. Despite its relatively recent founding in 1755, it counted 21 members of the Continental Congress as graduates; nine signers of the Declaration of Independence were alumni or trustees; five signers of the Constitution held degrees from the College, and another five were among its trustees.

There, Wilson successfully petitioned to receive an honorary Master’s degree, to remedy his failure to complete his studies for a formal degree at the Scottish universities. His scholarly association with the College of Philadelphia continued the rest of his life, including after its merger into the University of Pennsylvania in 1791. At that time, Wilson took on a lectureship in law for a couple of years, only the second such position established in the United States, after the Chair in Law and Police held by George Wythe at the College of William and Mary. The University of Pennsylvania traces its eventual law school to Wilson’s position.

Wilson practiced law in Reading, Pennsylvania. His talent and connections quickly produced financial security. He turned his attention to politics amid the stirrings of conflict with the British government. In 1768, he wrote, “Considerations on the Nature and Extent of the Legislative Authority of the British Parliament.” In this pamphlet, Wilson denied the authority of Parliament to tax the American colonists because of the latters’ lack of representation in that body. Perhaps because it was too early to mount a direct constitutional challenge to the authority of Parliament to govern, this seminal work was not published until 1774. Despite his negation of Parliamentary authority, Wilson did not advocate sundering all ties with the mother country. Rather, he emphasized the connection between England and her colonies through the person of King George. Wilson’s union cemented by a pledge of allegiance to the king was a rudimentary plan for the type of dominion system that John Adams and Thomas Jefferson also proposed in separate missives that same year. In an ironic postscript, the British ministry offered, too late, a similar structure as a way to end the war in 1778. It was a system the British a century later instituted for other parts of their empire.

In 1774, Wilson was elected to the local revolutionary Committee of Correspondence. When the Second Continental Congress was called in 1775, Wilson was elected to the Pennsylvania delegation. With the Adamses—John and Sam—, Jefferson, the Lees of Virginia— Richard Henry and Francis—, and Christopher Gadsden—the “Sam Adams of the South” and designer of the Gadsden Flag—Wilson was among the most passionate pro-independence voices as that Congress deliberated.

Then occurred an odd turn of events. When Richard Henry Lee’s motion for independence came up for debate on June 7, 1776, consideration had to be postponed because Pennsylvania, along with four other colonies, was not prepared to vote in favor. John Dickinson, Wilson’s close friend and law teacher, was part of the peace faction. Did that influence Wilson’s vote? Was Wilson really a pro-independence radical, as his writings and soaring rhetoric in Congress indicated? Or was he an elite conservative reluctantly floating along with the tide of opinion among others of his class? Wilson and others in his delegation claimed that they merely wanted clearer instructions from their colony’s provincial congress. In a preliminary vote within the Pennsylvania delegation on July 1, 1776, Wilson broke with Dickinson and voted for independence. When Congress voted on Lee’s motion the next day, Dickinson and Robert Morris stayed away. Wilson, Benjamin Franklin, and John Morton then cast Pennsylvania’s vote in favor of the motion and independence.

During the Revolutionary War, Wilson divided his time between Congress and opposing Pennsylvania’s new constitution. He also returned to private law practice and served on the board of directors of the Bank of North America. That bank was the brainchild of fellow-Pennsylvanian Robert Morris, another personal friend with whom Wilson also worked closely on the financial matters of the United States.

Wilson continued his life-long practice of land speculation, the vocation of some among the American elite, and the avocation of most others, elite or not-so-elite. The country was land-rich and people-poor. Investors gambled that, after peace was restored, the British pro-Indian and anti-settlement policy of the Proclamation of 1763, which had prohibited American settlement of the interior, would be overturned. Western lands finally would be opened to immigrants. Wilson, along with Robert Morris and many other prominent Americans and some foreigners, had organized the largest of the land companies, the Illinois-Wabash Company, even before the war. Wilson eventually became its head and largest investor. The intrigue among the Company, politicians in various states, delegates to Congress, and agents of foreign governments to gain access to large tracts of trans-Appalachian lands presents a fascinating tale of its own.

The Illinois-Wabash Company was not Wilson’s only venture in land speculation. He co-founded another company and also purchased rights to large tracts individually or in partnership with others. It has been estimated that, directly or through investment entities, Wilson had interests in well over a million acres of Western land. Much of this land bounty was financed through debt. Creditors want cash payment, and highly-leveraged debtors are particularly vulnerable to economic contractions. Land values drop as land goes unsold, and cash in the form of gold and silver specie becomes scarce. Bank notes no longer trade at par, reflecting the financial instability of their issuers. Like his business associate and political ally Robert Morris, Wilson was hit hard by the Panic of 1796-7. He was briefly incarcerated twice in debtor’s prison, even after fleeing Pennsylvania for North Carolina to avoid his creditors. More astounding even was that these events occurred while he was on the U.S. Supreme Court and performing his circuit riding duties.

One sling of outrageous fortune against which Wilson literally took arms occurred on October 4, 1779. After the British abandoned Philadelphia, the revolutionary government undertook to exile Loyalists and seize their property. As John Adams had done for the British soldiers accused of murder in the Boston Massacre in 1770, Wilson successfully took up the unpopular cause of defending 23 of the Loyalists. The public response to Wilson’s admirable legal ethics was more militant than what Adams had experienced. Incited by the speeches of Pennsylvania’s radical anti-Loyalist president, Joseph Reed, a drunken mob attacked Wilson and 35 other prominent citizens of Philadelphia. The mob’s quarry managed to barricade themselves in Wilson’s house and shot back. In the ensuing melee, one man inside the house was killed. When the mob tried to breach the back entrance of the house, the attackers were beaten back in hand-to-hand combat. The fighting continued, with the mob using a cannon to fire at the house. At that point, a detachment of cavalry appeared, led by the same Joseph Reed, and dispersed the mob. It is estimated that five of the mob were killed and nearly a score wounded. Members of the mob were arrested, but no prosecutions were launched, allegedly to calm the situation. Eventually, all were pardoned by Reed.

The Fort Wilson Riot, as it became known colloquially, had more complicated origins and produced more profound changes than one can address in detail in an essay about Wilson. It arose from difficult economic circumstances and rising prices due to food shortages. The lower classes were particularly hard hit, and popular resentment simmered for months, punctuated by gatherings and publications which none-too-subtly threatened upheaval. During that volatile time, Wilson was accused of “engrossing,” that is, hoarding goods with the intent to drive up prices. This may have made him an even more likely target for the mob’s wrath than having defended Loyalists.

As well, the friction between the lower classes and the merchant bourgeoisie was manifested in competing political factions, the Constitutionalists and the Republicans. The former supported the radically democratic Pennsylvania constitution of 1776, which placed power in a unicameral legislature closely monitored through frequent elections. They stressed the need for sacrifice for the common good, done on a voluntary basis or by government force. The latter opposed that charter as the cause of ineffective government and destructive policies which threatened property rights. In the end, the two competing visions of republicanism settled their political conflict during the riot. The mob had violated an unwritten rule of protest, and popular opinion shifted against the Constitutionalists. Wilson’s Republicans had won. They would determine the subsequent political direction of the state, which became the critical factor in Pennsylvania’s struggle to approve the proposed U.S. Constitution in the fall of 1787. The shift in political fortunes culminated in 1790 in a significantly different constitution, one of more balanced powers controlled by the political elite and containing explicit protections of property rights.

Perhaps Wilson’s greatest contribution to America’s founding was his participation in the constitutional convention in Philadelphia in May, 1787. He became one of only six to sign both the Declaration of Independence and the Constitution, the others being George Clymer, Benjamin Franklin, Robert Morris, George Read, and Roger Sherman.

One of the most accomplished lawyers in the country, John Rutledge of South Carolina, future Supreme Court justice and, briefly, the Court’s chief justice, stayed at Wilson’s home during this time. The historian Forrest McDonald describes a plan by Rutledge and Wilson to “manage” the convention. Apparently, Wilson made similar plans with James Madison, Robert Morris, and Gouverneur Morris (no relation). Rutledge, in turn, was scheming with others. To complete the intrigue, Wilson and Rutledge kept their side discussions secret from each other. The plan seemed to bear fruit when Wilson and Rutledge were appointed to the Committee of Detail, charged with writing the substantive provisions of the Constitution from the delegates’ positions manifested in the votes of the state delegations. Considering the committee’s final product, however, their success appears to have been less than spectacular. It was not for lack of trying, however. Wilson spoke 165 times at the convention, more than anyone other than Gouverneur Morris.

Like his fellow connivers, Wilson took a very strong “nationalist” position in the convention. He was instrumental in the creation of the executive branch. Reacting against the weakness of the multiple executive structure of the Pennsylvania executive council model and the lack of an effective balance of power among the branches of government under his state’s constitution, he, like Alexander Hamilton, believed a unitary executive to be essential. The necessary “energy, dispatch, and responsibility to the office” would be assured best if a single person were in charge of the executive authority. As well, such a person would be positioned to blunt the self-interest of political factions which are endemic to legislatures. Wilson objected to the original proposal to have the president elected by the whole Congress or by the Senate alone. Instead, he proposed, the president should be elected by the people. Very few delegates had a taste for such unbridled democracy. Wilson then fell back to his second line of argument, that the president be selected by presidential electors chosen by the people of the states, but with the states divided into districts proportioned by population, like today’s congressional districts. This, too, was defeated by eight states to two. The matter was tabled for weeks. In the end, the current system, one that dilutes majoritarian control and favors the influence of states in their corporate capacity, prevailed.

An explanation of the term “nationalist.” As used herein, it has the classic meaning associated with the concept as it relates to the period of the founding of the United States and subsequent decades. It describes those who identified more with the new “nation,” i.e. the United States, than with the individual colonies, soon to become states, of their birth. Generalizations are, by definition, imprecise. Still, the most ardent American nationalists of the time were those who, like Wilson, Robert Morris, and Hamilton, were born abroad; those who, like Rutledge and Dickinson, had traveled or otherwise spent considerable time in Europe; and those who had significant business connections abroad. They also tended to be younger. The difference between these outlooks was less significant for the process of separating from Britain, than it was for the controversies over forming a “national” government and an identity of the “United States” through the Articles of Confederation and, subsequently, the Constitution of 1787. The nationalists sought to amend and, later, to abandon the Articles. As to the Constitution, the nationalists at the Philadelphia convention supported a stronger central government and, on the whole, more “democratic” components for that government than their opponents did. They also generally opposed a bill of rights as ostentatious ideological frippery. In the struggle over the states’ approval of the Constitution, they styled themselves as “Federalists” as a political maneuver and characterized their opponents as “Anti-Federalists.” After the Constitution was approved, most of them associated with Hamilton’s policies and the Federalist Party. In the sectionalist frictions before the Civil War, they were the “Unionists.” Regrettably, like other words in our hypersensitive culture, the term has been ideologically corrupted recently, so that its obvious meaning has become slanted. Paradoxically, even as the central government becomes powerful beyond the wildest charges of the Constitution’s early critics, the very concept of the United States as a “nation” is today under attack.

In the long wrangling over the structure of Congress, Wilson urged proportional representation, as he had done unsuccessfully a decade earlier in the debate over the Articles of Confederation. He also supported direct election of Congress by the people. In light of his moderate democratic faith in the consent of the governed, and coming as he did from a populous state, his position is hardly surprising. That noted, he favored a bicameral legislature with an upper chamber that would restrain the more numerous lower chamber and its tendency towards radical policies. The insecurity of property rights that resulted from the policies of the Constitutionalist-dominated unicameral Pennsylvania legislature had alarmed Wilson. Wilson adhered to his support for proportional representation in the Senate and direct popular election. Like his fellow large-state delegates Madison and Hamilton, eventually he resigned himself to the state-equality basis of the Senate under Roger Sherman’s Connecticut compromise and to election of that body by the state legislatures. He also supported the three-fifths clause of counting slaves for the purpose of apportionment of representatives. The purpose of that clause, first presented in 1783 as a proposed amendment to the Articles of Confederation, originally was part of a formula to assess taxes on the states based on population rather than property value. That purpose is also reflected in Article I of the Constitution.

During the debate in the Pennsylvania convention over the adoption of the Constitution, Wilson delivered his famous Speech in the State House Yard, a precursor to many arguments developed more fully in The Federalist. Wilson systematically addressed the claims of the Constitution’s critics. He defended his opposition to a Bill of Rights, declaring such a document to be superfluous and, indeed, inconsistent with a charter for a federal government of only delegated and enumerated powers. Copies of the speech were circulated widely by the Constitution’s supporters.

There were those, like Richard Henry Lee of Virginia, who claimed that the drafting convention in Philadelphia had gone beyond its mandate to propose only amendments to the Articles of Confederation and that, as a consequence, the proposed Constitution was revolutionary. Wilson drew on his philosophical roots to declare that “the people may change the constitutions whenever and however they please. This is a right of which no positive institution can ever deprive them.” This notion of popular constitutional change outside the formal amendment method set out in Article V of the Constitution was a self-evident truth to many Americans at the time. It has become much more controversial, as Americans have moved from the revolutionary ethos of the 1780s and a robust commitment to popular sovereignty to today’s more pliant population governed by an increasingly distant and unaccountable elite.

Wilson next turned his attention to the adoption of a new state constitution in Pennsylvania. At the same time, he sought the chief justiceship of the United States Supreme Court. Although that office went to John Jay of New York, President Washington appointed Wilson to be an associate justice. In that capacity, he participated in several significant early cases. As expected, he consistently took a nationalistic position. Thus, in 1793 in Chisholm v. Georgia, he joined the majority of justices in holding that the federal courts could summon states as defendants in actions brought by citizens of other states and to adjudicate those states’ obligations without their consent. Wilson reasoned that the Constitution was the product of the sovereignty of the people of the United States. This sovereignty, exercised for purposes of Union, had subordinated the states to suits in federal court as defined in Article III. The decision ran contrary to the long-established common law doctrine of state sovereign immunity. Swift and hostile political reaction in Georgia and Congress culminated in the adoption of the Eleventh Amendment to overturn Chisholm.

Wilson joined two other nationalistic decisions. One was the unpopular Ware v. Hylton in 1796, which upheld the rights of British creditors to collect fully debts owed to them. Those rights were guaranteed under the Paris Treaty that ended the Revolutionary War, but conflicted with a Virginia law that sought to limit those rights. Like his fellow-justices, Wilson applied the Supremacy Clause to strike down the state law. But he also recognized the binding nature of the law of nations, which had devolved to the United States on independence. The other was Hylton v. U.S. the same year, which upheld the constitutionality of the federal Carriage Tax Act. The case was an early exercise of the power of constitutional review by the Court over acts of Congress and a precursor to Marbury v. Madison. That power was one which Wilson had strenuously urged in the constitutional convention nine years earlier in support of a strong federal judiciary.

Depressed about his precarious economic situation and worn out from the rigors of circuit-riding duties as a Supreme Court justice, Wilson died from a stroke in 1798.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

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Essay 55 – Guest Essayist: Joerg Knipprath
https://en.wikipedia.org/wiki/Robert_Morris_(financier)#/media/File:Robert_Morris.jpg Robert Morris of Pennsylvania: Merchant, Superintendent of Finance, Agent of Marine, and Signer of the Declaration of Independence – Guest Essayist: Joerg Knipprath

Robert Morris, Jr., is one of only two men who signed the Declaration of Independence, the Articles of Confederation, and the Constitution of 1787. He thus was present at three critical moments in the founding of the United States. His most significant contributions to that founding occurred during the decade of turmoil framed by the first and last of these, that is, the period of the Revolutionary War and the Confederation.

Morris was of English birth, but came to Pennsylvania as a child. He inherited a substantial sum of money when his father, a tobacco merchant, died prematurely. After serving an apprenticeship with his father’s former business partner, Morris started a firm with that partner’s son. The firm became a success in the tobacco trade, marine insurance, and commerce in various merchant goods. For these reasons, Morris opposed British taxes on merchants and laws that hindered trade, especially that done with American vessels.

After the skirmishes at Lexington and Concord, Morris was selected to Pennsylvania’s Committee of Safety. His efforts to secure ammunition for the Continental Army led to his appointment to Pennsylvania’s delegation to the Second Continental Congress, which met in the capital at Philadelphia. Morris was torn between opposition to the British government’s actions and his loyalty to the Crown. He sought to mediate between the radicals pressing for independence and the traditionalists seeking to negotiate continued connection with the motherland. When it came time to vote on Richard Henry Lee’s motion for independence on July 2, 1776, Morris and fellow Pennsylvania moderate John Dickinson absented themselves to allow that colony’s delegation to vote in favor. Independence having been declared, Morris went with the tide and signed the Declaration the following month.

During the Revolutionary War, the very wealthy Morris assumed two roles befitting his talents, finance and shipping. Even before independence, he served on the Committee of Trade and the Marine Committee. Once the Articles of Confederation were finally approved in 1781, he was given more formal executive offices, Superintendent of Finance, analogous to the current Secretary of the Treasury, and Agent of Marine, the former version of the Secretary of the Navy. As well, he continued his efforts to secure supplies for the Continental Army through those positions.

It was particularly in the former capacity that he excelled and later received the appellation “Financier of the Revolution.” The new country was, not to mince words, a financial basket case. To term the promissory notes of the Confederation “junk bonds” would be flattery. The British had refused to allow the creation of a domestic banking system in the colonies, in order to maintain control over the economy, thwart independence, and promote the ascendancy of London as the world’s financial center over Amsterdam. Each colony had had its separate financial relationship with London. In the colonies themselves, someone wanting credit had to obtain loans from local merchants. The country was utterly without even a rudimentary integrated banking system.

Commerce, as well, had been regulated by the British to their advantage. Restriction on colonial trade with the West Indies and with continental European countries had been a recurring source of friction in the decade before the War. Shortly before American independence was declared, Parliament in December, 1775, had passed the Prohibitory Act, which outlawed commerce even between the colonies and England. With independence, the gloves came off entirely. The British navy threw a blockade around American ports, which brought legal sea-borne trade to a standstill. American efforts to avoid this blockade through smuggling and eventual licensing of privateers were spirited, but nothing more than a nuisance to the British maritime stranglehold on American commerce.

Money itself was both scarce and overabundant. Scarce, in the form of gold and silver; overabundant in the form of paper currency. Not only British coins circulated, but also those from many other European countries, especially Spanish silver pieces-of-eight (akin to the future silver dollar) and gold doubloons. States issued a few small copper coins along with significant amounts of “bills of credit,” that is, paper scrip which depreciated in value and was at the center of much commercial speculation, economic chaos, and political intrigue over the first decade of independence.

The Confederation’s currency, the Continental Dollar, was, if anything, even more pathetic. Aside from a few pattern coins struck in 1776 mostly in base metals, the currency was issued as paper. Although historians’ research has not been able to reach a definitive conclusion, it appears that, over the course of about five years, about 200 million dollars’ worth was printed. To put this in perspective, the population of the United States at the time was about .8% of that of today. The current purchasing power of the dollar is about one-thirtieth of the value of coins then, and the value of gold was about a hundred times the current nominal value. Due to massive British counterfeiting, even more than that amount of Continental currency actually may have circulated. Congress had no domestic sources of income, because it lacked the power to tax directly. Instead, it must seek requisitions from the states. Although the states were obligated under the Articles of Confederation to pay those requisitions, their performance was unsteady and varied from state to state, especially as the financial demands of the war, the turmoil of military campaigns, and the strangulation of commerce by the British blockade took their toll on their economies.

The printing of vast amounts of currency, out of proportion with what the country could back up with hard assets, such as gold and silver, led to serious inflation. The currency depreciated to such a point that, by 1781, it ceased to be used as a medium of exchange. It did, however, gain linguistic currency through the commonly-used contemptuous aphorism, “Not worth a Continental” to signify something of no value.

Enter Robert Morris. Congress appointed him Superintendent of Finance in 1781. Attempting to ameliorate the desperate financial situation of a bankrupt country, he began to finance the Continental Army’s supplies and payroll himself through “Morris notes” backed by his own credit and resources. His efforts over the next three years, while crucial in averting political disaster, still fell short. The seriousness of the matter was underscored by several near-mutinies among elements of the officer corps of the Army: the Pennsylvania Line Mutiny of January, 1781, the McDougall delegation’s delivery to Congress in December, 1782, of an ominous petition signed by a number of general officers, and the Newburgh Conspiracy by a large contingent of Army officers in early 1783. They all showed the simmering threat to the young republic from Congress’s broken promises caused by the lack of funds to pay the military. Morris’ correspondence with some staff officers at General Washington’s headquarters revealed a desire for new ways to force Congress to compel the states to meet their financial obligations. This gave rise to unsubstantiated rumors that the military’s discontent, especially the Newburgh Conspiracy, was supported, or even instigated, by Morris and other “nationalist” members of Congress.

In other financial matters, Morris directed his efforts to create a banking system, in order to improve access to private credit and to stabilize public credit. In this matter he was assisted by his able protege, Alexander Hamilton, himself trained in business and finance before joining the military. Morris issued a “Report on Public Credit” in 1781, which proposed that Congress assume the entire war debt and repay it fully through new revenue measures and a national bank. The first part of this ambitious endeavor failed when, in 1782, Rhode Island alone refused to approve an amendment to the Articles of Confederation to give Congress the power to tax imports at 5% as a source of revenue.

However, Morris did obtain a charter from the Confederation Congress on May 26, 1781, for the Bank of North America. Modeled after the Bank of England, it began its operation as the first commercial bank in the United States in early 1782. It also took on some functions of a proto-central bank in its attempt to stabilize public credit. About one-third of the bank shares were purchased by private entities, the rest by the United States. Morris used $450,000 of silver and gold from loans to Congress by the French government and Dutch bankers to fund the government’s purchase of its bank shares. He then issued notes backed by that gold and silver for loans, including to the United States. When Congress appeared unable to repay the loans, Morris sold portions of the government’s shares to investors to raise funds. Using those funds, he repaid the bank and then issued more notes to lend to the government to meet its financial obligations.

Unfortunately, despite Morris’ energy and financial wizardry, the Confederation’s debts continued to expand, with no clear way to repay them that was constitutionally permitted and politically feasible. European lenders had reached the end of their patience. Unwilling to remain a part of this calamitous system, Morris resigned from Congress in 1784, having been preceded in exit by Hamilton for similar reasons a year earlier.

As a constitutional matter, the Bank’s charter was challenged early as beyond Congress’ limited powers under the Articles of Confederation. Morris obtained a second charter, from Pennsylvania, in 1782. That state’s legislature briefly revoked the charter in 1785, before reinstating it in 1786. With the end of the Confederation in 1788 due to the adoption of the new Constitution, the Bank’s charter under the Articles expired. It continued to operate as a state institution within Pennsylvania. Through a series of mergers and acquisitions since then, the Bank’s remains are part of Wells Fargo & Co. today. Its role as a national bank, but one supported by a much sounder constitutional and economic foundation, was recreated by the Bank of the United States, chartered by Congress in 1791 at the urging of Alexander Hamilton, and by-then, Senator Robert Morris.

In his role as official Agent of Marine, as well as in an informal capacity before then, it was Morris’ job to supervise the creation of a navy and to direct operations. Congress authorized the construction of more than a dozen warships. These were no match for the Royal Navy. They were primarily used as commerce raiders to capture British merchant ships. Almost all were sunk, scuttled, or captured by 1778. Most American naval ships were armed converted merchant vessels often owned by private individuals. The most effective raiders, favored by Morris, were privateers, which were private vessels licensed by Congress to attack British shipping. Nearly 2,000 such letters of marque were issued by Congress, which caused an estimated $66 million of losses to British shipping. Privateering was so profitable for a time that Morris and other investors built and sent out their own privateers.

After the Revolutionary War, Morris focused on private business, including the favorite investment activity of moneyed Americans, land speculation. On the political side, he was selected by Pennsylvania for its delegation to the Constitutional Convention of 1787. He presided at the opening session on May 25, where he moved to make George Washington the presiding officer. He was a nationalist in outlook and, based on his experience as Superintendent of Finance under the Confederation, wanted to assure the general government a power to tax. He favored replacing the Articles, rather than just amending them. Beyond that, he had no real philosophical commitment to the particulars of the new constitution. Not being a politician or political theorist, he had little influence on the proceedings.

With the new government in place, the Pennsylvania legislature elected Morris to the United States Senate. President Washington wanted to make Morris Secretary of the Treasury. Morris demurred and recommended Hamilton in his stead. The two were closely aligned on economic and commercial policy. Hamilton’s “First and Second Reports on the Public Credit” in 1790 reflected Morris’ own “Report” of a decade earlier respecting the assumption and funding of war debts and the creation of a national commercial bank.

Morris’ genius in financial matters did not save him from economic disaster. He overextended himself in his land speculation. His company owned millions of acres of land. The Panic of 1797, triggered by the damage to international trade and immigration caused by the Napoleonic Wars in Europe, left Morris land-rich and cash-poor. As a consequence of depreciating land values and insufficient cash to pay creditors and taxes, he spent three and a half years in debtor’s prison. The incarceration only ended in August, 1801, after Congress passed a bankruptcy law for the purpose of obtaining his release. He was adjudged bankrupt, and his then-almost inconceivable remaining debt of nearly $3 million was discharged. Still, Morris and his wife were left virtually penniless, having received just a small pension. He died in 1806.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

Podcast by Maureen Quinn.

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Essay 48 - Guest Essayist: Joerg Knipprath

It is unlikely that many Americans today, even many New Yorkers, have heard of Francis Lewis. Even though he is one of only sixteen to have signed both the Declaration of Independence and the Articles of Confederation, he seems not to have had much impact on the political direction or the constitutional development of the country. Still, he was reputed by a 19th-century biographer to have been admired by his contemporaries. Today, Francis Lewis High School in Queens, New York, preserves his name. According to its website, the school is one of the most applied-to public high schools in New York City.

Lewis was born on March 21, 1713, in Llandaff, Wales. He was orphaned by age 5 and raised by an aunt. After attending school in Scotland and England, he became an apprentice at a mercantile house in London. At age 21, he inherited property from his father’s estate, sold it, converted the proceeds to merchandise, and sailed for New York in 1734. He left a portion of the merchandise for his business partner, Edward Annesley, and took the rest to Philadelphia to sell. He returned to New York in 1736.

Having become a successful businessman with contacts in several countries, he was entrusted by the British military with a contract to supply uniforms during the French and Indian War. In 1756, the first official year of that war, Lewis was at Fort Oswego in upstate New York. During his stay, the French and their Indian allies attacked in August. Lewis was standing next to the English commander when the latter was killed in the battle. The British surrendered the fort to the French, and Lewis was captured and eventually taken to France. It has been written that he was kept in a box or crate during that voyage. His harrowing captivity ended through a prisoner exchange when peace was achieved in 1763. Lewis returned to New York. The British government awarded him 5,000 acres in New York as compensation for the lost years of his life.

Lewis once more turned his attention to business, and he quickly prospered. With his large fortune firmly established, he retired from running his businesses and became active in politics. When Parliament passed the Stamp Act in 1765, he changed his pro-Royalist sentiments and joined the Stamp Act Congress organized to protest the tax.

Thereafter, his political activism deepened. That same year, he was a founding member of the local chapter of the Sons of Liberty, one of a loosely-connected collection around the colonies of silk-stockinged rabble-rousers with their lower-class auxiliaries as enforcers. When the crisis between Britain and her colonies began to worsen, Lewis joined the Committee of Fifty-one, organized in New York in 1774 to protest the closing of the port of Boston to commerce. When the Committee was succeeded by the Committee of Sixty in 1775 to enforce the colonies’ trade embargo against British goods, which had been adopted by the First Continental Congress, Lewis joined that, as well. That committee was replaced, in short order, by the Committee of One Hundred, which directed the colonists’ program against Parliament until the first New York Provincial Assembly met and took over that task on May 23, 1775. The Assembly soon elected Lewis to be a delegate to the Second Continental Congress, where he served between 1775 and 1779.

In the Congress, he signed the Olive Branch Petition on July 5, 1775. That missive, written by John Dickinson of Pennsylvania, was a last attempt by the moderates in the Congress to avert war. The petition assured King George of the Americans’ loyalty to him. Dickinson pleaded with the king to create a more equitable and permanent political and trade arrangement between Britain and her colonies than existed as a result of Parliament’s various unpopular and, to the Americans, unconstitutional, acts. The petition failed to achieve its purpose. The King refused even to read it. Instead, on August 23, 1775, he declared the American colonies to be in rebellion. The message of peace and compromise of the Olive Branch Petition likely was undermined by the Congress’ adoption the following day of the Declaration of the Causes and Necessity of Taking Up Arms. Drafted in parts by Thomas Jefferson and John Dickinson, that document castigated Parliament’s tax and trade policies and its punitive acts. It did so in rather incendiary language, in sharp contrast to the tone of the Olive Branch Petition. As well, John Adams’ letter to a friend, intercepted by the British and forwarded to London, which belittled the petition and complained that the Americans should have built up a navy and taken British officials prisoner, could not have helped the effort to persuade the British government of the Americans’ sincerity.

As the final break with Britain loomed, the Second Continental Congress adopted the Declaration of Independence. The vote on Richard Henry Lee’s resolution to declare independence, on July 2, 1776, was approved by 12 delegations. Lewis and the rest of the New York delegates had to abstain because they had not yet received instructions from the provincial assembly to proceed. After his delegation received the proper authorization from New York, Lewis and the other members signed the Declaration on August 2.

Lewis used his wealth and business acumen to assist the new country. He is estimated to have been the fifth-wealthiest signer of the Declaration. Before and during the war, he was instrumental in procuring uniforms, arms, and supplies for the Continental Army, both on his own account and through his administrative talents. He strongly sided with General George Washington against the latter’s critics in the “Conway Cabal” who sought to replace Washington with the politically popular, but militarily incompetent, General Horatio Gates. Lewis’ service in the Congress also included approving the Articles of Confederation in 1777 and being Chairman of the Continental Board of Admiralty.

Despite his wealth and his involvement in public affairs at an exceptional time, Lewis was no stranger to personal tragedy. Already mentioned was his loss of both parents as a young child, left also without siblings. Only three of his seven children reached adulthood. Perhaps most traumatic was the fate that befell his wife. Lewis had married Elizabeth Annesley, his business partner’s sister, in 1745. While Lewis was away, in 1776, his house in Whitestone, in today’s Queens, New York, was destroyed by the British after the Battle of Brooklyn. Soldiers from a light cavalry troop pillaged the house, and a warship then opened fire. Worse, the British took his wife prisoner and held her for two years. Historical sources aver that the conditions of her captivity were inhumane in that the British denied her a bed, a change of clothing, or adequate food over several weeks.

Eventually, General Washington was apprised of her situation. He thereupon ordered the seizure of the wife of the British Pay-Master General and the wife of the British Attorney General for Pennsylvania. Both were to be held under the same conditions as Elizabeth Lewis. A prisoner exchange was then arranged, and Elizabeth was released in 1778. She returned to be with her husband in Philadelphia. Unfortunately, her captivity had so ravaged her health that she died not long afterwards, in June, 1779. This episode illustrates the suffering that befell families on both sides of what was, in essence, a civil war. It often was a war between neighbors, former friends, and even family members, not one between organized armies of strangers with different lands, cultures, and languages.

Francis Lewis retired from public service in 1781. Thereafter, he lived a life of leisure, with books and plenty of family time with his two sons and their children. A daughter had married an English naval officer and left North America, never to return, a none-too-rare sad consequence of the war, and one that befell Benjamin Franklin’s family, as well. Lewis died on December 31, 1802.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

Podcast by Maureen Quinn.

 

 

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Essay 37 – Guest Essayist: Joerg Knipprath

If Americans know of John Adams at all, it is probably somewhat vaguely as a long-ago President. Adams’s tenures as Vice-President and President are not generally regarded among the memorable in American history. He was not charismatic, physically imposing, or politically adept. In seeming contrast to his Puritan roots, he also was rather vain. As a result, he did not come easily by loyal friends in the political world.

As Vice-President, he is probably best known for his efforts to devise titles for the President and others along the lines he had seen during his residence in the Dutch Republic, where top government officials were addressed as “His Highmightiness.” He proposed that the President be called some version of “His Excellency” or “His Majesty.” A Senate committee went further, reporting a proposal that the President should be addressed as “His Highness the President of the United States of America and the Protector of the Rights of the Same.” James Madison and many others raised objections about the monarchical tone, and, fortunately, the House refused to approve. For his diligent efforts in this matter, Adams was the target of many jocular “titles.” Senator Ralph Izard of South Carolina referred to the short, plump Adams as “His Rotundity,” and that biting remark stuck.

Despite some policy successes, including the build-up of the Navy, Adams’ single term as President was marked by foreign relations turmoil, such as the naval war with France, and domestic missteps, such as the Alien and Sedition Acts. Adams saw the office as a chore, and avoided his duties at a rate higher than any other occupant of the office. Samuel Eliot Morison relates that, in four years, Adams stayed away for 385 days, returning to his farm in Quincy, Massachusetts.

The Adams’ sojourns at their farm reflected a deep connection to their New England roots. In the 1770s and 1780s, there was probably no single American who was as influential in the overall development of revolutionary and constitutional theory as John Adams. His thoughts often reflected an enlightened Puritanism. During the Revolutionary War, Adams was a diligent and successful administrator. He was an ally and confidant of General George Washington, although, typical of the lack of mutual understanding among the elites from different colonies, Adams did not trust Washington unreservedly. Several times during and after the War, he was selected to undertake important diplomatic tasks. In the words of Benjamin Franklin, Adams was “always honest, often great, sometimes mad.”

Adams was an attorney. He had already made a name for himself, but still took a great professional risk, when he and two other attorneys defended a British officer and eight soldiers accused of murder in the “Boston Massacre” of March 5, 1770. After numerous provocations, and in fear of their safety, the soldiers had fired on a violent mob of colonials, five of whom were killed. The officer was tried for murder seven months later, the soldiers a couple of months after that. All were acquitted of the capital murder charges, although two soldiers were convicted of manslaughter. The trial produced one of Adams’ well-known quotations, “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.”

Adams’ stature as a member of the radical faction against the British helped him, as well as the soldiers, with the jury. So did his family connections. His cousin Samuel Adams was of similarly militant inclination against the British. Both cousins were trained in classical history and political theory. Both were skilled debaters, though neither was a particularly compelling oralist. But John was the more intellectual “office” type, while cousin Sam was the more hands-on troublemaker. John wrote resolves, treatises, and constitutions, while Sam focused on organizing protests and riots, writing proclamations, and distributing outlandish propaganda.

John Adams had become involved in the political struggle that would culminate in American independence, during the controversy over the writs of assistance that the British used to combat smugglers who sought to avoid the Sugar Act import duties. Writs of assistance were general search warrants whose open-ended nature the colonials saw as violations of their rights as Englishmen. James Otis, Jr., was hired to challenge these writs in Paxton’s Case in 1761.

Otis gave a long and forceful argument that the act authorizing these writs was void, because, “An act against the Constitution is void; an act against natural equity is void.” This was a novel assertion in English law. It challenged the supremacy of Parliament, and, contrary to long-established English constitutional custom, suggested that the courts could refuse to apply such an act to controversies before them. Otis lost his case. Still, his argument provided the germ for the gradual development of basic principles of American constitutional law about the relationship between constitutions and ordinary laws, and about the role of an independent judiciary. As to the writs of assistance, five years later, the British attorney general agreed with Otis about their invalidity. Today, they are prohibited under the Fourth Amendment of the Constitution.

Adams was well-acquainted with Otis and was in the audience at the trial. He was much impressed with the argument, which clearly influenced his later views of balanced government and his drafting of the Massachusetts constitution. Adams also promoted Otis as a leading patriot voice. Both joined in their opposition to the next issue, Parliament passing the Revenue Act of 1764. The colonial assemblies objected that such involuntary taxes were invalid, a sentiment that eventually was captured in the slogan coined by Otis, “No taxation without representation is tyranny.”

In the disputes leading to the Declaration of Independence, Adams emerged as a prominent political theorist for the cause. His work Novanglus, of February 6, 1775, rejected Parliament’s control over the colonies. Adams instead claimed that the colonies and Great Britain were separate states, united only through the person of the king in a dominion status similar to that of England and Scotland. Based on the American theory of representation, and the practical obstacles to American representation in Parliament, such as physical distance, the colonial assemblies governed the colonies, while Parliament governed Great Britain. In an apparent contradiction to this argument, he did allow that Parliament could be in charge of foreign policy and trade, but analogized this to a commercial treaty approved by the Americans explicitly or by custom, rather than an inherent power.

An important part of Adams’s theory in the Novanglus essay was that the colonies, separately and in union, had their own constitutions that were not subject to alteration by Parliament. There appeared the influence of Otis’ earlier arguments that distinguished between Parliament’s legislative powers and constitutional limits thereon. In separate publications, James Wilson and Thomas Jefferson, future signers of the Declaration reached the same conclusions, as well. All rejected the “empire theory,” under which Parliament exercised control over all parts. These three were part of the “radicals” who also opposed the First Continental Congress’ Declaration of Rights and Grievances adopted on October 14, 1774. Congress there had accepted Parliament’s inherent power over the colonies’ external commerce, while rejecting that body’s authority over other matters, such as revenue. Adams adamantly rejected the moderate federal structure that the Congress’ Declaration of Rights embraced. Instead, as he wrote in Novanglus, “I agree, that ‘two supreme and independent authorities cannot exist in the same state,’ any more than two supreme beings in one universe; And, therefore, I contend, that our provincial legislatures are the only supreme authorities in our colonies.”

As the drive to revolution became unstoppable, and the Second Continental Congress declared the colonial charters void, Adams wrote a letter to George Wythe of Virginia, which provided a written plan of government to be considered by that state. The letter eventually was published by Richard Henry Lee of Virginia as Thoughts on Government, and its influence on the Virginia convention’s work was evident to Adams’ contemporaries, and to Adams himself. As he wrote to James Warren, on June 16, 1776, “But I am amazed to find an Inclination So prevalent throughout all the southern and middle Colonies to adopt Plans, so nearly resembling, that in the Thoughts on Government.”

At the same time, the Second Continental Congress appointed Adams to the committee to propose a declaration of independence. The initial drafting task fell to his friend and future political rival, Thomas Jefferson. Jefferson proposed that Adams write the declaration, but Adams demurred. It is said that Adams justified his refusal by telling Jefferson, “Reason first: You are a Virginian and a Virginian ought to appear at the head of this business. Reason second: I am obnoxious, suspected and unpopular. You are very much otherwise. Reason third: You can write ten times better than I can.”

With the war under way, Adams continued to serve in the Continental Congress. He, along with Benjamin Franklin and Edward Rutledge, composed a delegation sent to discuss a political accommodation with the British after a disastrous American military defeat on Long Island. The conference was requested by Admiral Lord Richard Howe, the supreme commander of British forces in North America, and his brother General William Howe, the commander-in-chief of the British land forces. The Howe brothers were Whigs and not unsympathetic to the American cause. Nevertheless, nothing came of the conference, and, as loyal officers of the king, the Howes turned to their job of settling the matter militarily.

The condition of the American army was deplorable, from a dearth of supplies and a lack of training and discipline. Adams was appointed head of the Board of War, the analog to the Secretary of Defense today. He immediately pressed Congress to accede to General Washington’s requests to maintain the army. Adams proposed that an enlistee who joined for the duration of the war be given $20 plus 100 acres land. To maintain discipline, punishments for various offenses were raised. For example, drunkenness on duty became punishable by 100 lashes instead of 39. The number of crimes subject to the death penalty was increased, as well. However, these Articles of War, written by Adams and based on their British counterpart, also provided proper procedures for the accused. Finally, Adams proposed creation of a military academy for better military training for officers, but nothing came of that until after the war.

Adams initially opposed alliance with France, but the desperate state of the American quest for independence eventually caused him to change his mind. As the war wound to a successful conclusion, Adams arrived in Paris as part of the five-member American delegation. Because several members, including Adams, distrusted the French diplomats, the Americans on November 30, 1782, made a separate preliminary treaty with Great Britain. It took nearly a year for the French and British to agree to their own terms, and peace was finally achieved on September 3, 1783.

Adams, who was an Anglophile by family roots and political philosophy, quickly wished to reestablish close commercial and diplomatic ties with Great Britain after the war. He became the first American minister to London in 1785. When he was received by George III, he hoped that “the old good nature and the old good humor” between the two countries would be rekindled. The king was willing, but the government was not. Efforts to enter a commercial treaty failed, due in part to the weakness of the Congress under the Articles of Confederation. The foreign department dismissively suggested that the states send delegations, instead. Adams left the post in 1788, frustrated and disappointed.

In addition to his numerous administrative and diplomatic duties, Adams continued to lead on another political issue, that of drafting constitutions and developing theoretical foundations for them. His principal success was the Massachusetts Constitution of 1780. The people of the state had rejected a constitution proposed by the legislature in 1778. Like other “first wave” state constitutions of the 1770s, that version had mixed different powers, vested primary power in the legislature, and contained no bill of rights.

Adams, like most of the era’s contributors to American constitutional developments, had read the classic ancient political writers, such as Plato, Aristotle, and Polybius, as well as more recent ones, such as Locke and Montesquieu. In their original languages. Adams, cousin Sam Adams, and James Bowdoin were selected by the Massachusetts convention in 1779 to draft a constitution to be submitted to the people. The two other members left the task to Adams.

The completed work, The Report of a Constitution, provided several cornerstones for future American constitutionalism. He proposed a government whose structure was more balanced among three independent branches than the legislature-centric state constitutions rushed out by the state legislatures during the drive to independence in the mid-1770s. Indeed, Article XXX of the Declaration of the Rights in Adams’s constitution offered an almost cartoonish version of an unyielding separation of powers. The Declaration also enumerated a long list of rights the legislature was prohibited from infringing. Finally, influenced by The Essex Result, a petition written by Theophilus Parsons against the proposed constitution of 1778, this new constitution was produced by a convention selected solely for that purpose, rather than by a legislative committee. Moreover, it was approved by town meetings, rather than by the legislature itself. This distinction between the function and status of ordinary legislatures and constitutional conventions became a critical catalyst in the development of American constitutional theory going forward and in the emergence of the judiciary’s power of constitutional review.

Adams’s creation influenced the next wave of state constitutions, as well as the drafters of the United States Constitution in 1787. Though substantially amended since then, the Massachusetts constitution is the oldest still in effect today.

The final work of Adams about constitutions, and perhaps his most comprehensive, was A Defence of the Constitutions of Government of the United States of America, written in three volumes over the course of a little more than a year beginning in 1786. It was a response to criticism by Baron Anne Robert Jacques Turgot, a French government official, of the emerging systems of separation of powers in the American state constitutions. Turgot and others dismissed those constitutions as just the British structure with a republican gloss. Governors who were independent of the legislatures mimicked the king, and bicameral legislatures the British Parliament, with the senates taking the role of the House of Lords. The criticism stung, as Adams himself had drafted such a “mixed government” for Massachusetts.

Defence takes the form of a series of letters as if written by a traveler around Europe. At the time, Adams was the American minister to the English court. His focus became writing, his diplomatic obligations taking a subsidiary role. Summoning his vast knowledge of history and political theory acquired through diligent research, he examined numerous republican constitutions from antiquity forwards. He aimed to expose the weaknesses of the democratic structures and “pure” systems of government favored by Turgot. History, the record of human experience, not ideology, was the sole reliable guide for Adams. Only balanced governments had survived the test of time, a lesson applied to the young American republics.

Like Aristotle and Polybius, Adams feared that pure forms, especially democracies, were unstable and inevitably led to tyranny, because of man’s lust for power due to his fallen nature. Classic republics fared little better, because they, too, relied on human virtue to sustain them. Adams doubted that Americans possessed sufficient virtue, though strong government direction through support of religion and morality might have a positive influence. In early 1776, he wrote that there was “so much Venality and Corruption, so much Avarice and Ambition, such a Rage for Profit and Commerce among all Ranks and Degrees of Men even in America” that put in question whether Americans had “public Virtue enough to support a Republic.” In contrast, much later he would say “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” In between, his defense of the American state constitutions was founded on the practical recognition that virtue is not enough to ensure liberty.

Adams was not at the Philadelphia convention, but the first volume of Defence was well-known to many of the participants. Though Adams was criticized by some for what they saw as an abandonment of militant republicanism, the framers of the Constitution adopted a similar system. The “mixed government” of the Massachusetts Constitution of 1787 became the system of “checks and balances” of the United States Constitution which would augment reliance on the people’s virtue in sustaining liberty. As Madison wrote in The Federalist No. 51, to preserve liberty while allowing government to function, “A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

Podcast by Maureen Quinn.

 

 

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Essay 26 – Guest Essayist: Joerg Knipprath

“He has affected to render the Military independent of and superior to the Civil power.”

It was an article of faith among English and American advocates of classic republicanism of the 18th century that the military must be subject to civilian control. In the United States Constitution, that faith is manifested expressly in the President’s role as commander-in-chief of the armed forces, including of the states’ militias when called into service of the United States. Moreover, the President, with the consent of the Senate, appoints military officers. In addition, at least five clauses of Article I, Section 8, of the Constitution assign to Congress various roles in controlling the armed forces of the United States and the states’ militias. One of those, prohibiting appropriations of funds for a term longer than two years, was seen by the framers as a cornerstone of control over the military. James Madison went so far as to claim in The Federalist No. 41: “Next to the effectual establishment of the union, the best possible precaution against danger from standing armies, is a limitation of the term for which revenue may be appropriated to their support.”

A similar spirit was manifested in the Articles of Confederation. Article IX of that document gave to Congress the power to appoint the high-level officers of the land forces in the service of the “united states” and all officers of the naval forces. Congress also would make the rules and regulations for those armed forces and direct their operations.

It was the asserted refusal of the British to subordinate their military forces in the colonies to civilian control that created one of the points of conflict leading to the American revolution. Both the Virginia Constitution of 1776 and the Declaration of Independence of the thirteen “united states” denounced the king’s “affect[ing] to render the Military independent of and superior to, the Civil power.” This was not in fact the case in Great Britain itself. The king and Parliament retained control of the military. Moreover, as opponents of the Constitution of 1787 pointed out later, military appropriations by Parliament were limited to a single year, even tighter than the proposed American restriction.

Therefore, the complaint was not against English constitutional custom regarding the relationship between the civil and military authorities, which was, in fact, quite republican in nature. The last time that the military in England was not under civilian control had been during the dictatorship of Lieutenant-General Oliver Cromwell in the 1650s. Instead, the charge against George III arose out of the Americans’ experience with the British treatment of the colonial governments, particularly the events in Massachusetts Bay.

As early as 1765, the Quartering Act required any colony in which British troops were stationed to supply them with provisions and lodging. If lodging in barracks was unavailable, the soldiers might be housed in certain private buildings, typically in inns and establishments that sold alcohol. As a last resort, the troops were to be housed in unoccupied other private buildings. The colonists saw this as a form of taxation to which they had not consented through their assemblies. Moreover, this act appeared to presage the stationing of a standing peacetime army on American soil, another abomination in the eyes of conscientious republicans.

The Act was put to the test in New York. In 1766, the colony’s assembly, which had acted under its own quartering law until the beginning of 1764, refused to comply with the Act. With the 1,500 troops in New York City obliged to remain on their cramped ships, Parliament voted to suspend the assembly in 1767, though no concrete action was taken to enforce the suspension. In 1768, the assembly agreed to provide the funds demanded by the British for supplies for the troops, except the expenses for beer and rum. The Secretary of State for the Colonies, Lord Hillsborough, acting on another vote by Parliament in 1769, thereupon suspended the assembly from further meetings. Once more, no further concrete action was taken, perhaps because a newly-elected assembly soon voted the full requisition.

The events of the mid-1770s brought about increasingly stern reactions from Parliament. The Boston Tea Party, in particular, was a catalyst for British resolve to bring the colonists to heel. The Boston Port Act of 1774 required the city to pay for the tea and for losses to British officials in the Boston riots. Until those obligations were satisfied, the port was sealed off to trade. The Act was enforced by British warships and several regiments of troops. More pointedly, the commanding-in-chief of British forces in North America, General Thomas Gage, was also appointed governor.

Gage replaced Thomas Hutchinson, a prominent local businessman and published historian. Hutchinson had deep family roots in New England, and his appointment was in line with emerging British policy to appoint reliable locals to these executive positions. Like many Loyalists, Hutchinson was torn between those family roots and his loyalty to the Crown. Attacked by both sides as too closely aligned with the other, his attempt to steer a middle course failed. Much of the blame was undeserved, but at a time when the utmost political sensibility and skill were required, Hutchinson too often was tone-deaf. Sam Adams and the other radicals blamed him for, well, pretty much everything. In turn, Lord North, the prime minister, blamed him for the deteriorating political situation in Massachusetts, which led to the appointment of General Gage. In another ironic twist, Gage eventually was removed from his offices, because the British thought him to be too lenient and sympathetic to the colonials.

The Massachusetts Government Act of May 20, 1774, altered the governing charter of Massachusetts Bay. Henceforth, the governor would appoint the council, which was previously elected by the colonial assembly. He also would appoint all lower court judges and nominate judges of the superior courts. Further, no town could call a meeting of its council more than once per year without the governor’s consent. In effect, this put both the judicial and legislative functions under more direct control of Gage, who, as noted, was the military commander.

Finally, Parliament passed the Quartering Act of June 2, 1774. This allowed the governor to order troops to be housed in private buildings without legislative authorization. From the British perspective, this was a reasonable imposition. It was to be used if no funds were appropriated by the colonial assemblies to find other quarters for the British soldiers, who had been forced to camp out on Boston Common for a long period. Recent historical research has determined that the Act, like its predecessors, only permitted quartering of troops in unoccupied buildings.

The locals, however, were convinced that the Act allowed troops to be housed in occupied homes. To them, this was yet another outrage against their liberties and a violation of what they saw as their ancient rights of Englishmen. After all, both the English Petition of Right of 1628 and the Declaration of Rights of 1689 had listed quartering of soldiers in homes without the consent of the owners or authorization by law among the grievances against the Stuart kings, Charles I and James II, respectively. It is no surprise then that, on independence, Article XXVII of the Massachusetts constitution of 1780 declared: “In time of peace no soldier ought to be quartered in any house without the consent of the owner; and in time of war such quarters ought not to be made but by the civil magistrate, in a manner ordained by the legislature.” At the time, “ought” meant a duty owed and was analogous to “must.” The Third Amendment to the Constitution contains an almost verbatim restriction.

The formal subordination of the military to the civil power remains today. In addition to the constitutional sections that deal with such subordination, an additional provision seeks to maintain at least a separation of the two. Article I, Section 6, of the Constitution prohibits anyone “holding any office under the United States [from being] a member of either house during his continuance in office.” Although the matter is not resolved, it appears from a decision of the Court of Appeals for the Armed Forces, United States v. Lane, that a member of Congress could not serve as an appellate military judge. Senator Lindsey Graham was a member of the U.S. Air Force Standby Reserve, as well as a Senator, when he was appointed to serve as a military judge. The court held that a military judge was an officer of the United States, and that the “Incompatibility Clause” disqualified Graham.

However, the Lane court refused to address whether or not all service or status in the military reserve disqualified one from being a member of Congress. Presumably being an active member of the military would do so for various reasons, constitutional and practical. However, members of Congress have been officers in the reserves while simultaneously serving in their legislative capacity. Finally, the subordination principle does not apply to former military officers or to service in a non-legislative capacity, at least so long as the person is subject to removal by the president and civilian control over the military is retained.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.


Podcast By Maureen Quinn

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Essay 20 - Guest Essayist: Joerg Knipprath

“He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.”

When Thomas Jefferson accused George III, in the Declaration of Independence, of having refused for a long time to permit elections for previously-dissolved colonial legislatures, he had several examples for reference. As early as 1768, Governor Sir Francis Bernard dissolved the Massachusetts assembly on the order of Lord Hillsborough, the Secretary of State for the Colonies, after the assembly had circulated a letter to the other colonial assemblies about the constitutional defects of the Townshend Revenue Acts. This effectively left Boston without a government for a year.

A year before, in 1767, the British government had ordered the New York assembly suspended when it refused to comply with the Quartering Act of 1765. As a result, New York was without a government for most of 1767 to 1769, until an election in the fall of 1769 produced a more pliant assembly.

In October, 1774, after Parliament had adopted the Massachusetts Government Act earlier that year, General Thomas Gage, the governor, dissolved the colony’s assembly. The Act had several parts that struck against the colony’s self-government. It repealed the Massachusetts Bay Charter of 1691, made the hitherto elected council appointive by the governor, and prohibited town meetings more than once per year unless the governor consented. The Act also made other provincial offices, including many judgeships, appointive rather than elective, and those officers could be removed at any time by the governor. To add insult to injury, the first governor selected, General Gage, was also the military commander. This move placed the military authorities in charge of civil government.

From the British perspective, the Act was necessary to curb the radical tendencies of this most radical province. Unfortunately for the British, their political tactics failed in Massachusetts and likely hurt their overall strategy of both pacifying the colonies and advancing their new model of imperial administration. Instead, the Americans simply circumvented the restrictions by electing an ultra vires provincial congress, which met at Concord, elected John Hancock president, organized an administration, voted taxes, collected arms, drilled a militia, and operated the courts. This assemblage governed Massachusetts until the state’s constitution of 1780 was approved. The colony effectively was independent, and the royal governor’s authority was restricted to the city of Boston.

Similar events transpired in other colonies. In Virginia, the royal governor dissolved the House of Burgesses in May, 1774. Led by Patrick Henry and Thomas Jefferson, a rump portion of that assembly called for elections to a provincial congress to meet in Williamsburg on August 1. By the end of 1774, all colonies except Georgia, Pennsylvania and New York had followed suit. Those three fell in line the following year. So, while Jefferson’s charge in the Declaration of Independence was historically correct, the dissolutions of colonial assemblies about which he complained also quickly became irrelevant as a matter of practical government. If anything, those actions by the king and Parliament did not impede self-government, they made it more profound.

The English king long had the power to prorogue (that is, “suspend”) or dissolve Parliament and rule by decree. Charles I had used it to prevent Parliament from meeting for years. As the constitutional position of Parliament strengthened against the king in the 17th and 18th centuries, that power had to be used judiciously, if at all. One of the political missteps by James II that led to the Glorious Revolution of 1688 was his dissolution of Parliament after that body had refused to repeal the pro-Protestant Test Acts.

For the Americans, this authority to prorogue or dissolve legislative bodies and to delay elections was a threat to the independence of their assemblies, the principal protectors of liberty, and distorted the emerging conception of a functional separation of powers. Thus, Article X of the Virginia constitution of 1776, prohibited the governor from proroguing or dissolving the legislature. The Massachusetts constitution of 1780 carefully limited these powers to specified circumstances. The New York constitution was similar. The U.S. Constitution of 1787 goes further and restricts the president to only a limited power to adjourn Congress, but no power to prorogue or dissolve that body.

Jefferson’s observation that “the Legislative powers, incapable of Annihilation, have returned to the people at large for their exercise …” makes two points. First, it postulates that lawmaking, that is, the power to make rules that govern human actions, always exists. That power might be in Parliament, in the assemblies, the king, or the people as a whole. When the king declared the colonies in rebellion on August 23, 1775; when Parliament enacted the Prohibitory Act on December 22, 1775, which declared the colonies outside British protection, blockaded colonial ports, and made all colonial vessels lawful prizes subject to capture; and when the local assemblies were dissolved by the British authorities, the existing constitutional system had been abandoned. The actions of the Continental Congress and of the several former colonies separately in declaring independence and taking control of their fate by setting up new constitutional arrangements, was the inevitable result. After all, this was no different, in the eyes of Americans, than Parliament’s own actions in 1688-89 during the Glorious Revolution. Then, James II had abandoned the throne, which allowed Parliament to assume basic constitutional powers and create a new political order.

Second, the observation reflects Jefferson’s reading of John Locke and other social contract theorists. The British government’s abandonment of its constitutional relationship with the colonies had breached the contract on which the political commonwealth was based. Thus, the people were placed in a new “pre-political” condition. In this stage, each individual was sovereign over his or her own affairs. The legislative power had not been annihilated, but rested within each individual for himself or herself. As anticipated by the social contract theorists and reflected in the Declaration of Independence itself, these individuals would establish new forms of government in order better to secure their God-given inalienable rights to life, liberty, and the pursuit of happiness. By the consent of the governed, the legislative power would then be exercised by the people collectively as in a democracy, or, more likely, by an assembly elected by the people as in a republic.

That the British actions, especially those of King George, amounted to a breach of contract was bolstered by the function of royal charters in the constitutional status and political operation of the colonies. Those charters gave certain powers of self-government to the Americans through their elected assemblies and established the constitutional rights and obligations of all parties, including the king. Moreover, the general neglect of colonial affairs by the government in London over more than a century had accreted various political powers to the local assemblies through repeated practice that reflected a gradual evolution of constitutional custom. By ignoring those arrangements or, more blatantly, revoking them, as had happened in 1774 to Massachusetts Bay’s Charter of 1691, the king and Parliament had breached those contracts. In turn, the Americans were relieved of further obligations to abide by those arrangements, although, curiously, Connecticut and Rhode Island continued to use their royal charters, with appropriate modifications, as their state constitutions into the 19th century.

Jefferson’s complaint that “the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within,” seems disingenuous, coming from the American side. After all, the “convulsions within” typically were the products of provocateurs such as the Sons of Liberty or of colonial mobs incited by the rhetoric and actions of those provocateurs. The Boston Tea Party, the Boston Massacre, the Gaspee affair, and assorted other riots and acts of sabotage and unadulterated insurrection were deliberate actions by the Americans. The British responses, often ham-handed, might inflame tensions further, but they were reactive.

Nevertheless, Jefferson had a point. The principal purpose of government is to provide security against external and internal threats to the peace of the community. Whatever merit there is in today’s common perception that government is an indulgent parent that provides food, shelter and health care for all, if a government fails to fulfill the classic obligation of providing security, it will fall. In the Lockean social contract formulation, government is formed to secure one’s rights in one’s person and estate better than would exist otherwise. In Thomas Hobbes’s more pessimistic view of the human condition, security by any means is the be-all and end-all of government. Under either conception, failure to carry out that obligation is a breach of the social contract.

That same understanding of the core purpose of government is found in the Constitution. As John Jay wrote in The Federalist No. 3,

“Among the many objects to which a wise and free people find it necessary to draw their attention, that of providing for their safety seems to be the first….At present I mean only to consider it as it respects security for the preservation of peace and tranquillity, as well against dangers, from foreign arms and influence, as against dangers arising from domestic causes.” [Emphasis in the original.]

Indeed, the adoption of the Constitution itself, in a manner contrary to the Articles of Confederation, was defended by James Madison in The Federalist No. 43 in language reminiscent of the Declaration of Independence,

“by recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature’s God, which declares that the safety and happiness of society, are the objects to which all political institutions aim, and to which all such institutions must be sacrificed.”

The Constitution itself grants broad war powers to the president and Congress, along with the power of Congress of “calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions.” The president, as commander in chief of the armed forces, as well as of the militia when called into service of the United States, is also authorized to protect the security of the people from foreign invasion and domestic causes. As needed, courts have interpreted those powers expansively. True, Americans pay at least lip service to the idea that even those governmental powers are limited in some way by the Constitution. Courts have held that there also does not exist a formally distinct “Emergency” or “War” Constitution. Reality, however, is harsher. Jefferson himself, as well as Abraham Lincoln, and any number of politicians and judges have consistently recognized the paramount principle of self-preservation and security of the society, to which, in the end, all other considerations will be subordinated. This calculation is pithily expressed in the aphorism, “The Constitution is not a suicide pact.”

The British government failed to carry out that fundamental obligation of assuring peace and domestic tranquillity, either by resolute military action or, preferably, by deft political maneuvering to adjust the constitutional order to accommodate the major American grievances and halt the drift towards full separation. It does not matter which side gets the credit or blame for specific events or particular political steps. The constituted government has legitimacy to govern only if it satisfies the reason for which it is formed. Failure to do so forfeits that government’s legitimacy, and the people will seek to establish another by any means available to them, even a replacement of the entire constitutional order by revolution.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.


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Essay 6 - Guest Essayist: Joerg Knipprath

On June 7, 1776, delegate Richard Henry Lee of Virginia rose to move in the Second Continental Congress, “That these United Colonies are, and of right ought to be, Independent States, that they are absolved from all allegiance to the British Crown, and that all connection between them and the State of Great Britain is, and ought to be, totally dissolved….” The motion was not immediately considered, because four states, lacking instructions from their assemblies, were not prepared to vote. Nevertheless, Congress appointed a committee of five to prepare a declaration of independence. The committee, composed of Benjamin Franklin, John Adams, Roger Sherman, Robert R. Livingston, and Thomas Jefferson, assigned the task of preparing the initial draft to Jefferson.

After numerous revisions by Adams and Franklin and, eventually, by Congress itself, the final draft and report were presented to Congress on July 2, 1776. Formal adoption of the Declaration had to await a vote on Lee’s motion for independence. That was approved by the states the same day, with only the New York delegation abstaining. After a few more minor changes, the Declaration was adopted on July 4, 1776. Copies were sent to the states the next day, and it was publicly read from the balcony at Independence Hall on the 8th. Finally, on August 2nd, the document was signed.

General Washington, at New York, received a copy and a letter from John Hancock. The next day, July 9, Washington had the Declaration read to his troops. Whereas those troops responded with great enthusiasm for the cause, reaction elsewhere to the Declaration was divided, to say the least. Supporters of independence were aware of the momentousness of the occasion. As Washington’s commander of artillery, Henry Knox, wrote, “The eyes of all America are upon us. As we play our part posterity will bless or curse us.” Others were less impressed. The anti-independence leader in Congress, John Dickinson, dismissed it as a “skiff made of paper.”

The Declaration’s preamble embraced four themes fundamental to Western political philosophy in the 17th and 18th centuries: Natural law and rights, popular sovereignty exercised through the consent of the governed, the compact basis of the legitimate state, and the right of revolution.

The idea of a universal moral law, obligatory on earthly rulers and to which human law must conform, went back at least to the Stoics nearly two millennia prior, and indirectly even to Aristotle’s conception of natural justice. Cicero, among Roman writers, and the Christian Aristotelian Thomas Aquinas, among medieval Scholastics, postulated the existence of a natural order directed by universal laws. Humans were part of this order created by God and governed by physical laws. More important for these writers was the divinely-ordained universal moral law, in which humans participated through their reason and their ability to express complex abstract concepts. By virtue of its universality and its moral essence, this natural law imposed moral obligations on all, ruler and ruled alike. All were created equal, and all were equal before God and God’s law. Viewed from a metaphysical and practical perspective, these obligations provided the best path to individual flourishing within a harmonious social order in a manner that reflected both the inherent value of each person and man’s nature as a social creature. The need to meet these universal obligations of the natural moral law necessarily then gave rise to certain universal rights that all humans had by nature.

However, the shattering of universal Christendom in the West, with its concomitant shattering of the idea of a universal moral law and of a political order based thereon, changed the conception of natural law, natural rights and the ethical state. No longer was it man’s reason that must guide his actions and his institutions, including government and law, for the purpose of realizing the ends of this order. Rather, in the emerging modernity, there was a “turn to the subject” and, in the words of the ancient Greek pre-Socratic philosopher Protagoras, “man [became] the measure of all things.”

Political legitimacy and, thereby, the basis for political and legal obligation came to rest on individual acts of will. The most prominent foundation for this ethical structure was the construct of the “social contract” or “social compact.” “Natural law” became deracinated of its moral content and was reduced to describing the rules which applied in a fictional state of nature in which humans lived prior to the secular creation of a political commonwealth, in contrast to the civil law that arose after that creation. Natural rights were those that sovereign individuals enjoyed while in the state of nature, in contrast to civil rights, such as voting, which were created only within a political society.

Although expositors of the social contract theory appeared from the 16th to the 18th centuries, and came from several European cultures, the most influential for the American founding were various English and colonial philosophers and clergymen. Most prominent among them was John Locke.

Locke’s version of the state of nature is not as bleak and hostile as was that of his predecessor Thomas Hobbes. Nor, however, is it a romanticized secular Garden of Eden as posited by Jean-Jacques Rousseau, writing a century later. For Locke, existence in the state of nature allows for basic social arrangements to develop, such as the family, economic relationships, and religious congregations. However, despite Locke’s general skepticism about the Aristotelian epistemology then still dominant at the English universities, he agreed with the ancient sage that human flourishing best proceeds within a political commonwealth. Accordingly, sovereign individuals enter into a compact with each other to leave the state of nature and to surrender some of their natural rights in order to make themselves and their estates more secure. They agree to arbitrate their disputes by recourse to a judge, and to be governed by civil law made by a legislator and enforced by an executive. Under a second contract, those sovereign individuals collectively then convey those powers of government to specified others in trust to be exercised for the benefit of the people.

Thus, the political commonwealth is a human creation and derives its legitimacy through the consent of those it governs. This act of human free will is unmoored from some external order or the command of God. For Hobbes, the suspected atheist, human will was motivated to act out of fear.

Locke allows for much greater involvement by God, in that God gave man a nature that “put him under strong Obligations of Necessity, Convenience, and Inclination to drive him into Society, ….” Moreover, the natural rights of humans derive from the inherent dignity bestowed on humans as God’s creation. The human will still acts out of self-interest, but the contract is a much more deliberate and circumscribed bargain than Hobbes’s adhesion contract. For Locke, the government’s powers are limited to achieve the purposes for which it was established, and nothing more. With Hobbes, the individual only retained his inviolate natural right to life. With Locke, the individual retains his natural rights to liberty and property, as well as his right to life, all subject to only those limitations that make the possession of those same rights by all more secure. Any law that is inimical to those objectives and tramples on those retained rights is not true law.

There remained the delicate issue of what to do if the government breaches its trust by passing laws or otherwise acting in a manner that make people less secure in their persons or estates. Among private individuals, such a breach of fiduciary duty by a trustee would result in a court invalidating the breach, ordering fitting compensation, and, perhaps, removing the trustee. If the government breached such a duty, recourse to the English courts was unavailable, since, at least as to such constitutional matters, the courts had no remedial powers against the king or Parliament.

Petitions to redress grievances were tried-and-true tools in English constitutional theory and history. But what if those petitions repeatedly fell on deaf ears? One might elect other members of the government. But, what if one could not vote for such members and, consequently, was not represented therein? What if, further, the executive authority was not subject to election? A private party may repudiate a contract if the other side fails to perform the material part of the bargain. Is there a similar remedy to void the social contract with the government and place oneself again in a state of nature? More pointedly, do the people collectively retain a right of revolution to replace a usurping government?

This was the very situation in which many Americans and their leaders imagined themselves to be in 1776. Previous writers had been very circumscribed about recognizing a right of revolution. Various rationales were urged against such a right. Thomas Aquinas might cite religious reasons, but there was also the very practical medieval concern about stability in a rough political environment where societal security and survival were not to be assumed. Thomas Hobbes could not countenance such a right, as it would return all to the horrid state of nature, where life once again would be “solitary, poor, nasty, brutish, and short.” Moreover, as someone who had experienced the English Civil War and the regicide of Charles I, albeit from his sanctuary in France, and who was fully aware of the bloodletting during the contemporaneous Thirty Years’ War, revolution was to be avoided at all cost.

Locke was more receptive than Hobbes to some vague right of revolution, one not to be exercised in response to trivial or temporary infractions, however. Left unclear was exactly who were the people to exercise such a right, and how many of them were needed to legitimize the undertaking. Locke wrote at the time of the Glorious Revolution of 1688. His main relevant work, the Second Treatise on Civil Government, was published in 1689, though some scholars believe that it was written earlier. The Catholic king, James II, had been in a political and religious struggle with Parliament and the Church of England. When Parliament invited the stadholder (the chief executive) of the United Netherlands to bring an army to England to settle matters in favor of itself, James eventually fled to France.

Parliament declared the throne vacant, issued a Declaration of Rights and offered the throne to William and his wife, Mary. In essence, by James’s flight, the people of England had returned to an extra-political state of nature where they, through the Parliament, could form a new social contract.

The American Revolution and Jefferson’s writings in the Declaration of Independence follow a similar progression. When King George declared the colonies to be in rebellion on August 23, 1775, and Parliament passed the Prohibitory Act in December of that year, they had effectively placed the colonies outside the protection of the law and into a state of nature. At least that was the perception of the colonists. Whatever political bands once had existed were no more. In that state of nature, the Americans were free to reconstitute political societies on the basis of a social contract they chose.

That project occurred organically at the state level. Massachusetts had been operating as an independent entity since the royal governor, General Thomas Gage, had dissolved the General Court of the colony in June, 1774. That action led to the extra-constitutional election by the residents of a provincial congress in October. Thereafter, it was this assemblage that effectively governed the colony. The other colonies followed suit in short order.

In Virginia, a similar process occurred in the summer of 1774. It culminated two years later in the “Declaration of Rights and the Constitution or Form of Government,” begun by a convention of delegates on May 6, 1776, and formally approved in two stages the following month. The initial document was a motley combination of a plan of government, a declaration of independence, and a collection of enumerated rights and high-sounding political propositions. In the part regarding independence, the accusations against King George are remarkably similar, often verbatim, precursors to Jefferson’s language in the Declaration of Independence of the “united States” two months later. George Mason, whom Jefferson praised as the “wisest man of his generation,” was the principal author. Still, it may have been Jefferson himself who proposed this language through the drafts he submitted to the Virginia convention.

Both documents, the Virginia declaration and the Declaration of Independence, cite as a reason for “dissolv[ing] the Political Bands” that the king had abandoned the government by declaring the Americans out of his protection. George III, like James II a century before, had breached the social contract and forced a return to an extra-political state of nature. The Declaration of Independence merely formalized what had already occurred on the ground. With those bands broken, the next step, that of forming a new government, already taken by Virginia and other states, now lay before the “united States.”

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/

 

 

 

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Essay 4 - Guest Essayist: Joerg Knipprath

There are two recognized types of war, war between nations (“international war”) and war within a nation (“civil war”). In a civil war, some portion of the inhabitants forcibly seeks political change. The goal often is to replace the existing constitutional government with their own by taking over the entire structure or by separating themselves and seeking independence from their current compatriots.

A civil war may be an insurrection or a rebellion, the stages being distinguished by a rebellion’s higher degree of organization of military forces, creation of a formal political apparatus, greater popular participation, and more sophistication and openness of military operations. By those measures, the American effort began as an insurrection during the localized, brief, and poorly organized eruptions in the 1760s and early 1770s. Various petitions, speeches, and resolves opposing the Revenue Act, the Stamp Act, the Quartering Act, and others, were reactive, not strategic. Even circular letters among colonial governments for unified action, such as that by the Massachusetts assembly in February, 1768, against the Townshend Acts, or hesitant steps toward union, such as the Stamp Act Congress of 1765, were of that nature. Much rhetoric was consumed along with impressive quantities of Madeira wine, but tactical successes were soon superseded by the next controversy.

In similar vein, local bands of the Sons of Liberty, the middle-class groups of rabble-rousers that emerged in 1765, fortified in their numbers by wharf-rats and other layabouts, might destroy property, intimidate and assault royal officials, and harass locals seen as insufficiently committed to opposing an often-contrived outrage du jour. They might incite and participate in violent encounters with the British authorities. But, while they engaged in melodramatic and, to some Americans, satisfying political theater, they were no rebel force. Moreover, the political goals were limited, focused on repeal or, at least, non-enforceability of this or that act of Parliament.

Yet, those efforts, despite their limited immediate successes, triggered discussions of constitutional theory and provided organizational experience. In that manner, they laid the groundwork that, eventually, made independence possible, even if no one could know that and few desired it. Gradually, the vague line between insurrection and rebellion was crossed. The consequences of the skirmishes at Lexington and Concord have made it clear, in retrospect, that, by the spring of 1775, a rebellion was under way.

The Second Continental Congress met on May 10, 1775, and, in contrast to its predecessor, did not adjourn after concluding a limited agenda. Rather, it began to act as a government of a self-regarding political entity, including control over an organized armed force and a navy. Congress sent diplomatic agents abroad, took control over relations with the Indian tribes, and sent a military force under Benedict Arnold north against the British to “assist” Canada to join the American coalition. It appointed George Washington as commander-in-chief of the “Army of the United Colonies.” That army, and other forces, achieved several tactical military successes against the British during 1775 and early 1776, although the Canadian expedition narrowly failed.

Still, something was lacking. The scope of the effort was not matched by an equally ambitious goal. The end was not in focus. Certainly, repeal of the Coercive Acts, which had been enacted in the spring of 1774, urgently needed to be achieved. Those acts had closed the port of Boston, brought the government of Massachusetts under more direct royal control by eliminating elected legislative offices, and authorized the peacetime quartering of troops in private homes. These laws appeared reasonable from the British perspective. Thus, the Quartering Act intended to alleviate the dire conditions of British soldiers who were forced to sleep on Boston Common. The Government and Administration of Justice Act was to ensure, in part, fair trials for British officials and soldiers accused of murder as had happened in 1770 in the “Boston Massacre.” At the same time, though these acts were limited to Massachusetts, many colonists feared that a similar program awaited them. These laws were so despised that they were collectively known to Americans also as the “Intolerable Acts.”

Was there to be more? In unity lay strength, and the Second Continental Congress was tasked with working out an answer. But Congress was more follower than leader, as delegates had to wait for instructions from their colonial assemblies. That meant the process was driven by the sentiments of the people in the colonies, and the Tory residents of New York thought differently than the Whigs of beleaguered Massachusetts. Within each colony, sentiments, quite naturally, also varied. The more radical the potential end, the less likely people were to support it. Even as late as that spring of 1775, there existed no clear national identity as “American.” People still considered themselves part of the British Empire. The rights that they claimed were denied them by the government in London were the “ancient rights of Englishmen.” The official American flag, used by the armed forces until June, 1777, was composed of the familiar, to us, thirteen red and white stripes in its field, but its canton was the British Union Jack. Without irony, Congress’s military operations were made in the name of the king. General Washington was still toasting the king each night at the officer’s mess in Cambridge while besieging the British forces in Boston.

The gentlemen who met in Philadelphia came from the colonial elite, as would be expected. But they were also distinguished in sagacity and learning, more so than one has come to expect from today’s Congress drawn from a much larger population. Almost none favored independence. Those few that did, the Adams cousins from Massachusetts, Sam and John; the Lees of Virginia, Francis Lightfoot and Richard Henry; Benjamin Franklin of Pennsylvania; and Christopher Gadsden of South Carolina, the “Sam Adams of the South” as he came to be known, kept their views under wraps. Instead, the goal initially appeared to be some sort of conciliation within a new constitutional relationship of yet-to-be-determined form. Many delegates had also served in the First Continental Congress dedicated to sending remonstrances and petitions. On the other hand, Georgia had not sent delegates to the First, so its delegation consisted entirely of four novices. Peyton Randolph of Virginia was chosen president, as he had been of the First Continental Congress. He was soon replaced by John Hancock when Randolph had to return to Virginia because of his duties as Speaker of the House of Burgesses.

One person missing from the assemblage was Joseph Galloway of Pennsylvania. He had attended the First Continental Congress, where he had drafted a plan of union between the colonies and Britain. Parliament would control foreign affairs and external trade. As to internal colonial affairs, Parliament and a new American parliament would each effectively have veto power over the acts of the other. His plan would have recognized a degree of colonial sovereignty, but within the British system. It was rejected by one vote, six colonies to five, because a more confrontational proposal, the Suffolk Resolves, had recently been adopted by the towns around Boston which outflanked his proposal politically. Congress instead endorsed the Resolves, and voted to expunge Galloway’s plan from the record. Still, his proposal was a prototype for the future federal structure between the states and the general government under the Articles of Confederation. Repulsed by what he saw as the increasing radicalism of the various assemblies, he maintained his allegiance to the king. By 1778, he was living in London and advising the British government.

Congress sought to thread the needle between protecting the Americans from intrusive British laws and engaging in sedition and treason. In constitutional terms, it meant maintaining a balance between the current state of submission to a Parliament and a ministry in which they saw themselves as unrepresented, and the de facto revolution developing on the ground. The first effort, by John Dickinson of Pennsylvania and Thomas Jefferson of Virginia, was the “Declaration on the Causes of Taking Up Arms.” It declared, “We mean not to dissolve that union which has so long and so happily subsisted between us…. We have not raised armies with ambitious designs of separation from Great Britain, and establishing independent States.” Then why the effort? “[W]e are reduced to the alternative of choosing an unconditional submission to the tyranny of irritated ministers, or resistance by force. The latter is our choice.” Note the problem: not the king, not even Parliament, but “irritated ministers.” The path to resolution of the conflict, it seemed, was to appeal to the king himself, who, it was surmised, must have been kept in the dark about the dire state of affairs of his loyal colonial subjects by his ministers’ perfidy.

On July 8, 1775, Congress adopted the “Olive Branch Petition,” also drafted by John Dickinson. That gentleman, a well-respected constitutional lawyer, member of the First Continental Congress, and eventual principal drafter of the Articles of Confederation in 1777, wanted to leave no diplomatic stone unturned to avoid a breach with Great Britain. The historian Samuel Eliot Morison relates remarks attributed to John Adams about the supposed reasons for Dickinson’s caution. According to Adams, “His (Dickinson’s) mother said to him, ‘Johnny you will be hanged, your estate will be forfeited and confiscated, you will leave your excellent wife a widow, and your charming children orphans, beggars, and infamous.’ From my Soul, I pitied Mr. Dickinson…. I was very happy that my Mother and my Wife…and all her near relations, as well as mine, had been uniformly of my Mind, so that I always enjoyed perfect Peace at home.” A new topic of study thus presents itself to historians of the era: the effect of a statesman’s domestic affairs on his view of national affairs.

The Petition appealed to the king to help stop the war, repeal the Coercive Acts, restore the prior “harmony between [Great Britain] and these colonies,” and establish “a concord…between them upon so firm a basis as to perpetuate its blessing ….” Almost all who signed the later Declaration of Independence signed the Petition, largely to placate Dickinson and, for some, to justify more vigorous future measures. As feared by many, and hoped by some, on arrival in London, the American agents were told that the king would not receive a petition from rebels.

British politicians were as unsure and divided about moving forward as their American counterparts in Congress. But George III could rest assured of the support of his people, judging by the 60,000 that lined the route of his carriage from St. James Palace to the Palace of Westminster on the occasion of his speech to both houses for the opening of Parliament on October 26, 1775. The twenty-minute speech, delivered in a strong voice, provides a sharp counterpoint to the future American Declaration of Independence. Outraged by the attempted invasion of Canada, a peaceful and loyal colony, the king already on August 23 had declared that an open rebellion existed.

He now affirmed and elaborated on that proclamation. Leaders in America were traitors who in a “desperate conspiracy” had inflamed people through “gross misrepresentation.” They were feigning loyalty to the Crown while preparing for rebellion. Now came the bill of particulars against the Americans: “They have raised troops, and are collecting a naval force. They have seized the public revenue, and assumed to themselves legislative, executive, and judicial powers, which they already exercise in the most arbitrary manner…. And although many of these unhappy people may still retain their loyalty…the torrent of violence [by the Americans] has been strong enough to compel their acquiescence till a sufficient force shall appear to support them.”

Despite these provocations, he and the Parliament had acted with moderation, he assured his audience, and he was “anxious to prevent, if it had been possible, the effusion of the blood of my subjects, and the calamities which are inseparable from a state of war.” Nevertheless, he was determined to defend the colonies which the British nation had “encouraged with many commercial advantages, and protected and defended at much expense of blood and treasure.” He bemoaned in personal sorrow the baleful effects of the rebellion on his faithful subjects, but promised to “receive the misled with tenderness and mercy,” once they had come to their senses. Showing that his political sense was more acute than that of many Americans, as well as many members of Parliament, the king charged that the true intent of the rebels was to create an “independent empire.”

Two months later, Parliament followed the king’s declaration with an act to prohibit all commerce with the colonies and to make all colonial vessels subject to seizure as lawful prizes, with their crews subject to impressment into the Royal Navy.

The king’s speech was less well-received in the colonies, and it gave the radicals an opportunity to press their case that the king himself was at the center of the actions against the Americans. It was critical to the radicals’ efforts towards independence that the natural affinity for the king that almost all Americans shared with their countrymen in the motherland be sundered. Some snippets about the king’s character from the historian David McCullough illustrate why George III was popular. After ascending the throne in 1760 at age 22, “he remained a man of simple tastes and few pretensions. He liked plain food and drank but little, and wine only. Defying fashion, he refused to wear a wig…. And in notable contrast to much of fashionable society and the Court, … the king remained steadfastly faithful to his very plain Queen, with whom [he ultimately would produce fifteen children].”  Recent depictions of him as unattractive, dull, and insane, are far off the mark. He was tall, well above-average in looks at the time, and good-natured. By the 1770s, he was sufficiently skilled in the political arts to wield his patronage power to the advantage of himself and his political allies. One must not forget that, but a decade earlier, colonial governments had voted to erect statues in his honor. It was the very affability of George III and his appeal as a sort of “people’s king” that made it imperative for Jefferson to portray him in the Declaration of Independence as the ruthless and calculating tyrant he was not.

Between November, 1775, and January, 1776, New York, New Jersey, Pennsylvania, and Maryland still explicitly instructed their delegates to vote against independence. But events soon overtook the fitfulness of the state assemblies and Congress. Parliament’s actions, once they became known, left no room for conciliation. The colonies effectively had been declared into outlawry and, in Lockean terms, reverted to a “state of nature” in relation to the British government. The struggles in the colonial assemblies between moderates who had pressed for negotiation and radicals who pushed for independence now tilted clearly in favor of the latter.

Yet before news of Parliament’s actions reached the colonies, another event proved to be even more of a catalyst for the shift from conciliation to independence. In January, 1776, Thomas Paine, an English corset maker brought to Pennsylvania by Benjamin Franklin, published, anonymously, a pamphlet titled “Common Sense.” Paine ridiculed monarchy and denounced George III as a particularly despicable example. The work’s unadorned but stirring prose, short length, and simplistically propagandistic approach to political systems made it a best seller that delivered an electric jolt to the public debate. The extent to which it influenced the deliberations of Congress is unclear, however.

The irresolution of the Congress, it must be noted, was mirrored by the fumblings of Parliament. The Americans had many friends for their cause in London, even including various ministries, some of which nevertheless were reviled in the colonies. This had been the case beginning the prior decade, when American objections to a particular act of Parliament resulted in repeal of the act, only to be followed by another that the Americans found unacceptable, whereupon the dance continued. Still, the overall trend had been to tighten the reins on the colonies. But that did not deter Edmund Burke, a solid—but at times exasperated—supporter of the Americans, to introduce a proposal for reconciliation in Parliament in November, 1775. Unfortunately, it was voted down. Others, including Adam Smith and Lord Barrington, the secretary at war, urged all British troops to be removed and the Americans to be allowed to determine whether, and under what terms, they wished to remain in union with Britain.

Other proposals for a revised union were debated in Parliament even after the Americans declared independence. These proposals resembled the dominion structure that the British, having learned their lesson too late, provided for many of their colonies and dependencies in subsequent generations. The last of these, the Conciliatory Bill, which actually was passed on February 17, 1778, gave the Americans more than they had demanded in 1775. Too late. The American alliance with France made peace impossible. Had those proposals, allowing significant control by the colonists over local affairs, been adopted in a timely manner, the independence drive well may have stalled even in 1776. Even Adams, Jefferson, and other radicals of those earlier years had urged a dominion structure, whereby the Americans would have controlled their own affairs but would have remained connected to Britain through the person of the king. The quote attributed to the former Israeli Foreign Minister Abba Eban about the Arabs of our time might as well have applied to the British of the 1770s, “[They] never miss[ed] an opportunity to miss an opportunity.”

Reflecting the shifting attitudes in the assemblies, and responding to the seemingly inexorable move to independence by the states, the Second Continental Congress also bent to the inevitable. The Virginia House of Burgesses on May, 15, 1776, appointed a committee to draft a constitution for an independent Commonwealth, and directed its delegates in Congress to vote for independence. Other states followed suit. Finally, Richard Henry Lee moved in Congress, “That these United Colonies are, and of right ought to be, Independent States, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved.” The die was cast.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/

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On March 23, 2010, President Barack Obama signed into law the Patient Protection and Affordable Care Act (“ACA”), sometimes casually referred to as “Obamacare,” a sobriquet that Obama himself embraced in 2013. The ACA covered 900 pages and hundreds of provisions. The law was so opaque and convoluted that legislators, bureaucrats, and Obama himself at times were unclear about its scope. For example, the main goal of the law was presented as providing health insurance to all Americans who previously were unable to obtain it due to, among other factors, lack of money or pre-existing health conditions. The law did increase the number of individuals covered by insurance, but stopped well short of universal coverage. Several of its unworkable or unpopular provisions were delayed by executive order. Others were subject to litigation to straighten out conflicting requirements. The ACA represented a probably not-yet-final step in the massive bureaucratization of health insurance and care over the past several decades, as health care moved from a private arrangement to a government-subsidized “right.”

The law achieved its objectives to the extent it did by expanding Medicaid eligibility to higher income levels and by significantly restructuring the “individual” policy market. In other matters, the ACA sought to control costs by further reducing Medicare reimbursements to doctors, which had the unsurprising consequence that Medicare patients found it still more difficult to get medical care, and by levying excise taxes on medical devices, drug manufacturers, health insurance providers, and high-benefit “Cadillac plans” set-up by employers. The last of these was postponed and, along with most of the other taxes, repealed in December, 2019. On the whole, existing employer plans and plans under collective-bargaining agreements were only minimally affected. Insurers had to cover defined “essential health services,” whether or not the purchaser wanted or needed those services. As a result, certain basic health plans that focused on “catastrophic events” coverage were substandard and could no longer be offered. Hence, while coverage expanded, many people also found that the new, permitted plans cost them more than their prior coverage. They also found that the reality did not match Obama’s promise, “if you like your health care plan, you can keep your health care plan.”

The ACA required insurance companies to “accept all comers.” This policy would have the predictable effect that healthy (mostly young) people would forego purchasing insurance until a condition arose that required expensive treatment. That, in turn, would devastate the insurance market. Imagine being able to buy a fire policy to cover damage that had already arisen from a fire. Such policies would not be issued. Private, non-employer, health insurance plans potentially would disappear. Some commentators opined that this was exactly the end the reformers sought, at least secretly, so as to shift to a single-payer system, in other words, to “Medicare for all.” The ACA sought to address that problem by imposing an “individual mandate.” Unless exempt from the mandate, such as illegal immigrants or 25-year-olds covered under their parents’ policy, every person must purchase insurance through their employer or individually from an insurer through one of the “exchanges.” Barring that, the person had to pay a penalty, to be collected by the IRS.

There have been numerous legal challenges to the ACA. Perhaps the most significant constitutional challenge was decided by the Supreme Court in 2012 in National Federation of Independent Business v. Sebelius (NFIB). There, the Court addressed the constitutionality of the individual mandate under Congress’s commerce and taxing powers, and of the Medicaid expansion under Congress’s spending power. These two provisions were deemed the keys to the success of the entire project.

Before the Court could address the case’s merits, it had to rule that the petitioners had standing to bring their constitutional claim. The hurdle was the Anti-Injunction Act. That law prohibited courts from issuing an injunction against the collection of any tax, in order to prevent litigation from obstructing tax collection. Instead, a party must pay the tax and sue for a refund to test the tax’s constitutionality. The issue turned on whether the individual mandate was a tax or a penalty. Chief Justice John Roberts concluded that Congress had described this “shared responsibility payment” if one did not purchase qualified health insurance as a “penalty,” not a “tax.” Roberts noted that other parts of the ACA imposed taxes, so that Congress’s decision to apply a different label was significant. Left out of the opinion was the reason that Congress made what was initially labeled a “tax” into a “penalty” in the ACA’s final version, namely, Democrats’ sensitivity about Republican allegations that the proposed bill raised taxes on Americans.

Having confirmed the petitioners’ standing, Roberts proceeded to the substantive merits of the challenge to the ACA. The government argued that the health insurance market (and health care, more generally) was a national market in which everyone would participate, sooner or later. While this is a likely event, it is by no means a necessary one, as a person might never seek medical services. If, for whatever reason, people did not have suitable insurance, the government claimed, they might not be able to pay for those services. Because hospitals are legally obligated to provide some services regardless of the patient’s ability to pay, hospitals would pass along their uncompensated costs to insured patients, whose insurance companies in turn would charge those patients higher premiums. The ACA’s broadened insurance coverage and “guaranteed-issue” requirements, subsidized by the minimum insurance coverage requirement, would ameliorate this cost-shifting. Moreover, the related individual mandate was “necessary and proper” to deal with the potential distortion of the market that would come from younger, healthier people opting not to purchase insurance as sought by the ACA.

Of course, Congress could pass laws under the Necessary and Proper Clause only to further its other enumerated powers, hence, the need to invoke the Commerce Clause. The government relied on the long-established, but still controversial, precedent of Wickard v. Filburn. In that 1942 case, the Court upheld a federal penalty imposed on farmer Filburn for growing wheat for home consumption in excess of his allotment under the Second Agricultural Adjustment Act. Even though Filburn’s total production was an infinitesimally small portion of the nearly one billion bushels grown in the U.S. at that time, the Court concluded, tautologically,  that the aggregate of production by all farmers had a substantial effect on the wheat market. Thus, since Congress could act on overall production, it could reach all aspects of it, even marginal producers such as Filburn. The government claimed that the ACA’s individual mandate was analogous. Even if one healthy individual’s failure to buy insurance would scarcely affect the health insurance market, a large number of such individuals and of “free riders” failing to get insurance until after a medical need arose would, in the aggregate, have such a substantial effect.

Roberts, in effect writing for himself and the formally dissenting justices on that issue, disagreed. He emphasized that Congress has only limited, enumerated powers, at least in theory. Further, Congress might enact laws needed to exercise those powers. However, such laws must not only be necessary, but also proper. In other words, they must not themselves seek to achieve objectives not permitted under the enumerated powers. As opinions in earlier cases, going back to Chief Justice John Marshall in Gibbons v. Ogden had done, Roberts emphasized that the enumeration of congressional powers in the Constitution meant that there were some things Congress could not reach.

As to the Commerce Clause itself, the Chief Justice noted that Congress previously had only used that power to control activities in which parties first had chosen to engage. Here, however, Congress sought to compel people to act who were not then engaged in commercial activity. However broad Congress’s power to regulate interstate commerce had become over the years with the Court’s acquiescence, this was a step too far. If Congress could use the Commerce Clause to compel people to enter the market of health insurance, there was no other product or service Congress could not force on the American people.

This obstacle had caused the humorous episode at oral argument where the Chief Justice inquired whether the government could require people to buy broccoli. The government urged, to no avail, that health insurance was unique, in that people buying broccoli would have to pay the grocer before they received their ware, whereas hospitals might have to provide services and never get paid. Of course, the only reason hospitals might not get paid is because state and federal laws require them to provide certain services up front, and there is no reason why laws might not be adopted in the future that require grocers to supply people with basic “healthy” foods, regardless of ability to pay. Roberts also acknowledged that, from an economist’s perspective, choosing not to participate in a market may affect that market as much as choosing to participate. After all, both reflect demand, and a boycott has economic effects just as a purchasing fad does. However, to preserve essential constitutional structures, sometimes lines must be drawn that reflect considerations other than pure economic policy.

The Chief Justice was not done, however. Having rejected the Commerce Clause as support for the ACA, he embraced Congress’s taxing power, instead. If the individual mandate was a tax, it would be upheld because Congress’s power to tax was broad and applied to individuals, assets, and income of any sort, not just to activities, as long as its purpose or effect was to raise revenue. On the other hand, if the individual mandate was a “penalty,” it could not be upheld under the taxing power, but had to be justified as a necessary and proper means to accomplish another enumerated power, such as the commerce clause. Of course, that path had been blocked in the preceding part of the opinion. Hence, everything rested on the individual mandate being a “tax.”

At first glance it appeared that this avenue also was a dead end, due to Roberts’s decision that the individual mandate was not a tax for the purpose of the Anti-Injunction Act. On closer analysis, however, the Chief Justice concluded that something can be both a tax and not be a tax, seemingly violating the non-contradiction principle. Roberts sought to escape this logical trap by distinguishing what Congress can declare as a matter of statutory interpretation and meaning from what exists in constitutional reality. Presumably, Congress can define that, for the purpose of a particular federal law, 2+2=5 and the Moon is made of green cheese. In applying a statute’s terms, the courts are bound by Congress’s will, however contrary that may be to reason and ordinary reality.

However, when the question before a court is the meaning of an undefined term in the Constitution, an “originalist” judge will attempt to discern the commonly-understood meaning of that term when the Constitution was adopted, subject possibly to evolution of that understanding through long-adhered-to judicial, legislative, and executive usage. Here, Roberts applied factors the Court had developed beginning in Bailey v. Drexel Furniture Co. in 1922. Those factors compelled the conclusion that the individual mandate was, functionally, a tax. Particularly significant for Roberts was that the ACA limited the payment to less than the price for insurance, and that it was administered by the IRS through the normal channels of tax collection. Further, because the tax would raise substantial revenue, its ancillary purpose of expanding insurance coverage was of no constitutional consequence. Taxes often affect behavior, understood in the old adage that, if the government taxes something, it gets less of it.

Roberts’s analysis reads as the constitutional law analogue to quantum mechanics and the paradox of Schroedinger’s Cat, in that the individual mandate is both a tax and a penalty until it is observed by the Chief Justice. His opinion has produced much mirth—and frustration—among commentators, and there were inconvenient facts in the ACA itself. The mandate was in the ACA’s operative provisions, not its revenue provisions, and Congress referred to the mandate as a “penalty” eighteen times in the ACA. Still, he has a valid, if not unassailable, point. A policy that has the characteristics associated with a tax ordinarily is a tax. If Congress nevertheless consciously chooses to designate it as a penalty, then for the limited purpose of assessing the policy’s connection to another statute which carefully uses a different term, here the Anti-Injunction Act, the blame for any absurdity lies with Congress.

The Medicaid expansion under the ACA was struck down. Under the Constitution, Congress may spend funds, subject to certain ill-defined limits. One of those is that the expenditure must be for the “general welfare.” Under classic republican theory, this meant that Congress could spend the revenue collected from the people of the several states on projects that would benefit the United States as a whole, not some constituent part, or an individual or private entity. It was under that conception of “general welfare” that President Grover Cleveland in 1887 vetoed a bill that appropriated $10,000 to purchase seeds to be distributed to Texas farmers hurt by a devastating drought. Since then, the phrase has been diluted to mean anything that Congress deems beneficial to the country, however remotely.

Moreover, while principles of federalism prohibit Congress from compelling states to enact federal policy—known as the “anti-commandeering” doctrine—Congress can provide incentives to states through conditional grants of federal funds. As long as the conditions are clear, relevant to the purpose of the grant, and not “coercive,” states are free to accept the funds with the conditions or to reject them. Thus, Congress can try to achieve indirectly through the spending power what it could not require directly. For example, Congress cannot, as of now, direct states to teach a certain curriculum in their schools. However, Congress can provide funds to states that teach certain subjects, defined in those grants, in their schools. The key issue usually is whether the condition effectively coerces the states to submit to the federal financial blandishment. If so, the conditional grant is unconstitutional because it reduces the states to mere satrapies of the federal government rather than quasi-sovereigns in our federal system.

In what was a judicial first, Roberts found that the ACA unconstitutionally coerced the states into accepting the federal grants. Critical to that conclusion was that a state’s failure to accept the ACA’s expansion of Medicaid would result not just in the state being ineligible to receive federal funds for the new coverage. Rather, the state would lose all of its existing Medicaid funding. As well, here the program affected—Medicaid—accounted for over 20% of the typical state’s budget. Roberts described this as “economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion.” Roberts noted that the budgetary impact on a state from rejecting the expansion dwarfed anything triggered by a refusal to accept federal funds under previous conditional grants.

One peculiarity of the opinions in NFIB was the stylistic juxtaposition of Roberts’s opinion for the Court and the principal dissent, penned by Justice Antonin Scalia. Roberts at one point uses “I” to defend a point of law he makes, which is common in dissents or concurrences, instead of the typical “we” or “the Court” used by a majority. By contrast, Scalia consistently uses “we” (such as “We conclude that [the ACA is unconstitutional.” and “We now consider respondent’s second challenge….”), although that might be explained because he wrote for four justices, Anthony Kennedy, Clarence Thomas, Samuel Alito, and himself. He also refers to Justice Ruth Bader Ginsburg’s broadly as “the dissent.” Most significant, Scalia’s entire opinion reads like that of a majority. He surveys the relevant constitutional doctrines more magisterially than does the Chief Justice, even where he and Roberts agree, something that dissents do not ordinarily do. He repeatedly and in detail criticizes the government’s arguments and the “friend-of the-court” briefs that support the government, tactics commonly used by the majority opinion writer.

These oddities have provoked much speculation, chiefly that Roberts initially joined Scalia’s opinion, which would have made it the majority opinion, but got cold feet. Rumor spread that Justice Anthony Kennedy had attempted until shortly before the decision was announced to persuade Roberts to rejoin the Scalia group. Once that proved fruitless, it was too late to make anything but cosmetic changes to Scalia’s opinion for the four now-dissenters. Only the justices know what actually happened, but the scenario seems plausible.

Why would Roberts do this? Had Scalia’s opinion prevailed, the ACA would have been struck down in its entirety. That would have placed the Court in a difficult position, especially during an election year, having exploded what President Obama considered his signature achievement. The President already had a fractious relationship with the Supreme Court and earlier had made what some interpreted as veiled political threats against the Court over the case. Roberts’s “switch in time” blunted that. The chief justice is at most primus inter pares, having no greater formal powers than his associates. But he is often the public and political figurehead of the Court. Historically, chief justices have been more “political” in the sense of being finely attuned to maintaining the institutional vitality of the Court. John Marshall, William Howard Taft, and Charles Evans Hughes especially come to mind. Associate justices can be jurisprudential purists, often through dissents, to a degree a chief justice cannot.

Choosing his path allowed Roberts to uphold the ACA in part, while striking jurisprudential blows against the previously constant expansion of the federal commerce and spending powers. Even as to the taxing power, which he used to uphold that part of the ACA, Roberts planted a constitutional land mine. Should the mandate ever be made really effective, if Congress raised it above the price of insurance, the “tax” argument would fail and a future court could strike it down as an unconstitutional penalty. Similarly, if the tax were repealed, as eventually happened, and the mandate were no longer supported under the taxing power, it could threaten the entire ACA.

After NFIB, attempts to modify or eliminate the ACA through legislation or litigation continued, with mixed success. Noteworthy is that the tax payment for the individual mandate was repealed in 2017. This has produced a new challenge to the ACA as a whole, because the mandate is, as the government conceded in earlier arguments, a crucial element of the whole health insurance structure. The constitutional question is whether the mandate is severable from the rest of the ACA. The district court held that the mandate was no longer a tax and, thus, under NFIB, is unconstitutional. Further, because of the significance that Congress attached to the mandate for the vitality of the ACA, the mandate could not be severed from the ACA, and the entire law is unconstitutional. The Fifth Circuit agreed that the mandate is unconstitutional, but disagreed about the extent that affects the rest of the ACA. The Supreme Court will hear the issue in its 2020-2021 term in California v.. Texas.

On the political side, the American public seems to support the ACA overall, although, or perhaps because, it has been made much more modest than its proponents had planned. So, the law, somewhat belatedly and less boldly, achieved a key goal of President Obama’s agenda. That success came at a stunning political cost to the President’s party, however. The Democrats hemorrhaged over 1,000 federal and state legislative seats during Obama’s tenure. In 2010 alone, they lost a historic 63 House seats, the biggest mid-term election rout since 1938, plus 6 Senate seats. The moderate “blue-dog” Democrats who had been crucial to the passage of the ACA were particularly hard hit. Whatever the ACA’s fate turns out to be in the courts, the ultimate resolution of controversial social issues remains with the people, not lawyers and judges.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/

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Guest Essayist: Joerg Knipprath
President Nixon Farewell Speech to White House Staff, August 9, 1974

On Thursday, August 8, 1974, a somber Richard Nixon addressed the American people in a 16-minute speech via television to announce that he was planning to resign from the Presidency of the United States. He expressed regret over mistakes he made about the break-in at the Democratic Party offices at the Watergate Hotel and the aftermath of that event. He further expressed the hope that his resignation would begin to heal the political divisions the matter had exacerbated. The next day, having resigned, he boarded a helicopter and, with his family, left Washington, D.C.

Nixon had won the 1972 election against Senator George McGovern of South Dakota with over 60% of the popular vote and an electoral vote of 520-17 (one vote having gone to a third candidate). Yet less than two years after what is one of the most overwhelming victories in American elections, Nixon was politically dead. Nixon has been described as a tragic figure, in a literary sense, due to his struggle to rise to the height of political power, only to be undone when he had achieved the pinnacle of success. The cause of this astounding change of fortune has been much debated. It resulted from a confluence of factors, political, historical, and personal.

Nixon was an extraordinarily complex man. He was highly intelligent, even brilliant, yet was the perennial striver seeking to overcome, by unrelenting work, his perceived limitations. He was an accomplished politician with a keen understanding of political issues, yet socially awkward and personally insecure. He was perceived as the ultimate insider, yet, despite his efforts, was always somehow outside the “establishment,” from his school days to his years in the White House. Alienated from the social and political elites, who saw him as an arriviste, he emphasized his marginally middle-class roots and tied his political career to that “silent majority.” He could arouse intense loyalty among his supporters, yet equally intense fury among his opponents. Nixon infamously kept an “enemies list,” the only surprise of which is that it was so incomplete. Seen by the Left as an operative of what is today colloquialized as the “Deep State,” yet he rightly mistrusted the bureaucracy and its departments and agencies, and preferred to rely on White House staff and hand-picked loyal individuals. Caricatured as an anti-Communist ideologue and would-be right-wing dictator, Nixon was a consummately pragmatic politician who was seen by many supporters of Senator Barry Goldwater and Governor Ronald Reagan as insufficiently in line with their world view.

The Watergate burglary and attempted bugging of the Democratic Party offices in June, 1972, and investigations by the FBI and the Government Accountability Office that autumn into campaign finance irregularities by the Committee to Re-Elect the President (given the unfortunate acronym CREEP by Nixon’s opponents) initially had no impact on Nixon and his comprehensive political victory. In January, 1973, the trial of the operatives before federal judge John Sirica in Washington, D.C., revealed possible White House involvement. This perked the interest of the press, never Nixon’s friends. These revelations, now spread before the public, caused the Democratic Senate majority to appoint a select committee under Senator Sam Ervin of North Carolina for further investigation. Pursuant to an arrangement with Senate Democrats, Attorney General Elliot Richardson named Democrat Archibald Cox, a Harvard law professor and former Kennedy administration solicitor general, as special prosecutor.

Cox’s efforts uncovered a series of missteps by Nixon, as well as actions that were viewed as more seriously corrupt and potentially criminal. Some of these sound rather tame by today’s standards. Others are more problematic. Among the former were allegations that Nixon had falsely backdated a gift of presidential papers to the National Archives to get a tax credit, not unlike Bill Clinton’s generously-overestimated gift of three pairs of his underwear in 1986 for an itemized charitable tax deduction. Another was that he was inexplicably careless in preparing his tax return. Given the many retroactively amended tax returns and campaign finance forms filed by politicians, such as the Clintons and their eponymous foundations, this, too, seems of slight import. More significant was the allegation that he had used the Internal Revenue Service to attack political enemies. Nixon certainly considered that, although it is not shown that any such actions were undertaken. Another serious charge was that Nixon had set up a secret structure to engage in political intelligence and espionage.

The keystone to the impeachment was the discovery of a secret taping system in the Oval Office that showed that Nixon had participated in a cover-up of the burglary and obstructed the investigation. Nixon, always self-reflective and sensitive to his position in history, had set up the system to provide a clear record of conversations within the Oval Office for his anticipated post-Presidency memoirs. It proved to be his downfall. When Cox became aware of the system, he sought a subpoena to obtain nine of the tapes in July, 1973. Nixon refused, citing executive privilege relating to confidential communications. That strategy had worked when the Senate had demanded the tapes; Judge Sirica had agreed with Nixon. But Judge Sirica rejected that argument when Cox sought the information, a decision upheld 5-2 by the federal Circuit Court for the District of Columbia.

Nixon then offered to give Cox authenticated summaries of the nine tapes. Cox refused. After a further clash between the President and the special prosecutor, Nixon ordered Attorney General Richardson to remove Cox. Both Richardson and Assistant Attorney General William Ruckelshaus refused and resigned. However, by agreement between these two and Solicitor General Robert Bork, Cox was removed by Bork in his new capacity as Acting Attorney General. It was well within Nixon’s constitutional powers as head of the unitary executive to fire his subordinates. But what the President is constitutionally authorized to do is not the same as what the President politically should do. The reaction of the political, academic, and media elites to the “Saturday Night Massacre” was overwhelmingly negative, and precipitated the first serious effort at impeaching Nixon.

A new special prosecutor, Democrat Leon Jaworski, was appointed by Bork in consultation with Congress. The agreement among the three parties was that, though Jaworski would operate within the Justice Department, he could not be removed except for specified causes and with notification to Congress. Jaworski also was specifically authorized to contest in court any claim of executive privilege. When Jaworski again sought various specific tapes, and Nixon again claimed executive privilege, Jaworski eventually took the case to the Supreme Court. On July 24, 1974, Chief Justice Warren Burger’s opinion in the 8-0 decision in United States v. Nixon (William Rehnquist, a Nixon appointee who had worked in the White House, had recused himself) overrode the executive privilege claim. The justices also rejected the argument that this was a political intra-branch dispute between the President and a subordinate that rendered the matter non-justiciable, that is, beyond the competence of the federal courts.

At the same time, in July, 1974, with bipartisan support, the House Judiciary Committee voted out three articles of impeachment. Article I charged obstruction of justice regarding the Watergate burglary. Article II charged him with violating the Constitutional rights of citizens and “contravening the laws governing agencies of the executive branch,” which dealt with Nixon’s alleged attempted misuse of the IRS, and with his misuse of the FBI and CIA. Article III charged Nixon with ignoring congressional subpoenas, which sounds remarkably like an attempt to obstruct Congress, a dubious ground for impeachment. Two other proposed articles were rejected. When the Supreme Court ordered Nixon to release the tapes, that of June 23, 1972, showed obstruction of justice by the President instructing his staff to use the CIA to end the Watergate investigation. The tape was released on August 5. Nixon was then visited by a delegation of Republican Representatives and Senators who informed him of the near-certainty of impeachment by the House and of his extremely tenuous position to avoid conviction by the Senate. The situation having become politically hopeless, Nixon resigned, making his resignation formal on Friday, August 9, 1974.

The Watergate affair produced several constitutional controversies. First, the Supreme Court addressed executive privilege to withhold confidential information. Nixon’s opponents had claimed that the executive lacked such a privilege because the Constitution did not address it, unlike the privilege against self-incrimination. Relying on consistent historical practice going back to the Washington administration, the Court found instead that such a privilege is inherent in the separation of powers and necessary to protect the President in exercising the executive power and others granted under Article II of the Constitution. However, unless the matter involves state secrets, that privilege could be overridden by a court, if warranted in a criminal case, and the “presumptively privileged” information ordered released. While the Court did not directly consider the matter, other courts have agreed with Judge Sirica that, based on long practice, the privilege will be upheld if Congress seeks such confidential information. The matter then is a political question, not one for courts to address at all.

Another controversy arose over the President’s long-recognized power to fire executive branch subordinates without restriction by Congress. This is essential to the President’s position as head of the executive branch. For example, the President has inherent constitutional authority to fire ambassadors as Barack Obama and Donald Trump did, or to remove U.S. Attorneys, as Bill Clinton and George W. Bush did. Jaworski’s appointment under the agreement not to remove him except for specified cause interfered with that power, yet the Court upheld that limitation in the Nixon case.

After Watergate, in 1978, Congress passed the Ethics in Government Act that provided a broad statutory basis for the appointment of special prosecutors outside the normal structure of the Justice Department. Such prosecutors, too, could not be removed except for specified causes. In Morrison v. Olson, in 1988, the Supreme Court, by 7-1, upheld this incursion on executive independence over the lone dissent of Justice Antonin Scalia. At least as to inferior executive officers, which the Court found special prosecutors to be, Congress could limit the President’s power to remove, as long as the limitation did not interfere unduly with the President’s control over the executive branch. The opinion, by Chief Justice Rehnquist, was in many ways risible from a constitutional perspective, but it upheld a law that became the starting point for a number of highly-partisan and politically-motivated investigations into actions taken by Presidents Ronald Reagan, George H.W. Bush, and Bill Clinton, and by their subordinates. Only once the last of these Presidents was being subjected to such oversight did opposition to the law become sufficiently bipartisan to prevent its reenactment.

The impeachment proceeding itself rekindled the debate over the meaning of the substantive grounds for such an extraordinary interference with the democratic process. While treason is defined in the Constitution and bribery is an old and well-litigated criminal law concept, the third basis, of “high crimes and misdemeanors,” is open to considerable latitude of meaning. One view, taken by defenders of the official under investigation, is that this phrase requires conduct amounting to a crime, an “indictable offense.” The position of the party pursuing impeachment, Republican or Democrat, has been that this phrase more broadly includes unfitness for office and reaches conduct which is not formally criminal but which shows gross corruption or a threat to the constitutional order. The Framers’ understanding appears to have been closer to the latter, although the much greater number and scope of criminal laws today may have narrowed the difference. However, what the Framers considered sufficiently serious impeachable corruption likely was more substantial than what has been proffered recently. They were acutely aware of the potential for merely political retaliation and similar partisan mischief that a low standard for impeachment would produce. These and other questions surrounding the rather sparse impeachment provisions in the Constitution have not been resolved. They continue to be, foremost, political matters addressed on a case-by-case basis, as demonstrated the past twelve months.

As has been often observed, Nixon’s predicament was not entirely of his own making. In one sense, he was the victim of political trends that signified a reaction against what had come to be termed the “Imperial Presidency.” It had long been part of the progressive political faith that there was “nothing to fear but fear itself” as far as broadly exercised executive power, as long as the presidential tribune using “a pen and a phone” was subject to free elections. Actions routinely done by Presidents such as Franklin Roosevelt, Harry Truman, and Nixon’s predecessor, Lyndon Johnson, now became evidence of executive overreach. For example, those presidents, as well as others going back to at least Thomas Jefferson had impounded appropriated funds, often to maintain fiscal discipline over profligate Congresses. Nixon claimed that his constitutional duty “to take care that the laws be faithfully executed” was also a power that allowed him to exercise discretion as to which laws to enforce, not just how to enforce them. In response, the Democratic Congress in 1974 passed the Budget and Impoundment Control Act of 1974. The Supreme Court in Train v. City of New York declared presidential impoundment unconstitutional and limited the President’s authority to impound funds to whatever extent was permitted by Congress in statutory language.

In military matters, the elites’ reaction against the Vietnam War, shaped by negative press coverage and antiwar demonstrations on elite college campuses, gradually eroded popular support. The brunt of the responsibility for the vast expansion of the war lay with Lyndon Johnson and the manipulative use of a supposed North Vietnamese naval attack on an American destroyer, which resulted in the Gulf of Tonkin Resolution. At a time when Nixon had ended the military draft, drastically reduced American troop numbers in Vietnam, and agreed to the Paris Peace Accords signed at the end of January, 1973, Congress enacted the War Powers Resolution of 1973 over Nixon’s veto. The law limited the President’s power to engage in military hostilities to specified situations, in the absence of a formal declaration of war. It also basically required pre-action consultation with Congress for any use of American troops and a withdrawal of such troops unless Congress approved within sixty days. It also, somewhat mystifyingly, purported to disclaim any attempt to limit the President’s war powers. The Resolution has been less than successful in curbing presidential discretion in using the military and remains largely symbolic.

Another restriction on presidential authority occurred through the Supreme Court. In United States v. United States District Court in 1972, the Supreme Court rejected the administration’s program of warrantless electronic surveillance for domestic security. This was connected to the Huston Plan of warrantless searches of mail and other communications of Americans. Warrantless wiretaps were connected on some members of the National Security Council and several journalists. Not touched by the Court was the President’s authority to conduct warrantless electronic surveillance of foreigners or their agents for national security-related information gathering. On the latter, Congress nevertheless in 1978 passed the Foreign Intelligence Surveillance Act, which, ironically, has expanded the President’s power in that area. Because it can be applied to communications of Americans deemed agents of a foreign government, FISA, along with the President’s inherent constitutional powers regarding foreign intelligence-gathering, can be used to circumvent the Supreme Court’s decision. It has even been used in the last several years to target the campaign of then-candidate Donald Trump.

Nixon’s use of the “pocket veto” and his imposition of price controls also triggered resentment and reaction in Congress, although once again his actions were hardly novel. None of these various executive policies, by themselves, were politically fatal. Rather, they demonstrate the political climate in which what otherwise was just another election-year dirty trick, the Watergate Hotel burglary, could result in the historically extraordinary resignation from office of a President who had not long before received the approval of a large majority of American voters. Nixon’s contemplated use of the IRS to audit “enemies” was no worse than the Obama Administration’s actual use of the IRS to throttle conservative groups’ tax exemption. His support of warrantless wiretaps under his claimed constitutional authority to target suspected domestic troublemakers, while unconstitutional, hardly is more troubling than Obama’s use of the FBI and CIA to manipulate the FISA system into spying on a presidential candidate to assist his opponent. Nixon’s wiretapping of NSC officials and several journalists is not dissimilar to Obama’s search of phone records of various Associated Press reporters and of spying on Fox News’s James Rosen. Obama’s FBI also accused Rosen of having violated the Espionage Act. The Obama administration brought more than twice as many prosecutions—including under the Espionage Act—against leakers than all prior Presidents combined. That was in his first term.

There was another, shadowy factor at work. Nixon, the outsider, offended the political and media elites. Nixon himself disliked the bureaucracy, which had increased significantly over the previous generation through the New Deal’s “alphabet agencies” and the demands of World War II and the Cold War. The Johnson Administration’s Great Society programs sped up this growth. The agencies were staffed at the upper levels with left-leaning members of the bureaucratic elite. Nixon’s relationship with the press was poisoned not only by their class-based disdain for him, but by the constant flow of leaks from government insiders who opposed him. Nixon tried to counteract that by greatly expanding the White House offices and staffing them with members who he believed were personally loyal to him. His reliance on those advisers rather than on the advice of entrenched establishment policy-makers threatened the political clout and personal self-esteem of the latter. What has been called Nixon’s plebiscitary style of executive government, relying on the approval of the voters rather than on that of the elite administrative cadre, also was a threat to the existing order. As Senator Charles Schumer warned President Trump in early January, 2017, about the intelligence “community,” “Let me tell you: You take on the intelligence community — they have six ways from Sunday at getting back at you.” Nixon, too, lived that reality.

Once out of office, Nixon generally stayed out of the limelight. The strategy worked well. As seems to be the custom for Republican presidents, once they are “former,” many in the press and among other “right-thinking people” came to see him as the wise elder statesman, much to be preferred to the ignorant cowboy (and dictator) Ronald Reagan. Who, of course, then came to be preferred to the ignorant cowboy (and dictator) George W. Bush. Who, of course, then came to be preferred to the ignorant reality television personality (and dictator) Donald Trump. Thus, the circle of political life continues. It ended for Nixon on April 22, 1994. His funeral five days later was attended by all living Presidents. Tens of thousands of mourners paid their respects.

The parallel to recent events should be obvious. That said, a comparison between seriousness of the Watergate Affair that resulted in President Nixon’s resignation and the Speaker Nancy Pelosi/Congressman Adam Schiff/Congressman Jerry Nadler impeachment of President Trump brings to mind what may be Karl Marx’s only valuable observation, that historic facts appear twice, “the first time as tragedy, the second time as farce.”

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/

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Guest Essayist: Joerg Knipprath

On February 15, 1898, an American warship, U.S.S. Maine, blew up in the harbor of Havana, Cuba. A naval board of inquiry reported the following month that the explosion had been caused by a submerged mine. That conclusion was confirmed in 1911, after a more exhaustive investigation and careful examination of the wreck. What was unclear, and remains so, is who set the mine. During the decade, tensions with Spain had been rising over that country’s handling of a Cuban insurgency against Spanish rule. The newspaper chains of William Randolph Hearst and Joseph Pulitzer had long competed for circulation by sensationalist reporting. The deteriorating political conditions in Cuba and the harshness of Spanish attempts to suppress the rebels provided fodder for the newspapers’ “yellow” journalism. Congress had pressured the American government to do something to resolve the crisis, but neither President Grover Cleveland nor President William McKinley had taken the bait thus far.

With the heavy loss of life that accompanied the sinking, “Remember the Maine” became a national obsession. Although Spain had very little to gain from sinking an American warship, whereas Cuban rebels had much to gain in order to bring the United States actively to their cause, the public outcry was directed against Spain. The Spanish government previously had offered to change its military tactics in Cuba and to allow Cubans limited home rule. The offer now was to grant an armistice to the insurgents. The American ambassador in Spain believed that the Spanish government would even be willing to grant independence to Cuba, if there were no political or military attempt to humiliate Spain.

Neither the Spanish government nor McKinley wanted war. However, the latter proved unable to resist the new martial mood and the aroused jingoism in the press and Congress. On April 11, 1898, McKinley sent a message to Congress that did not directly call for war, but declared that he had “exhausted every effort” to resolve the matter and was awaiting Congress’s action. Congress declared war. A year later, McKinley observed, “But for the inflamed state of public opinion, and the fact that Congress could no longer be held in check, a peaceful solution might have been had.” He might have added that, had he been possessed of a stiffer political spine, that peaceful solution might have been had, as well.

The “splendid little war,” in the words of the soon-to-be Secretary of State, John Hay, was exceedingly popular and resulted in an overwhelming and relatively easy American victory. Only 289 were killed in action, although, due to poor hygienic conditions, many more died from disease. Psychologically, it proved cathartic for Americans after the national trauma of the Civil War. One symbolic example of the new unity forged by the war with Spain was that Joe Wheeler and Fitzhugh Lee, former Confederate generals, were generals in the U.S. Army.

Spain signed a preliminary peace treaty in August. The treaty called for the surrender of Cuba, Puerto Rico, and Guam. The status of the Philippines was left for final negotiations. The ultimate treaty was signed in Paris on December 10, 1898. The Philippines, wracked by insurrection, were ceded to the United States for $2 million. The administration believed that it would be militarily advantageous to have a base in the Far East to protect American interests.

The war may have been popular, but the peace was less so. The two-thirds vote needed for Senate approval of the peace treaty was a close-run matter. There was a militant group of “anti-imperialists” in the Senate who considered it a betrayal of American republicanism to engage in the same colonial expansion as the European powers. Americans had long imagined themselves to be unsullied by the corrupt motives and brutal tactics that such colonial ventures represented in their minds. McKinley, who had reluctantly agreed to the treaty, reassured himself and Americans, “No imperial designs lurk in the American mind. They are alien to American sentiment, thought, and purpose.” But, with a nod to Rudyard Kipling’s urging that Americans take on the “white man’s burden,” McKinley cast the decision in republican missionary garb, “If we can benefit those remote peoples, who will object? If in the years of the future they are established in government under law and liberty, who will regret our perils and sacrifices?”

The controversy around an “American Empire” was not new. Early American republicans like Thomas Jefferson, Alexander Hamilton, and John Marshall, among many others, had described the United States in that manner and without sarcasm. The government might be a republic in form, but the United States would be an empire in expanse, wealth, and glory. Why else acquire the vast Louisiana territory in 1803? Why else demand from Mexico that huge sparsely-settled territory west of Texas in 1846? “Westward the Course of Empire Takes Its Way,” painted Emanuel Leutze in 1861. Manifest Destiny became the aspirational slogan.

While most Americans cheered those developments, a portion of the political elite had misgivings. The Whigs opposed the annexation of Texas and the Mexican War. To many Whigs, the latter especially was merely a war of conquest and the imposition of American rule against the inhabitants’ wishes. Behind the republican facade lay a more fundamental political concern. The Whigs’ main political power was in the North, but the new territory likely would be settled by Southerners and increase the power of the Democrats. That movement of settlers would also give slavery a new lease on life, something much reviled by most Whigs, among them a novice Congressman from Illinois, Abraham Lincoln.

Yet, by the 1890s, the expansion across the continent was completed. Would it stop there or move across the water to distant shores? One omen was the national debate over Hawaii that culminated in the annexation of the islands in 1898. Some opponents drew on the earlier Whig arguments and urged that, if the goal of the continental expansion was to secure enough land for two centuries to realize Jefferson’s ideal of a large American agrarian republic, the goal had been achieved. Going off-shore had no such republican fig leaf to cover its blatant colonialism.

Other opponents emphasized the folly of nation-building and trying to graft Western values and American republicanism onto alien cultures who neither wanted them nor were sufficiently politically sophisticated to make them work. They took their cue from John C. Calhoun, who, in 1848, had opposed the fanciful proposal to annex all of Mexico, “We make a great mistake in supposing that all people are capable of self-government. Acting under that impression, many are anxious to force free Governments on all the people of this continent, and over the world, if they had the power…. It is a sad delusion. None but a people advanced to a high state of moral and intellectual excellence are capable in a civilized condition, of forming and maintaining free Governments ….”

With peace at hand, the focus shifted to political and legal concerns. The question became whether or not the Constitution applied to these new territories ex proprio vigore: “Does the Constitution follow the flag?” Neither President McKinley nor Congress had a concrete policy. The Constitution, having been formed by thirteen states, along the eastern slice of a vast continent, was unclear. The Articles of Confederation had provided for the admission of Canada and other British colonies, such as the West Indies, but that document was moot. The matter was left to the judiciary, and the Supreme Court provided a settlement of sorts in a series of cases over two decades called the Insular Cases.

Cuba was easy. Congress’s declaration of war against Spain had been clear: “The United States hereby disclaims any disposition or intention to exercise sovereignty, jurisdiction, or control over said island except for the pacification thereof, and asserts its determination, when that is accomplished, to leave the government and control of the island to its people.” In Neely v. Henkel (1901), the Court unanimously held that the Constitution did not apply to Cuba. Effectively, Cuba was already a foreign country outside the Constitution. Cuba became formally independent in 1902. In similar manner, the United States promised independence to the Philippine people, a process that took several decades due to various military exigencies. Thus, again, the Constitution did not apply there, at least not tout court, as the Court affirmed beginning in Dorr v. U.S. in 1904. That took care of the largest overseas dominions, and Americans could tentatively congratulate themselves that they were not genuine colonialists.

More muddled was the status of Puerto Rico and Guam. In Puerto Rico, social, political, and economic conditions did not promise an easy path to independence, and no such assurance was given. The territory was not deemed capable of surviving on its own. Rather, the peace treaty expressly provided that Congress would determine the political status of the inhabitants. In 1900, Congress passed the Foraker Act, which set up a civil government patterned on the old British imperial system with which Americans were familiar. The locals would elect an assembly, but the President would appoint a governor and executive council. Guam was in a similar state of dependency.

In Downes v. Bidwell (1901), the Court established the new status of Puerto Rico as neither outside nor entirely inside the United States. Unlike Hawaii or the territories that were part of Manifest Destiny, there was no clear determination that Puerto Rico was on a path to become a state and, thus, was already incorporated into the entity called the United States. It belonged to the United States, but was not part of the United States. The Constitution, on its own, applied only to states and to territory that was expected to become part of the United States. Puerto Rico was more like, but not entirely like, temporarily administered foreign territory. Congress determined the governance of that territory by statute or treaty, and, with the exception of certain “natural rights” reflected in particular provisions of the Bill of Rights, the Constitution applied only to the extent to which Congress specified.

These cases adjusted constitutional doctrine to a new political reality inaugurated by the sinking of the Maine and the war that event set in motion. The United States no longer looked inward to settle its own large territory and to resolve domestic political issues relating to the nature of the union. Rather, the country was looking beyond its shores and was emerging as a world power. That metamorphosis would take a couple of generations and two world wars to complete, the last of which triggered by another surprise attack on American warships.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/

Click Here to have the NEWEST essay in this study emailed to your inbox every day!

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In 1834, Dr. Emerson, an Army surgeon, took his slave Dred Scott from Missouri, a slave state, to Illinois, a free state, and then, in 1836, to Fort Snelling in Wisconsin Territory. The latter was north of the geographic line at latitude 36°30′ established under the Missouri Compromise of 1820 as the division between free territory and that potentially open to slavery. In addition, the law that organized Wisconsin Territory in 1836 made the domain free. Emerson, his wife, and Scott and his family eventually returned to Missouri by 1840. Emerson died in Iowa in 1843. Ownership of Scott and his family ultimately passed to Emerson’s brother-in-law, John Sanford, of New York.

With financial assistance from the family of his former owner, the late Peter Blow, Scott sued for his freedom in Missouri state court, beginning in 1846. He argued that he was free due to having resided in both a free state and a free territory. After some procedural delays, the lower court jury eventually agreed with him in 1850, but the Missouri Supreme Court in 1852 overturned the verdict. The judges rejected Scott’s argument, on the basis that the laws of Illinois and Wisconsin Territory had no extraterritorial effect in Missouri once he returned there.

It has long been speculated that the case was contrived. Records were murky, and it was not clear that Sanford actually owned Scott. Moreover, Sanford’s sister Irene, the late Dr. Emerson’s widow, had remarried an abolitionist Congressman. Finally, the suit was brought in the court of Judge Alexander Hamilton, known to be sympathetic to such “freedom suits.”

Having lost in the state courts, in 1853 Scott tried again, in the United States Circuit Court for Missouri, which at that time was a federal trial court. The basic thrust of the case at that level was procedural sufficiency. Federal courts, as courts of limited and defined jurisdiction under Article III of the Constitution, generally can hear only cases between citizens of different states or if a claim is based on a federal statute or treaty, or on the Constitution. There being no federal law of any sort involved, Scott’s claim rested on diversity of citizenship. Scott claimed that he was a free citizen of Missouri and Sanford a citizen of New York. On the substance, Scott reiterated the position from his state court claim. Sanford sought a dismissal on the basis of lack of subject matter jurisdiction because, being black, Scott could not be a citizen of Missouri.

When Missouri sought admission to statehood in 1820, its constitution excluded free blacks from living in the state. The compromise law passed by Congress prohibited the state constitution from being interpreted to authorize a law that would exclude citizens of any state from enjoying the constitutional privileges and immunities of citizenship the state recognized for its own citizens. That prohibition was toothless, and Sanford’s argument rested on Missouri’s negation of citizenship for all blacks. Thus, Scott’s continued status as a slave was not crucial to resolve the case. Rather, his racial status, free or slave, meant that he was not a citizen of Missouri. Thus, the federal court lacked jurisdiction over the suit and could not hear Scott’s substantive claim. Instead, the appropriate forum to determine Scott’s status was the Missouri state court. As already noted, that was a dry well and could not water the fountain of justice.

In a confusing action, the Circuit Court appeared to reject Sanford’s jurisdictional argument, but the jury nevertheless ruled for Sanford on the merits, based on Missouri law. Scott appealed to the United States Supreme Court by writ of error, a broad corrective tool to review decisions of lower courts. The Court heard argument in Dred Scott v. Sandford (the “d” is a clerical error) at its February, 1856, term. The justices were divided on the preliminary jurisdictional issue. They bound the case over to the December, 1856, term, after the contentious 1856 election. There seemed to be a way out of the ticklish matter. In Strader v. Graham in 1850, the unanimous Supreme Court had held that a slave’s status rested finally on the decision of the relevant state court. The justices also had refused to consider independently the claim that a slave became free simply through residence in a free state. Seven of the justices in Dred Scott believed Strader to be on point, and Justice Samuel Nelson drafted an opinion on that basis. Such a narrow resolution would have steered clear of the hot political issue of extension of slavery into new territories that was roiling the political waters and threatening to tear apart the Union.

It was not to be. Several of the Southern justices were sufficiently alarmed by the public debate and affected by sectional loyalty to prepare concurring opinions to address the lurking issue of Scott’s status. Justice James Wayne of Georgia then persuaded his fellows to take up all issues raised by Scott’s suit. Chief Justice Roger Taney would write the opinion.

Writing for himself and six associate justices, Taney delivered the Court’s opinion on March 6, 1857, just a couple of days after the inauguration of President James Buchanan. In his inaugural address, Buchanan hinted at the coming decision through which the slavery question would “be speedily and finally settled.” Apparently having received advance word of the decision, Buchanan declared that he would support the decision, adding coyly, “whatever this may be.” Some historians have wondered if Buchanan actually appreciated the breadth of the Court’s imminent opinion or misunderstood what was about to happen. Of the seven justices that joined the decision that Scott lacked standing to sue and was still a slave, five were Southerners (Taney of Maryland, Wayne, John Catron of Tennessee, Peter Daniel of Virginia, and John Campbell of Georgia). Two were from the North (Samuel Nelson of New York and Robert Grier of Pennsylvania). Two Northerners (Benjamin Curtis of Massachusetts and John McLean of Ohio) dissented.

Taney’s ruling concluded that Scott was not a citizen of the United States, because he was black, and because he was a slave. Thus, the federal courts lacked jurisdiction, and by virtue of the Missouri Supreme Court’s decision, Scott was still a slave. Taney’s argument rested primarily on a complex analysis of citizenship. When the Constitution was adopted, neither slaves nor free blacks were part of the community of citizens in the several states. Thereafter, some states made citizens of free blacks, as they were entitled to do. But that did not affect the status of such individuals in other states, as state laws could not act extraterritorially. Only United States citizenship or state citizenship conferred directly under the Constitution could be the same in all states. Neither slaves nor free blacks were understood to be part of the community of citizens in the states in 1788 when the Constitution was adopted, the only time that state citizenship could have also conferred national citizenship. Thereafter, only Congress could extend national citizenship to free blacks, but had never done so. States could not now confer U.S. citizenship, because the two were distinct, which reflected basic tenets of dual sovereignty.

Taney rejected the common law principle of birthright citizenship based on jus soli, that citizenship arose from where the person was born. This was not traditionally the only source of citizenship, the other being the jus sanguinis, by which citizenship arose through the parents’ citizenship, unless a person was an alien and became naturalized under federal law. Since blacks were not naturalized aliens, and their parental lineage could not confer citizenship on them under Taney’s reasoning, the rejection of citizenship derived from birth in the United States meant that even free blacks were merely subordinate American nationals owing obligations and allegiance to the United States but not enjoying the inherent political, legal, and civil rights of full citizenship. This was a novel status, but one that became significant several decades later when the United States acquired overseas dominions.

After the Civil War, the 14th Amendment was adopted. The very first sentence defines one basis of citizenship. National citizenship and state citizenship are divided, but the division is not identical to Taney’s version. To counter the Dred Scott Case and to affirm the citizenship of the newly-freed slaves, and, by extension, all blacks, national citizenship became rooted in jus soli. If one was born (or naturalized) in the United States and was subject to the jurisdiction of the United States, that is, one owed no loyalty to a foreign government, national citizenship applied. State citizenship was derivative of national citizenship, not independent of it, as Taney had held, and was based on domicile in that state.

The Chief Justice also rejected the idea that blacks were entitled to the same privileges and immunities of citizenship as whites. Although Taney viewed the Constitution’s privileges and immunities clause in Article IV broadly, if blacks were regarded as full state citizens under the Constitution, then Southern states could not enforce their laws that restricted the rights of blacks regarding free speech, assembly, and the keeping and bearing of arms. That, in turn, would threaten the social order and the stability of the slave system.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

Click Here to have the NEWEST essay in this study emailed to your inbox every day!

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Guest Essayist: Joerg Knipprath

Dred Scott lost his appeal for a second reason, his status as a slave. The Court’s original, since-abandoned, plan had been to decide the whole suit on the basis of the Strader precedent that Scott was a slave because the Missouri Supreme Court had so found. That approach still could have been used to deal summarily with this issue in the eventual opinion. But Taney struck a bolder theme. He analyzed the effect of Scott’s residence in Illinois and Wisconsin Territory on his status. This allowed Taney to challenge more broadly the prevailing idea that the federal government could interfere with the movement of slavery throughout the nation.

Taney opined that the federal government’s power to regulate directly the status of slavery in the territories, including its abolition, was derived from Article IV, Section 3, of the Constitution, which authorized Congress to “make all needful Rules and Regulations respecting the Territory … belonging to the United States” and to admit new states. However, Taney claimed, this provision applied only to the land that had been ceded to the United States by the several states under the Articles of Confederation. Thus, Congress could abolish slavery in the Northwest Ordinance of 1787, reenacted in 1789, because it applied to such ceded land. Any territory acquired by the United States thereafter, such as through the Louisiana Purchase or the Treaty of Guadalupe Hidalgo after the Mexican War, was held by the United States in trust for the whole people of the United States. Thus, white citizens who settled in those territories did not lose the rights they had acquired residing within their previous states. They were not “mere colonists, … to be governed by any laws [the general government] may think proper.” These rights would include that to property and extended to the property in slaves.

Lastly, Taney explained, the Fifth Amendment expressly protected against federal laws that sought to deprive a person of his life, liberty, or property without due process. Due process guaranteed not only a fair trial, but protected generally against arbitrary laws. A law that deprived a person of property, including slaves, simply because he moved into a territory controlled by the federal government, “could hardly be dignified with the name of due process of law.” This was a founding example of the doctrine of substantive due process that has been invoked by the courts in more recent cases to strike down laws against abortion and same-sex marriage. Taney’s distinction between the constitutional rights of citizens and colonists and his postulate that the Constitution limited Congress’s power of administering the territories settled by Americans reappeared in modified form a half century later in cases dealing with Congress’s control over overseas territory acquired after the Spanish-American War.

Scott did not become free by residing in free territory, because the Missouri Compromise of 1820, which excluded slavery from Wisconsin Territory, was unconstitutional. That decision was radical because it upset a long constitutional custom of geographically dividing free from (potentially) slave territory, beginning with the Northwest Ordinance, but which had been undermined in the Compromise of 1850 and the Kansas-Nebraska Act of 1854. Nor could Wisconsin’s territorial legislature abolish slavery, in Taney’s analysis, through the newly-minted doctrine of “popular sovereignty.” That legislature was merely an agent of Congress, and had no more power to destroy constitutional rights than did its principal.

“Popular sovereignty” lay at the core of the Compromise of 1850 and the Kansas- Nebraska Act. That doctrine, championed by Senators Henry Clay and Stephen Douglas, allowed slave holders to bring their property into all parts of the politically unorganized territorial area. Under the Northern view, once organized as a territory, the people acting through a convention or through their territorial legislature might authorize or prohibit slavery. Under the Southern view, only states could abolish slavery, and any such prohibition had to await a decision of the people when seeking statehood or thereafter. The Court thus endorsed the Southern perspective, further inflaming sectional tensions because the two federal compromise laws had always been a bitter pill to swallow for many in the North.

Four of the concurring justices wrote opinions that reached the same result via various other doctrinal paths. Two dissented. The main dissent, by Benjamin Curtis—whose brother George Ticknor Curtis was one of Scott’s attorneys—relied on the theory that state citizenship was the source of national citizenship. Therefore, once someone resided in a state, and was not merely a sojourner, he acquired the rights of citizenship in that state. Scott, having resided in a free state, had shed his status as a slave and could not be reduced to that status merely by returning to Missouri. Once free, he was also entitled to all privileges and immunities of citizens, which included the right to travel freely to other states. Curtis’s theory, by focusing on states as the source of all citizenship, was even more inconsistent than Taney’s with the eventual language of the Fourteenth Amendment, which embodied a national supremacy approach.

From the beginning, the Dred Scott Case was received poorly by the public. Its controversial, and to us odious, result also tarnished the legacy of Roger Taney. Viewed from our more distant historical perspective, perhaps a more nuanced evaluation is possible. Judged by intellectual standards, Taney’s opinion showed considerable judicial craftsmanship. Taney himself was an accomplished and influential Chief Justice, whose Court addressed legal and constitutional matters significant for the country’s development.

Why then did Taney opt for an approach that destroyed the delicate balances worked out politically in the Congress, and would have nationalized the spread of slavery? After all, the narrower route of Strader lay open to the Court for the same result. Part of it was sympathy for the Southern cause, although Taney by then was not himself a slave owner. Indeed, while in law practice, Taney had vigorously denounced slavery when defending an abolitionist minister accused of inciting slave rebellions. Mostly, it was the perception that the political process was becoming unable to negotiate the hardening positions of both sides on the various facets of the slavery controversy. Those facets included protection of the “peculiar institution” in the existing slave states, expansion of slavery into new territory, and recapture of fugitive slaves from states hostile to such efforts.

The relatively successful compromises of the late 18th and early 19th centuries with their attendant comity among the states were in the distant past. Congressional efforts were increasingly strained and laborious, as experience with the convoluted process that led to the Compromise of 1850 had shown. Southerners’ paranoia about their section’s diminished political power and comparative industrial inadequacy, as well as Northerners’ moral self-righteousness and sense of political ascendancy eroded the mutual good will needed for compromise. Presidential leadership had proved counterproductive to sectional accommodation, as with James Polk and the controversy over potential expansion of slavery into territory from the Mexican War. Or, such executive efforts were ineffective, as with Franklin Pierce’s failed attempt to act while President like the compromise candidate that he had been at the Democratic convention. Worse yet, eventually such leadership was non-existent, as with James Buchanan.

There remained only the judicial solution to prevent the rupture of the political order that was looming. Legal decisions, unlike political ones, are binary and generally produce a basic clarity. One side wins, the other loses. Constitutional cases add to that the veneer of moral superiority. If the Constitution is seen as a collection of moral principles, not just a pragmatic collection of political compromises, the winner in a constitutional dispute has a moral legitimacy that the loser lacks. Hence, Taney decided to cut the Gordian knot and hope that the Court’s decision would be accepted even by those who opposed slavery. Certainly, President Buchanan, having received advance word of the impending decision, announced in his inaugural address that he would accept the Court’s decision and expected all good citizens to do likewise.

Unfortunately, matters turned out differently. At best, the decision had no impact on the country’s lurch toward violence. At worst, the decision hastened secession and war. Abraham Lincoln presented the moderate opposition to the decision. In a challenge to the Court, he defended the President’s independent powers to interpret the Constitution. In his first inaugural address, Lincoln disavowed any intention to overturn the decision and free Dred Scott. He then declared, “At the same time, the candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, … the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”

Scott and his family were freed by manumission in May, 1837, two months after the decision in his case. Scott died a year later.

In the eyes of many, the Court’s institutional legitimacy suffered from its attempt to solve undemocratically such a deep public controversy about a fundamental moral issue. A more recent analogue springs to mind readily. Many years after Dred Scott, partially dissenting in the influential abortion case Planned Parenthood v. Casey in 1992, Justice Antonin Scalia described a portrait of Taney painted in 1859: “There seems to be on his face, and in his deep-set eyes, an expression of profound sadness and disillusionment. Perhaps he always looked that way, even when dwelling upon the happiest of thoughts. But those of us who know how the lustre of his great Chief Justiceship came to be eclipsed by Dred Scott cannot help believing that he had that case—its already apparent consequences for the Court and its soon-to-be-played-out consequences for the Nation—burning on his mind.” Scalia’s linkage of Taney’s ill-fated undemocratic attempt to settle definitively the slavery question by judicial decree to the similar attempt by his own fellow justices to settle the equally morally fraught abortion issue was none- too-subtle. Lest someone miss the point, Scalia concluded: “[B]y foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.”

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

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Guest Essayist: Joerg Knipprath

Two weeks after the death of George Washington on December 14, 1799, his long-time friend General Henry “Light Horse Harry” Lee delivered a funeral oration to Congress that lauded the deceased as, “First in war- first in peace- and first in the hearts of his countrymen, he was second to none in the humble and endearing scenes of private life; pious, just, humane, temperate and sincere; uniform, dignified and commanding, his example was as edifying to all around him, as were the effects of that example lasting.” The Jeffersonian newspaper of Philadelphia, The Aurora, had a rather different opinion than those countrymen. Sounding like his current counterparts in their sentiments about today’s President, the publisher declared on Washington’s retirement from office in 1797, “[T]his day ought to be a jubilee in the United States … for the man who is the source of all the misfortunes of our country, is this day reduced to a level with his fellow citizens.”

Each author likely could point to examples to buttress his case. Washington wore many hats in his public life, and his last service, as President from 1789 to 1797, had its shares of controversies. Washington kept his private life just that to his best abilities, with the result that it soon became mythologized. In public, Washington was reserved (or “dull,” to his detractors), dignified (or “stiff,” to his detractors), and self-disciplined. Yet his usually even-tempered nature occasionally flared, which few were willing to risk. According to Samuel Eliot Morison, during the Philadelphia Constitutional Convention, Alexander Hamilton bet Gouverneur Morris a dinner that the latter would not approach Washington, slap him on the back, and say, “How are you today, my dear General?” Morris, the convention’s jokester, took the bet, but after the look that Washington gave him upon the event, professed that he would never do so again for a thousand dinners. Washington’s formality had its limits. A Senate committee proposed that the official address to the President should be, “His Highness the President of the United States of America and the Protector of the Rights of the Same.” The Senate rejected this effusive extravagance, and Washington was simply addressed as Mr. President.

On a later occasion, Morris wrote Washington, “No constitution is the same on paper and in life. The exercise of authority depends on personal character. Your cool, steady temper is indispensably necessary to give firm and manly tone to the new government.” Not only is this a correct observation about constitutions in general. A formal charter, the “Constitution” as law, is not all that describes how the political system actually operates, that is, the “constitution” as custom and practice. It is particularly true about Article II of the Constitution of 1787, which establishes the executive branch and delineates most of its powers. While some of those powers are set out precisely, others are ambiguous, such as the “executive power” and “commander-in-chief” clauses.

In several contributions to The Federalist, most thoroughly in No. 70, Hamilton explained how the Constitution created a unitary executive. He stressed the need for energy and for clarity of accountability that comes from such a system. In No. 67, he ridiculed “extravagant” misrepresentations and “counterfeit resemblances” by which opponents had sought to demonize the President as a potentate with royal prerogatives. Still, it has often been acknowledged that the Constitution sets up a potentially strong executive-style government. Justice Robert Jackson in Youngstown Sheet & Tube Co. v. Sawyer in 1952 described the President’s real powers, “The Constitution does not disclose the measure of the actual controls wielded by the modern presidential office. That instrument must be understood as an Eighteenth-Century sketch of a government hoped for, not as a blueprint of the Government that is…. Executive power has the advantage of concentration in a single head in whose choice the whole Nation has a part, making him the focus of public hopes and expectations…. By his prestige as head of state and his influence upon public opinion, he exerts a leverage upon those who are supposed to check and balance his power which often cancels their effectiveness.” Washington was keenly aware of his groundbreaking role and used events during his time in office to define the constitutional boundaries of Article II and to shape the office of the President from this “sketch.”

Washington’s actions in particular controversies helped shape the contours of various ambiguous clauses in Article II of the Constitution. He shored up the consolidation of the executive branch into a “unitary” entity headed by the President and guarded its independence from the Congress. From the start, Washington was hamstrung by the absence of an administrative apparatus. The Confederation had officers and agents, but due to its circumscribed powers and lack of financial independence, it relied heavily on state officials to administer peacetime federal policy. The new Congress established various administrative departments, which quickly produced a controversy over the removal of federal officers. Would the President have this power exclusively, or would he have to receive Senate consent, as a parallel to the appointment power? The Constitution was silent. After much debate over the topic in the bill to establish the Departments of State and War, a closely-divided Congress assigned that power to the President alone. Some opponents of the law objected that the President already had that power as chief executive, and that the statute could be read as giving him that power only as a matter of legislative grace, to be withdrawn as Congress saw fit.

Even if this removal power was the President’s alone by implication from the executive power in Article II, the same analysis might not apply to other officers. Congress had been clear to note that the departments in the statute were closely tied to essential attributes of executive power, that is, foreign relations and control over the military during war. The position of the Treasury Secretary, on the other hand, was constitutionally much more ambiguous, given Congress’s preeminent role in fiscal matters. The Treasury Secretary was a sort of go-between who straddled Congress’s power over the purse and the President’s power to direct the administration of government. The law that created the Treasury Department required the Secretary to report to Congress and to “perform all such services relative to the finances, as he shall be directed to perform.”

This implied that the Secretary was responsible to Congress rather than the President. If followed with other departments, this would move the federal government in direction of a British-style parliamentary system and blur the separation of powers between the branches. Washington resisted that trend, but his victory in the removal question was incomplete. It was not until the Andrew Jackson administration that the matter was settled. Jackson removed two Treasury Secretaries who had refused his order to transfer government funds from the Second Bank of the United States. While the Senate censured him for assuming unconstitutional powers, Jackson’s position ultimately prevailed and the censure was later rescinded. Still, controversy over the removal of cabinet heads without Senatorial consent flared up again after the Civil War with the Tenure of Office Act of 1867 and led to the impeachment of President Andrew Johnson in 1868. It was not until 1926 in Myers v. U.S. that the Supreme Court acknowledged the President’s inherent removal power over executive officers.

A matter of much greater immediate controversy during the Washington administration was the President’s Neutrality Proclamation in 1793. The country was in no position, militarily, to get between the two European powers fighting each other, Great Britain and the French Republic. To stave off pressure from both sides, and from their American partisans, to join their cause, Washington declared the United States to be neutral. Domestic critics charged that this invaded the powers of Congress. Hamilton, ever eager to defend executive power, wrote public “letters” under the appropriately clever pen name “Pacificus.” He set forth a very broad theory of implied powers derived from elastic clauses in Article II, primarily the executive power clause. In light of those powers and the President’s position as head of the executive branch, the President could do whatever he deemed necessary for the well-being of the country and its people, unless the Constitution expressly limited him or gave the claimed power to Congress. In this instance, until Congress declared war, Washington could declare peace.

Hamilton’s position made sense, especially as Congress met only a few weeks each year, while the President could respond to events more quickly. However, Hamilton did not go unchallenged. At the urging of Jefferson, a reluctant James Madison wrote his “Helviticus” letters that presented a much more constrained view of those same constitutional clauses. Hamilton’s asseverations have generally carried the day, although political struggles between Congress and the President over claimed executive excesses have punctuated our constitutional history and continue to serve as flashpoints today. Hamilton’s theory, and Washington’s application thereof, cemented the “unitary executive” conception of the presidency.

While generally silent on foreign affairs, the Constitution does address treaties. The power to make treaties was part of the federative power of the British monarch. Thus, at least from Hamilton’s perspective, the President could conduct foreign affairs and make treaties as the sole representative of the country. However, constitutional limits must be observed. Thus, the Senate has an “advice and consent” role. Originally, this was understood to require the President to consult with the Senate on negotiating treaties before he actually made one.

Washington tried this approach early in his administration. He and Secretary of War Henry Knox appeared before the Senate to discuss pending treaty negotiations with the Creek Indians. Rather than engaging the President and Knox, the Senate referred the matter to a committee. Washington angrily left, declaring, “This defeats every purpose of my coming here.” Twice more he sent messages to get advice on negotiations. Receiving no responses, Washington gave up even those efforts. Since then, Presidents have made treaties without prior formal consultation with the Senate. The Senate’s role now is to approve or reject treaties through its “consent” function. Of course, informal discussions with individual Senators may occur. The Senate’s similar formal advice role for appointments of federal officers likewise has atrophied.

Washington also used constitutional tools to participate effectively in domestic policy. For one, the Constitution obliged the President to deliver to Congress from time to time information on the state of the union and to recommend proposals. Washington used this opportunity for an annual report that he presented in person at the opening of each session of Congress. Presidents have continued this tradition, although, beginning with Jefferson, they no longer appeared personally until Woodrow Wilson revived the practice.

Another such tool was the President’s qualified veto over legislation. A potentially powerful mechanism for executive dominance, early Presidents used it sparingly. The controversy was over the permissible basis of a veto. Could it be used for any reason, such as political disagreement with the legislation’s policy, or only for constitutional qualms? Washington sympathized with the latter position, advocated by Jefferson. On that ground, he first vetoed an apportionment of the House of Representatives in 1791 that he believed violated the Constitution’s prohibition against giving a state more than one representative for every 30,000 inhabitants. Andrew Jackson eventually used the veto for purely political reasons, which has become the modern practice.

One more constitutional evolution that Washington set in motion involved government secrecy and the President’s right to withhold information from Congress and the courts, a doctrine known as “executive privilege.” It appears nowhere in the Constitution, but was recognized under the common law. There are two broad aspects to this doctrine. One is to protect the confidentiality of communications between the President and his executive branch subordinates. The other is to guard state secrets in the interest of national and military security. Again, under Hamilton’s implied powers, the President needs such privilege to carry out the duties of his office and to protect the independence of the executive branch. Two events during Washington’s administration gave an early shape to this doctrine.

In October, 1791, General Arthur St. Clair, the governor of the Northwest Territory took 2,000 men, including the entire regular army plus several hundred militia, to build a fort to counter attacks by an alliance of Indian tribes supported by the British. On November 4, St. Clair’s force, down to about 920 from desertion and illness, was surprised by the Indians and suffered 900 casualties in the rout, the great majority of them killed. The Indians also killed the 200 camp followers, including wives and children, in what became the worst defeat of the American army by Indians. To no one’s surprise, the House ordered an inquiry and sought various documents from the War Department relating to the campaign.

Washington consulted his cabinet in what was perhaps the first meeting of the entire body. With the cabinet’s agreement, Washington refused to turn over most of the requested documents on the ground that they must be kept secret for the public good. Thus was the state secrets doctrine incorporated into American constitutional government. A committee in the House eventually exonerated St. Clair and blamed the rout on poor planning and equipping of the force. The defeat of St. Clair was reversed by General Anthony Wayne with a larger force of 2,000 regulars and 700 militia in August, 1794, at the Battle of Fallen Timbers. That victory produced a peace treaty, which ended the Indian threat.

The second occurred when the House demanded that the administration disclose to them the instructions Washington had given to American negotiators regarding the unpopular Jay Treaty of 1794 with Great Britain. The President declined on grounds of confidentiality, relying on the Constitution’s placement of the treaty power in the President and Senate. The flaw with Washington’s argument was that the House had to appropriate funds required by the treaty. The House insisted on receiving the documents to carry out its constitutional appropriations function. Washington stood his ground, and the House grudgingly dropped the matter.

Any overview of the Washington administration requires at least a brief mention of the influence of Alexander Hamilton. Hamilton had long enjoyed Washington’s support, well before he became Secretary of the Treasury. His influence was well-earned. It is not uncommon for historians to refer to the United States of the 1790s as Hamilton’s Republic. Perhaps his signal achievement were his reports on the public credit and on manufactures, which Congress had asked him to prepare. The former, which he submitted on January 14, 1790, recommended that the foreign and domestic debt of the United States be paid off at full value, rather than at the depreciated levels at which the notes were then trading. As well, the United States would assume the states’ outstanding debts. The entirety would be funded at par by newly-issued bonds paying 6% interest. Import duties and excise taxes imposed under Congress’s new taxing power would provide the source to pay the interest and principal. Congress narrowly approved Hamilton’s proposal after he struck a deal with Jefferson that would place the new national capital in the South in 1800. The foreign debt was paid off in 1795 and the domestic debt forty years later.

The plan also established the Bank of the United States, modeled broadly on the Bank of England and the abortive Bank of North America, a venture by Robert Morris and Hamilton under the Articles of Confederation. Among other functions, the Bank would stabilize monetary excesses and protect American credit rating. Congress approved the Bank Bill in February, 1791. Hamilton’s recommendations in his Report on Manufactures, presented at the end of 1791, were not accepted by Congress. They eventually became the foundation for protectionist policies in favor of nascent domestic industries in the nineteenth century.

Washington’s last contribution to American constitutional development was his refusal to serve more than two terms. He had agreed only reluctantly even to that second term. His retirement was not the first time he had left office voluntarily even though he had sufficient standing to retain power. Years earlier, he had surrendered his command of the Army to Congress at the end of the Revolutionary War. The Constitution was silent on presidential term limits. Indeed, Hamilton had argued against them in The Federalist. By leaving the Presidency after eight years, Washington established the two-term custom that was not violated until Franklin Roosevelt in the 1940 election. Fear of such “third-termites,” made worse by FDR’s election to a fourth term, soon produced the 22nd Amendment, which formalized the two-term custom.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

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Guest Essayist: Joerg Knipprath

In perhaps its most significant legislative action, the Congress of the Articles of Confederation passed the Northwest Ordinance on July 13, 1787. This landmark law was an act of institutional strength during a period of marked institutional weakness, a reminder of a national will that had been battered by fears of disunion, and a source of constitutional principles that defined parts of the fundamental charter that would replace the Articles a year later.

The domain ceded by the British to the states under the Treaty of Paris of 1783 extended to the Mississippi River, well westward of the main area of settlement and even of the “backcountry” areas such as the Piedmont regions of Virginia and the Carolinas. The Confederation and its component states were land-rich and cash-poor. The answer would appear to be to open up this land for settlement by selling tracts to bona fide purchasers and to encourage immigration from Europeans. But matters were not that easy.

For some years before independence, there had been a gradual stream of westward migration past the Allegheny and Cumberland Mountains. Shocked into action by the ferocity of the Pontiac War that flared even as the war with the French in North America was winding down, the British sought to end this movement.  Accordingly, King George III issued the Proclamation of 1763 in October of that year, which prohibited colonial governments from granting land titles to Whites beyond the sources of rivers that flow into the Atlantic Ocean. Nor could White squatters occupy this land. The objective was to pacify the Indians, secure the existing frontier of White settlement, reduce speculation in vast tracts of land, divert immigration to British Canada, and protect British commerce and importation of British goods by a population concentrated near the coast.

While the policy initially succeeded in damping western settlement, in the longer term it alienated the Americans and helped trigger the move to independence. Ironically, during the Revolutionary War, those who actually had moved to the western settlements often considered themselves aggrieved and politically marginalized by the colonial assemblies, provincial congresses, and early state legislatures that were controlled by the eastern counties. Westerners were more likely to sit out the war, flee to the off-limits lands, or even align with the British.

Over time, the policy increasingly was ignored. Subsequent treaties moved the line of settlement westward. Squatters, land speculators and local governments evaded that revision, too. The historian Samuel Eliot Morison describes the actions of George Washington and his partner William Crawford in obtaining deeds from the colonial government of Pennsylvania to a large tract of land that lay west of the Proclamation line. In a letter to Crawford, Washington expressed his conviction that the proclamation was temporary and bound to end in a few years. “Any person therefore who neglects the present opportunity of hunting out good lands and in some measure marking … them for their own (in order to keep others from settling them) will never regain it…. The scheme [of marking the claim must be] snugly carried out by you under the pretense of hunting other game.” Washington’s secretive “scheme” was standard practice.

Washington was a comparatively minor participant. Speculators included a who’s who of colonial (and British) politicians and upper class merchants. While the British government vetoed some of the more flagrant schemes that involved many millions of acres, the practice continued under the Articles of Confederation and the Constitution of 1787. With independence a reality, Americans need no longer be influenced by British imperial policy. The new governments could accede to the popular clamor to open up the western lands.

However, three issues needed to be resolved: the conflicting state claims to western land, by having the states cede the contested areas to the Confederation; the orderly disposition of public lands, by surveying, selling, and granting legal title; and the creation of a path to statehood for this unorganized wilderness. The Articles of Confederation addressed none of these. The first was accomplished by Congress in 1779 and 1780 through resolutions urging the states to turn over such disputed land claims to the Confederation as public land. Most did. Unlike other actions by Congress under the Articles that required assent by the state legislatures, these public lands would be administered directly by the Congress. During the later debate on the Constitution of 1787, James Madison and others used Congress’s control over the western lands as an example of the dangers of unchecked unenumerated powers. This was quite in contrast to their usual complaints about the Confederation’s weakness. To be fair to Madison, he admitted that he supported what Congress had done. Congress solved the second issue on May 20, 1785, when it legislated a system of surveying the new public lands, dividing them into townships, and selling the surveyed land by public auction. The third resulted in the Northwest Ordinance.

The catalyst for this last solution was the Ohio Company, one of the land speculation syndicates. General Rufus Putnam and various New England war veterans organized the company to purchase 1.5 million acres for $1 million in depreciated Continental currency with an actual value of about one-eighth of the face amount. Even with the potential to raise money for the Confederation’s empty coffers, Congress barely met its quorum when eight states met to consider the proposal. As a condition of the deal, the Ohio Company wanted the Northwest Ordinance in order to make their land sales more attractive to investors. Rufus King and Nathan Dane of Massachusetts drafted the Ordinance. All eight states represented approved the law, with all but one of the 18 delegates in favor. Ultimately, the Ohio Company was able to raise only half the amount promised and purchased 750,000 acres. However, the Ordinance applied throughout the unorganized territory north of the Ohio River.

The Ordinance did not spring spontaneously from the effort of King and Dane. Congress in 1780 had declared in its earlier resolution that the lands ceded to the Confederation would be administered directly by the Congress with the goal that they would be “settled and formed into distinct republican states, which shall become members of the Federal Union.” Four years later, Thomas Jefferson presented a proposal to Congress, which, with some amendments, was adopted as the Land Ordinance of 1784. It provided for division of the territory into ten eventual states, the establishment of a territorial government when the population reached 20,000, and statehood when the population reached the same as that of the smallest of the original thirteen.

The Ordinance had three important components. First, of course, the statute provided for the political organization of the territory. The whole territory was divided into three “districts.” A territorial assembly would be established for a portion of the territory as soon as that area had at least 5,000 male inhabitants. Congress would appoint a governor, and a territorial court would be established. All of these officials had to meet various property requirements consisting of freehold estates between 200 and 1,000 acres. Voting, too, required ownership of an estate of at least 50 acres. Once the population reached 60,000, the area could apply to Congress for admission to statehood on equal terms with the original states. Eventually, five states, Ohio, Indiana, Illinois, Michigan, and Wisconsin emerged from the Northwest Territory. The process of colonization and decolonization established under the Ordinance became the model followed in its general terms through the admission of Alaska and Hawaii in 1959.

Another critical feature of the Ordinance was the inclusion of an embryonic bill of rights in the first and second articles. The first protected the free exercise of religion. The second was more expansive and singled out, among others, various natural rights, such as the protection against cruel and unusual punishments, against uncompensated takings, and against retroactive interference with vested contract rights. The enumeration of specific restrictions on government power was consistent with constitutional practice at the state level. It also bolstered the demand of critics of the original Constitution of 1787 that a bill of rights be included in that document.

As a final matter, the Ordinance addressed the controversial question of slavery. Article VI both prohibited slavery itself in the territory and required that a fugitive slave escaping from one of the original states be “conveyed to the person claiming his, or her labor, or service ….” While this compromise was not ideal for Southern slave states, their delegations acquiesced because the Ordinance did not cover the territory most consequential to them, which extended westward from Virginia, North Carolina, and Georgia. The compromise also established a geographic line for the exclusion of slavery, which approach was not challenged until the debate over the admission of Missouri to statehood in 1819-1820. The eventual Missouri Compromise retained that solution, although a different geographic line was drawn. The fugitive slave provision and its successors were generally enforced until the 1830s, when the issue began to vex American politics and pit various states against each other and the federal government.

Article III of the Ordinance declared, “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools, and the means of education shall forever be encouraged.” This affirmation reflected republican theory of the time. John Adams would write in 1798, “Our Constitution was made only for a moral and religious People.” George Washington made a similar point in his Farewell Address on September 19, 1796, “Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. . . . And let us with caution indulge the supposition that morality can be maintained without religion.” In that same speech, Washington tied religion and morality to human happiness and to popular and free government. Article III thus embodied a classic conception of the path to human fulfillment (“happiness”) and virtuous citizenship. Training in these necessary virtues must start early. Thus, schools were needed. Unlike for us and our modern sensibilities, there was no scruple that this would be an improper establishment of religion. The earlier Ordinance of 1785 had provided that in each surveyed township a certain area would be set aside to build schools. This article called for the spirit that would animate their physical structure.

The Confederation’s greatest achievement proved to be its last. The Northwest Ordinance had to be renewed when the Constitution of 1787 replaced the Confederation. The new Congress did so, with minor changes, in 1789, and President Washington signed the bill into law on August 7 of that year. On May 26, 1790, the Southwest Ordinance was approved to organize the territory south of the Ohio River. The terms of that statute were similar to its northern counterpart, except in the crucial matter of slavery. The Southwest Ordinance prohibited Congress from making any laws within the territory that would tend to the emancipation of slaves. This signaled Congress’s willingness to permit the “peculiar institution” to be extended into new states, if the settlers wished. Taken together with the Northwest Ordinance, the statutes set the pattern for compromise on the slavery issue that lasted until the 1850s. Intended to organize the “Old Southwest,” the Southwest Ordinance ultimately governed only Tennessee’s passage to statehood. The Northwest Ordinance affected a much larger area and lasted longer, ending with the admission of Wisconsin to the union in 1848.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

Click Here to have the NEWEST essay in this study emailed to your inbox every day!

Click Here to view the schedule of topics in our 90-Day Study on American History.

Guest Essayist: Joerg Knipprath

The Declaration of Independence that formalized the revolutionary action of the Second Continental Congress of the thirteen states did not, however, establish a plan of government at the highest level of this American confederacy. The members of that body understood that such a task needed to be done to help their assembly move from a revolutionary body to a constitutional one. A political constitution in its elemental form merely describes a set of widely shared norms about who governs and how the governing authority is to be exercised. A collection of would-be governors becomes constitutional when a sufficiently large portion of the population at least tacitly accepts that assemblage as deserving of political obedience. Such acceptance may occur over time, even as a result of resigned sufferance. Presenting a formal plan of government to the population may consolidate that new constitutional order more quickly and smoothly.

That process was well underway at the state level before July 4, 1776. Almost all colonies had provincial congresses by the end of 1774, which, presently, assumed the functions of the previous colonial assemblies and operated without the royal governors. In 1775, the remaining three colonies, New York, Pennsylvania, and Georgia, followed suit. Although they foreswore any design for independence, as a practical matter, these bodies exercised powers of government, albeit as revolutionary entities.

In 1776, the colonies moved to formalize their de facto status as self-governing entities by adopting constitutions. New Hampshire did so by way of a rudimentary document in January, followed in March by South Carolina. A Virginia convention drawn from the House of Burgesses drafted a constitution in May and adopted it in June. Rhode Island and Connecticut simply used their royal charters, with suitable amendments to take account of their new republican status. On May 10, still two months before the Declaration of Independence, the Second Continental Congress, somewhat late to the game, resolved that the colonies should create regular governments. These steps, completed in 1777 by the rest of the states, other than Massachusetts, established them as formal political sovereignties, although their continued viability was uncertain until the British military was evicted and the Treaty of Paris was signed in 1783.

At the level of the confederacy, the Second Continental Congress continued to act as a revolutionary assembly, but took steps to establish a formal foundation for that union beyond resolutions and proclamations. A committee of 13, headed by John Dickinson of Pennsylvania, the body’s foremost constitutional lawyer, completed an initial draft in July, 1776. That draft was rejected, because many members claimed it gave too much power to Congress at the expense of the states. Although time was of the essence to set up a government to run the war effort successfully, Congress could not agree to a plan until November 15, 1777, when they voted to present the Articles of Confederation to the states for their approval.

Ten states approved in fairly short order by early 1778, two within another year. Maryland held out until March 1, 1781, just a half year before the military situation was decided decisively in favor of the Americans as a result of the Battle of Yorktown. Since the Articles required unanimous consent to go into effect, this meant that the war had been conducted without a formal governmental structure. But necessity makes its own rules, and the Congress acted all along as if the Articles had been approved. Such repeated and consistent action, accepted by all parties established a de facto constitution. While the British might demur, at some point between the approval of the Articles in Congress and Maryland’s formal acceptance, the Congress ceased to be merely a revolutionary body of delegates and became a constitutional body. Maryland’s belated action merely formalized what already existed. The Continental Congress became the Confederation Congress, although it was still referred to colloquially by its former name.

One of the persistent arguments about the Articles questions their political status. Were they a constitution of a recognized separate sovereignty, or merely a treaty among essentially independent entities. There clearly are textual indicia of each. The charter was styled “Articles of Confederation and Perpetual Union,” a phrase repeated emphatically in the document. On the other hand, Article II assured each state that it retained its “sovereignty, freedom, and independence, and every Power, Jurisdiction, and right, which is not … expressly delegated to the United States.” Moreover, Article III expressly declared that the states were severally entering into “a firm league of friendship with each other, ….”

Article I provided, “The Stile of this confederacy shall be ‘The United States of America.” That suggests a separate political entity beyond its component parts. Yet the document had numerous references to the “united states in congress assembled,” and defined “their” actions. This, in turn, suggests that the states were united merely in an operative capacity, and that an action by Congress merely represented those states’ collective choice. Indeed, the very word “congress” is usually attached to an assemblage of independent political entities, such as the Congress of Vienna.

As an interesting note, such linguistic nods to state independence continue in some fashion under the Constitution of 1787. Federal laws are still enacted by a “Congress.” More significant, each time that the phrase “United States” appears in the Constitution, where the structure makes the singular or plural form decisive, the plural form is used. For example, Article III, section 3 declares, “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, ….”

The government established by the Articles had the structure of a classic confederation. Theoretical sovereignty remained in the states, and practical sovereignty nearly did. The Articles were a union of states, not directly of citizens. The state legislatures, as part of the corporate state governments, rather than the people themselves or through conventions, approved the Articles. Approval had to be unanimous, in that each state had to agree. The issue of state representation proved touchy, as it would later in the Philadelphia convention that drafted the Constitution of 1787. While the larger states wanted more power, based on factors such as wealth, population, and trade, this proved to be both too difficult to calculate and unacceptable politically to the smaller states. Due to the need to get something drafted during the war crisis, the solution was to continue with the system of state equality used in the Continental Congress and to leave further refinements for later. States were authorized, however, to send between two and seven delegates that would caucus to determine their state delegation’s vote. This state equality principal was also consistent with the idea of a confederation of separate sovereignties.

The Confederation Congress had no power to act directly on individuals, but only on the states. It was commonly described as a federal head acting on the body of the states. Congress also had no enforcement powers. They could requisition, direct, plead, cajole, and admonish, but nothing more. Much depended on good faith action by state politicians or on the threat of interstate retaliation if a state failed to abide by its obligations. Of course, such retaliation, done vigorously, might be the catalyst for the very evil of disunion that the Articles were designed to prevent.

From a certain perspective, the Congress was an administrative body over the operative political units, the states, at least as far as matters internal to this confederation. This was consistent with the “dominion theory” of the British Empire that Dickinson and others had envisioned for the colonies before the Revolution, where the colonies governed themselves internally and were administered by a British governor-general who represented the interests of the empire. Thus, Congress could not tax directly. Instead, it would direct requisitions apportioned on the basis of the assessed value of occupied land in each state, which the states were obligated to collect. With funds often uncollected and states frequently in arrears, Congress had to resort to borrowing funds from foreign sources and emitting “bills of credit,” that is, paper money unbacked by gold or silver. Those issues, the Continental currency, quickly depreciated. “Not worth a continental” became a phrase synonymous with useless. Neither could Congress regulate commerce directly, although it could oversee disputes among states over commerce and other issues, by providing a forum to resolve them. Article IX provided a complex procedure for the selection of a court to resolve such “disputes and differences … between two or more states concerning … any cause whatever.”

It was easy for critics, then and more recently, to dismiss the Articles as weak and not a true constitution of an independent sovereign. The British foreign secretary Charles James Fox sarcastically advised John Adams, then American minister to London, when the latter sought a commercial treaty with Britain after independence, that ambassadors from the states needed to be present, since the Congress would not be able to enforce its terms. Yet, a union it was in many critical ways, as was recognized in the preamble to its successor: “We, the People of the United States, in Order to form a more perfect Union, ….” The indissolubility of this union was attested to by affirmations of its perpetuity. The Articles gave the Congress power over crucial matters of war and peace, foreign relations, control of the military, coinage, and trade and other relations with the Indians. Indeed, the states were specifically prohibited from engaging in war, conducting foreign relations, or maintaining naval or regular peacetime land forces, without consent from Congress. As to congressional consent, exceptions were made if the state was actually invaded by enemies or had received information that “some nation of Indians” was preparing to invade before Congress could address the matter. A state could also fit out vessels of war, if “such state be infested by pirates,” a matter that seems almost comical to us, but was of serious concern to Americans into the early 19th century.

The controversial matter of who controlled the western lands, Congress or the states, was not addressed. Nor did Congress have any power to force states to end their conflicting claims over such lands, except to provide a forum to settle disputes if a state requested that. Instead, Congress in 1779 and 1780 passed resolutions to urge the states to turn over such disputed land claims to Congress, which most eventually did. This very issue of conflicting territorial claims caused Maryland to refuse its assent to the Articles until 1781.

Yet, it was precisely on this issue of control over the unsettled lands where Congress unexpectedly showed it could act decisively. Despite lacking clear authority to do so, the Confederation Congress passed the Land Ordinance of 1785 and the even more important Northwest Ordinance of 1787. Those statutes opened up the western lands for organized settlement, a matter that had been dear to Americans since the British Proclamation of 1763 effectively put the Trans-Allegheny west off-limits to White settlers. Ironically, during the later debate on the Constitution of 1787, James Madison, in Federalist No. 38, theatrically used these acts of strength by Congress to point to the dangers of unchecked unenumerated powers. This was quite in contrast to the usual portrait of the Confederation’s weakness that Madison and others painted. To be fair, Madison conceded that Congress could not have done otherwise.

Significant also were the bonds of interstate unity that the Articles established. Article IV provided, “The better to secure and perpetuate mutual friendship and intercourse among the people of the different states in this union, the free inhabitants of each state shall be entitled to all privileges and immunities of free citizens in the several states; ….” These rights would include free travel and the ability to engage in trade and commerce. As well, that Article required that fugitives be turned over to the authorities of the states from which they had fled, and that each state give full faith and credit to the decisions of the courts in other states. These same three clauses were brought into Article IV of the Constitution of 1787.

The Articles were doomed by their perceived structural weakness. Numerous attempts to reform them had foundered on the shoals of the required unanimity of the states for amendments. Another factor that likely caused the Philadelphia Convention of 1787 to abandon its quest merely to amend the Articles were their complexity and prolixity, with grants of power followed by exceptions, restrictions, and reservations set out in excruciating detail. The Articles’ weak form of federalism was replaced by the stronger form of the Constitution of 1787, stronger in the sense that the latter represented a more clearly distinct entity of the United States, with its republican legitimacy derived from the same source as the component states, that is, the people.

All of that acknowledged, the victor writes the history. Defenders of the Articles at the time correctly pointed out that this early constitution, drafted under intense pressure at a critical time in the country’s history and intended to deal foremost with the exigencies of war, had been remarkably successful. It was, after all, under this maligned plan that the Congress had formed commercial and military alliances, raised and disciplined a military force, and administered a huge territory, all while defeating a preeminent military and naval power to gain independence.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

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The adoption of the Declaration of Independence of “the thirteen united States of America” on July 4, 1776, formally ended a process that had been set in motion almost as soon as colonies were established in what became British North America. The early settlers, once separated physically from the British Isles by an immense ocean, in due course began to separate themselves politically, as well. Barely a decade after Jamestown was founded, the Virginia Company in 1619 acceded to the demands of the residents to form a local assembly, the House of Burgesses, which, together with a governor and council, would oversee local affairs. This arrangement eventually was recognized by the crown after the colony passed from the insolvent Virginia Company to become part of the royal domain. This structure then became the model of colonial government followed in all other colonies.

As the number and size of the colonies grew, the Crown sought to increase its control and draw them closer to England. However, those efforts were sporadic and of limited success during most of the 17th century, due to the isolation and the economic and political insignificance of the colonies, the power struggles between the King and Parliament, and the constitutional chaos caused in turn by the English Civil War, the Cromwell Protectorate, the Restoration, and the Glorious Revolution. There was, then, a period of benign neglect under which the colonies controlled their own affairs independent of British interference, save the inevitable local tussles between the assemblies and the royal governors jockeying for political position. Still, the increasingly imperial objectives of the British government and expansion of British control over disconnected territories eventually convinced the British of the need for more centralized policy.

This change was reflected in North America by a process of subordinating the earlier charter- or covenant-based colonial governments to more direct royal control, one example being the consolidation in the 1680s of the New England colonies, plus New York and New Jersey into the Dominion of New England. While the Dominion itself was short-lived, and some of the old colonies regained charters after the Glorious Revolution, their new governments were much more tightly under the King’s influence. Governors would be appointed by the King, laws passed by local assemblies had to be reviewed and approved by royal officials such as the Board of Trade, and trade restrictions under the Navigation Acts and related laws were enforced by British customs officials stationed in the colonies. William Penn and the other proprietors retained their possessions and claims, but the King, frequently allying himself with anti-proprietor sentiments among the settlers, forced them to make political concessions that benefited the Crown.

Trade and general imperial policy were dictated by Parliament and administered from London. Still, the colonial assemblies retained significant local control and, particularly in the decades between 1720 and 1760, took charge of colonial finance through taxation and appropriations and appointment of finance officers to administer the expenditure of funds. While direction of Indian policy, local defense, and intercolonial relations belonged to the Crown, in fact even these matters were left largely to local governments. The Crown’s interests were represented in the person of the royal governor. However strong the political position of those governors was in theory, in practice they were quite dependent on the colonial assemblies for financial support. The overall division of political authority between the colonial governments and the British government in London was not unlike the federal structure that the Americans adopted to define the state-nation relationship after independence.

A critical change occurred with the vast expansion of British control over North America and other possessions in the wake of the Seven Years’ War (the French and Indian War) in 1763. Britain was heavily indebted from the war, and its citizens labored under significant taxes. Thus, the government saw the lightly-taxed colonials as the obvious source of revenue to contribute to the cost of stationing a projected 10,000 troops to defend North America from hostilities from Indian tribes and from French or Spanish forces. Parliament’s actions to impose taxes and, after colonial protests, abandon those taxes, only to enact new ones, both emboldened and infuriated the Americans. This friction led to increasingly vigorous protests by various local and provincial entities and to “congresses” of the colonies that drew them into closer union a decade before the formal break. Colonials organized as the Sons of Liberty and similar grass-roots radicals destroyed British property and attacked royal officials, sometimes in brutal fashion. At the same time, British tactics against the Americans became more repressive, in ways economic, political, and, ultimately, military. That cycle began to feed on itself in a chain reaction that, by the early 1770s, was destined to lead to a break.

The progression from the protests of the Stamp Act Congress in 1765, to the Declaration of Resolves of the First Continental Congress and subsequent formation of the Continental Association to administer a collective boycott against importation of British goods in 1774, to the Declaration of the Causes and Necessity of Taking Up Arms issued by the Second Continental Congress in 1775, to the Declaration of Independence of 1776, shows a gradual but pronounced evolution of militancy in the Americans’ position. Protestations of loyalty to King and country and disavowal of a goal of independence were still common, but were accompanied by increasingly urgent promises of resistance to “unconstitutional” Parliamentary acts. American political leaders and polemicists advocated a theory of empire in which the local assemblies, along with a general governing body of the united colonies, would control internal affairs and taxation, subject only to the King’s assent. This “dominion theory” significantly reduced the role of Parliament, which would be limited to control of external commerce and foreign affairs. It was analogous to the status of Scotland within the realm, but was based on the constitutional argument that the colonies were in the King’s dominion, having emerged as crown colonies from the embryonic status of their founding as covenant, corporate, or proprietary colonies. Had the British government embraced such a constitutional change, as Edmund Burke and some other members urged Parliament to do, the resulting “British Commonwealth” status likely would have delayed independence until the next century, at least.

In early 1776, sentiment among Americans shifted decisively in the direction of the radicals. Continued military hostilities, the raising of American troops, the final organization of functioning governments at all levels, the realization that the British viewed them as a hostile population reflected in the withdrawal of British protection by the Prohibitory Act of 1775, and Thomas Paine’s short polemic Common Sense opened the eyes of a critical mass of Americans. They were independent already, in everything but name and military reality. Achieving those final steps now became a pressing, yet difficult, task.

The Declaration was the work of a committee composed of Thomas Jefferson, John Adams, Benjamin Franklin, Roger Sherman, and Robert Livingston. They were appointed on June 11, 1776, in response to a resolution introduced four days earlier by Richard Henry Lee acting on instruction of the state of Virginia. Jefferson prepared the first draft, while Franklin and the others edited that effort to alter or remove some of the more inflammatory and domestically divisive language, especially regarding slavery. They completed their work by June 28, and presented it to Congress. On July 2, Congress debated Lee’s resolution on independence. The result was no foregone conclusion. Pennsylvania’s John Dickinson and Robert Morris, both of whom had long urged caution and conciliation, agreed to stay away so that the Pennsylvania delegation could vote for independence. The Delaware delegation was deadlocked until Cesar Rodney made a late appearance in favor. The South Carolina delegation, representing the tidewater-based political minority that controlled the state, was persuaded to agree. The New York delegates abstained until the end. Two days later, the Declaration itself was adopted. It was proclaimed publicly on July 8 and signed on July 19.

Jefferson claimed that he did not rely on any book or pamphlet to write the Declaration. Yet the bill of particulars in the Declaration that accused King George of numerous perfidies is taken wholesale, and frequently verbatim, from Chapter II of the Virginia Declaration of Rights and Constitution proposed by a convention on May 6, 1776, and approved in two phases in June. Moreover, Jefferson’s Declaration clearly exposes its roots in John Locke’s Second Treatise of Government. It would be astounding if Jefferson, a Virginian deeply involved in the state’s affairs, was unaware of such a momentous event or was oblivious to the influence of Locke on the many debates and publications of his contemporaries.

Three fundamental ideas coalesced in the Declaration: 17th-century social compact and consent of the governed as the ethical basis of the state, a right of revolution if the government violates the powers it holds in trust for the people, and classic natural law/natural rights as the divinely-ordained origin of rights inherent in all humans. The fusion of these different strands of political philosophy showed the progression of ideas that had matured over the preceding decade from the at-times simplistic slogans about the ancient rights of Englishmen rooted in the king’s concessions to the nobles in Magna Charta and from the incendiary proclamations by the Sons of Liberty and other provocateurs.

The structure was that of a legal brief. The King was in the dock as an accused usurper, and he and the jury of mankind were about to hear the charges and the proposed remedy. At the heart of the case against the King were some fundamental propositions, “self-evident truths”: Mankind is created equal; certain rights are “unalienable” and come from God, not some earthly king or parliament; governments “derive their just powers from the consent of the governed” and exist to secure those rights; and, borrowing heavily from Locke, there exists a residual recourse to revolution against a “long train of abuses and usurpations.”

Once the legal basis of the complaint was set, supporting facts were needed. Jefferson’s list is emotional and provocative. As with any legal brief, it is also far from impartial or nuanced. Some of the nearly thirty accusations seem rather quaint and technical for a “tyrant,” such as having required legislative bodies to sit “at places unusual, uncomfortable, and distant from the depository of their public Records.” Others do not strike us as harsh under current circumstances as they might have been at the time, such as King George having “endeavoured to prevent the population of these States; for that purposed obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither.” At least one other, describing the warfare by “the merciless Indian Savages,” sounds politically incorrect to the more sensitive among our modern ears.

The vituperative tone of these accusations is striking and results in a gross caricature of the monarch. But this was a critical part of the Declaration. Having brushed aside through prior proclamations and resolves Parliament’s legitimacy to control their affairs, the Americans needed to do likewise to the King’s authority. King George was young, energetic, and politically involved, with a handsome family, and generally popular with the British people. Many Americans, too, had favored him based on their opinion, right or wrong, that he had been responsible for Parliament repealing various unpopular laws, such as the Stamp Act. As well, as Hamilton remarked later at the constitutional convention in Philadelphia, the King was bound up in his person with the Nation, so it was emotionally difficult for many people to sever that common identity between themselves and the monarch. To “dissolve the political bands” finally, it would no longer suffice to blame various lords and ministers for the situation; the King himself must be made the villain.

Before the ultimate and extraordinary remedy of independence could be justified, it must be shown, of course, that more ordinary relief had proved unavailing. Jefferson mentions numerous unsuccessful warnings, explanations, and appeals to the British government and “our British brethren.” Those having proved ineffective, only one path remained forward: “We, therefore, the Representatives of the united States of America … declare, That these United Colonies are … Independent States.”

The Declaration was a manifesto for change, not a plan of government. That second development, moving from a revolutionary to a constitutional system, would have to await the adoption of the Articles of Confederation and, eventually, the Constitution of 1787. True, since the early days of the Republic, various advocates of causes such as the abolition of slavery have held up the Declaration’s principles of liberty and equality as infusing the “spirit” of the Constitution. But this has always been more a projection by those advocates of their own fervent wishes than a measure of what most Americans in 1776 actually believed.

Being “created equal” was a political idea in that there would be no hereditary monarchy or aristocracy in a republic based on consent. It was also a religious idea, in that all were equal before God. It did not mean, however, that people were equal “in their possessions, their opinions, and their passions,” as James Madison would mockingly write in The Federalist No. 10. He and Jefferson, along with most others, were convinced that, if people were left to their own devices, the natural inequality among mankind would sort things out socially, politically, and economically. Even less did such formal equality call for affirmative action by government to cure inequality of condition. It was, after all, as Madison explained in that same essay, “a rage for paper money, for an abolition of debts, for an equal division of property” that were the “improper and wicked project[s]” against which the councils of government must be secured.

In the specific context of slavery, the Declaration trod carefully. Jefferson’s criticism of the British negation of colonial anti-slave trade laws in his original draft of the Declaration was quickly excised by cooler heads who did not want to stir that pot, especially since almost all of the states permitted slavery. Jefferson’s later lamentation regarding slavery that “I tremble for my country when I reflect that God is just” was a distinct minority view. Many Americans had escaped grinding poverty in Europe, had served years of indentured servitude, or lived under dangerous and hardscrabble frontier conditions. As a result, as the historian Forrest McDonald observed, few of them trembled with Jefferson. It remained for later generations and the crucible of the Civil War and Reconstruction to realize the promise of equality that the Declaration held for the opponents of slavery.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

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Guest Essayist: Joerg Knipprath

“In the name of God, amen. We whose names are under written … [h]aving undertaken for the Glory of God, and advancement of the christian [sic] faith, and the honour of our King and country, a voyage to plant the first colony in the northern parts of Virginia; do by these presents solemnly and mutually, in the presence of God and one another, covenant and combine ourselves 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 meet and convenient for the general good of the colony ….”

Thus pledged 41 men on board the ship Mayflower that day, November 11, 1620, having survived a rough 64-day sea voyage, and facing an even more grueling winter and a “great sickness” like what had ravaged the Jamestown colony in Virginia. These Pilgrim Fathers had sailed to the New World with their families from exile in Leyden, Holland, with a stop in England to secure consent from the Virginia Company to settle on the latter’s territory. They were delayed by various exigencies from leaving England until the fall of 1620. The patent from the Company permitted the Pilgrims to establish a “plantation” near the mouth of today’s Hudson River, at the northern boundary of the Company’s own grant.

For whatever reason, either a major storm, as the Pilgrims claimed, or intent to avoid the reach of English creditors’ claims on indentured servants, as some historians allege, the ship ended up at Cape Cod on November 9. Bad weather and the precarious state of the passengers made further travel chancy, and the Pilgrim leaders decided to find a nearby place for settlement. Cape Cod was deemed unsuitable for human habitation. Instead, the Pilgrims disembarked on December 16 at Plymouth, so named earlier by Captain John Smith of the Virginia Company during one of his explorations. Since they were now a couple of hundred miles outside the Virginia Company’s territory, their patent was worthless. It became necessary to establish a new binding basis for government of their society.

The result was the Mayflower Compact, infused with a remarkable confluence of religious and political theory. The Pilgrims, like the Puritans who settled Massachusetts Bay in 1630, were dissenters from the Church of England. The former opted to separate themselves from what they perceived as the corruption of the Church of England, whereas the less radical nonconformists, the Puritans, sought to reform that church from within. Both groups, however, found the political and religious climate under the Stuart monarchs to be unfriendly to dissenters.

As common historical understanding has it, both groups sought to escape to the New World to practice their religion freely. However, that meant their religion. They set out to establish their vision of the City of God in an earthly commonwealth. As the Compact stated, their move was “undertaken for the Glory of God, and advancement of the christian faith.” Neither group set out to establish a classically liberal secular society tolerant of diverse faiths or even a commonwealth akin to the Dutch Republic, with an established church, yet accepting of religious dissent. The corrosive effect of such dissent would have been particularly dangerous to the survival of the small Pilgrim community clinging precariously to their isolated new home in Plymouth. Indeed, once the colony became established and became focused on commerce and trade, more devout members disturbed by this turn to the material left to form new communities of believers.

The religious orientation of the Mayflower Compact grew out of the Pilgrims’ Calvinist faith. In contrast to the Roman Catholic Church and its successor establishment in the Church of England, Calvinists rejected centralized authority with its dogmas and traditions as having erected impious barriers and distractions to a personal relationship with God. Instead, the congregation of like-minded believers gathered in community. It was a community founded on consent of the participants and given meaning by their shared religious belief. Those who rejected significant aspects of that belief would leave (or be shunned).

In Europe, those religious communities operated within–and chafed under–hostile existing political orders, most of which still were organized on principles other than consent of the participants. Once transplanted across the Atlantic Ocean, the Pilgrims were free of such restraints and could organize their religious life together with their political commonwealth within the Calvinist congregational framework. Their brethren, the Puritans of Massachusetts Bay, established their colony on the same type of religious foundation, as did a number of later communities that spread from the original settlements. The successor to the Puritans and Pilgrims was the Congregational Church, organized along those communitarian lines based on consent. That church became the de facto established church of Massachusetts Bay Colony and the state of Massachusetts under a system of state tax support, a practice that survived until 1833.

On the political side, the Mayflower Compact was one of three types of constitutions among the colonies in British North America. The others were the joint stock company or corporation model of the Virginia Company and the Massachusetts Bay Company, and the proprietary grant model, the dominant 17th-century form used for the remaining colonies, such as the grant to Lord Calvert for Maryland and William Penn for Pennsylvania. Of the three, the Mayflower Compact most profoundly and explicitly rested on the consent of the governed. It provided the model for other early American “constitutions” in New England, such as the 1636 compact among Roger Williams and his followers in founding Providence, Rhode Island, the compacts among settlers that similarly established Newport and Portsmouth in Rhode Island and the New Haven Colony in 1639, and, most significantly, the Fundamental Orders of Connecticut. The Orders, in 1639, united the Connecticut River Valley towns of Hartford, Windsor, and Wethersfield and provided a formal frame of government. Like the Mayflower Compact, the Orders rested on the consent of the people to join in community, but in their structure they closely resembled the Massachusetts Bay Company agreement.

The political analogue to the congregational organization of the Calvinist denominations was the “social compact” theory, an ethical basis for the state that also rested on the consent of the governed. Classical Greek theory had held that the polis represented a progression of human association beyond family and clan and evolved as the consummate means conducive to human flourishing. In its medieval scholastic version epitomized by the writings of Thomas Aquinas, the state was ordained by God to provide for the welfare and happiness of its people within an ordered universe governed by God’s law. By contrast, the social compact theory rested on the will of the individuals that came together to found the commonwealth. It was a rejection of the static universal political (and religious) order that had governed Western Christendom and in which one’s status and privileges depended on one’s place in that order. After the Reformation, Protestant sects had many, sometimes conflicting, assumptions about the nature and the specifics of the relationship between the believer and God. In similar manner, social compact theory was not a unified doctrine, but varied widely in its details of the relationship between the individual and the state, depending on the particular proponent.

The two social compact theorists with the greatest influence on Americans of the Revolutionary Era were Thomas Hobbes and John Locke, with the latter’s postulates the more evident among American essayists and political leaders. Locke’s reflections on religion and politics were greatly influenced by the Puritanism of his upbringing. Although the governments established under the various state constitutions, as well as those created through the Articles of Confederation and the Constitution of 1787, more closely resembled the corporate structures of the colonial joint stock company arrangements, they were formed through the direct or indirect consent of the governed. The Constitution of 1787, for example, very conspicuously required that no state would become a member of the broader “united” community without its consent. In turn, such consent had to be obtained through the most “explicit and authentic act” of the state’s people practicable under the circumstances, that is, through a state convention.

To whatever concrete extent the Mayflower Compact’s foundation on consent may have found its way into the organizing of American governments during the latter part of the 18th century, it is the Declaration of Independence that most clearly incorporates the compact’s essence. The influence of Locke and his expositors on Thomas Jefferson’s text has been analyzed long and frequently. But it is worth noting some of the language itself. The Declaration asserted that Americans were no longer connected in any bond (that is, any obligation) to the people of Britain, just as the Pilgrims, having sailed to a wilderness not under the control of the Virginia Company, believed that they were not bound by the obligations of the patent they had received. The Americans would establish a government based on the “consent of the governed,” “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,” just as the signatories of the Mayflower Compact had pledged.

So it came about that a brief pledge, signed by 41 men aboard a cramped vessel in 1620, “with no friends to welcome them, no inns to entertain or refresh them, no houses, or much less towns to repair unto to seek for succour,” with “a mighty ocean which they had passed…and now separate[d] them from all the civil parts of the world” behind them, and with “a hideous and desolate wilderness, full of wilde beasts and wilde men” in front of them, deeply affected the creation of the revolutionary political commonwealth founded in the New World a century and a half later.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

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Unfortunately, the Court cast aside Justice Frankfurter’s warning that judges should stay out of the apportionment controversy and let the democratic process resolve it. Where wise men feared to tread, the justices foolishly rushed in. In 1962, in Baker v. Carr, they decided that such issues were “justiciable,” after all. Two years later, in Reynolds v. Sims, they decided that the Equal Protection Clause of the Fourteenth Amendment supplied the solution. All legislative districts, whether congressional, state legislative, or local, had to be equal in population to be constitutional. The history of the Equal Protection Clause contains no evidence that the Congress or the states intended it to address this issue. Indeed, section two of that amendment addresses a very specific instance of representation, that is, a state’s representation would be reduced in the House of Representatives by the proportion that it denied its adult male citizens the right to vote on racial grounds. The framers of the amendment were fully aware of political representation, yet did not consider the Equal Protection Clause itself applicable broadly to representation or voting.

The Court cast the operative principle as “one man, one vote.” The cases most assuredly had nothing to do with voting. No one was denied the right to vote. Nor did one person’s vote count differently than that of the next person in line. What it came down to was that, in districts with unequal population, a voter in a larger district allegedly had his vote diluted in the legislature in comparison to a voter in a smaller district, because the former’s representative represented more residents than the latter’s. The Court ignored the fact that there was no logical connection between who could or could not vote and any particular system of representation.

Other difficulties with the Court’s opinion were that districts with equal numbers of residents might not have equal numbers of voters. In Evenwell v. Abbott, in 2016, the Court ruled that population equality is based on residents, not voters. Of course, this will result in vote dilution for those who vote in districts with many voters, compared to those who vote in equally-sized districts with many non-voters, such as children, prisoners, and aliens, legal or otherwise. Moreover, populations change over ten years, so any attempt to adhere slavishly to population equality is doomed to immediate failure, as districts change in relative size.

Why, then, did the Court decide to tilt at these constitutional windmills? The catalyst was the decades-long failure of certain mainly Southern states to reapportion their districts in violation of their own state constitutional requirements. This produced often significant discrepancies in population between small rural districts and populous urban areas, a trend exacerbated by the 20th century’s technology-driven trend of urbanization. The Court viewed recourse to state constitutional conventions as too cumbersome. Since the delegates to those conventions were likely to be elected from those same malapportioned districts, they, like the legislatures, could not be counted on to challenge the existing system in a meaningful manner. Congressional interference with state districting would tread on thin constitutional ice and, in any case, was unlikely in light of the malapportionment of many congressional districts. The justices are drawn from a legal elite that shares many common outlooks, whatever their personal partisan affiliation. The common wisdom for that elite was that the existing systems exaggerated the influence of rural, socially and politically “unenlightened” residents and politicians, and constrained the economically, racially, and socially more progressive urban dwellers.

If the goal was to make the political environment reflect imagined urban progressivism, the results definitely have been inconclusive. The reapportionment cases, with their emphasis on population equality over everything, did break down the power of rural and small-town politicians and interests. In the South, they helped loosen the stranglehold of the Democratic Party that had produced the “Solid South” for over a century. But political power did not flow from the rural Democrats to the urban Democrats, as much as it did from the rural Democrats to the suburban Republicans. In non-Southern states, power similarly tended to flow to the expanding suburban areas, many of which did not share the mindset of the urban elites.

More significant in the long run was the “law of unintended consequences” manifesting itself in the guise of naked partisan gerrymandering. Going back to the country’s founding, most states apportioned one of their legislative chambers primarily on the basis of population and the other at least partially on other factors, such as county lines or city boundaries, much as the old Massachusetts and Virginia constitutions had done. In many states, the latter had been used for the lower, more numerous house. In contrast, more recent apportionment plans, as in California and Colorado, had followed the “federal model” and used population for the more numerous house and allowed political boundaries as a significant factor to apportion the less numerous upper legislative chamber.

The Court rejected both systems in Reynolds. As to the “federal model,” the Court argued that the Constitution was a compromise among sovereign states. However, the states’ political sovereignty did not extend to deciding how to govern themselves internally, because the cities and counties were not themselves sovereign actors, but mere creatures of the states. The same day as Reynolds, in Lucas v. 44th General Assembly of Colorado, the Court used the same reasoning to strike down a recent reapportionment of the Colorado legislature, approved by a significant majority of voters in every legislative district in the state. The Court’s objection was that the political majority might elect the governor and the lower house of the legislature, but it would take two-thirds of the population in the most populous districts to elect a majority of the upper house. The purpose of the Colorado system was to give some political influence to the residents in the large areas of Colorado not within fifty miles of the intersection of I-25 and I-70 and the city of Denver. The Court was unmoved by the fact that Colorado’s urban and suburban residents had themselves voted in favor of the plan, and that the voters had also overwhelmingly rejected a proposal that incorporated the system the Court eventually imposed. If even one voter’s vote was diluted, the Court declared, a constitutional violation had occurred.

In subsequent decisions, the Court softened its numerical rigidity somewhat. For congressional districts, under Karcher v. Dagett (1983), any deviation from absolute equality will be strictly scrutinized. For internal state legislative districts and for local districts, however, the Court decided in Mahan v. Howell (1973) that only “substantial equality” is needed, with deviations up to 20% from an ideal equality among districts being acceptable.

But the damage is done. By severely curtailing the ability of states to consider factors other than population, the Court removed the constraints on the one apportionment tool that coexists comfortably with population equality, the partisan gerrymander. When apportionment had to occur within set political boundaries, partisan considerations were blunted. Moreover, population movements and new political issues could change the partisan composition of a district. Politicians more likely had to moderate ideological predispositions and be less rigidly partisan. When preexisting district lines are meaningless and the quest for numbers is paramount, districts are drawn to maximize partisan advantage. Using computerized data and statistical formulae, apportionment experts create “safe” districts to maximize the majority party’s advantage well beyond their share of voter registration. For example, in California, Democrats have 46 congressional seats, Republicans 7, even though the Republican share of the vote in California is around 38%. Based on percentages, the Republicans should have had an additional 13 seats. These safe seats are won during primaries by the most militant candidate appealing to the party’s ideologically committed base. The winners then become difficult to dislodge and serve many terms, thereby putting them in legislative leadership roles.

Many observers have mourned the increased partisanship and hardening of ideological lines facilitated at least in part by the representational paradigm of population equality. At the state level, longevity of service is restrained by term limits, but ideological militancy is not. A final chapter may be emerging in the Supreme Court’s apportionment experiment. So far, the Court has avoided tackling partisan gerrymandering. However, the justices served notice in Davis v. Bandemer (1986) that such gerrymandering might violate the Constitution if it resulted in systematic and continuous exclusion of a party from political power. The justices could not agree on a specific standard to determine whether such an injury had occurred. In Vieth v. Jubelirer (2004), a plurality led by Justice Antonin Scalia found such cases to be non-justiciable, precisely because courts had not been able to discover any constitutional standard to apply in political gerrymandering claims. The intensely and inherently political nature of partisan gerrymandering and the many nuanced shapes it can take makes this a very difficult area for judicial resolution. However, the recent case of Gill v. Whitford (2018) and current litigation involving partisan gerrymandering in Maryland suggest that the judiciary’s struggle to extricate itself from the political issues that infuse partisan gerrymandering continues.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

 

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While Congress determines each state’s allotted number of representatives, each state draws the lines of its congressional districts. A few states early in their history experimented with at-large elections to maximize their clout in the House, but Congress quickly passed a law to require election from single-member districts. That method reflects the American constitutional tradition, dating back to colonial times, of tying representation to local political units and geographical areas, with their inhabitants voting for one of their own. Although the Constitution does not explicitly require members of the House to live in the districts that they represent (hence, the possibility of at-large elections), residence in the district is a practical requirement. Jon Ossoff, a Democratic candidate in a 2017 special election for a congressional seat in Georgia was found not to reside in that district, a fact that was publicized by his opponent. Despite massive out-of-state financial support, Ossoff lost, and his failure to live in the district likely contributed to that loss.

States also apportion their state legislative districts and determine how local electoral districts are apportioned. State constitutions typically provide for regular reapportionment and fix who–legislatures, courts, commissions–is to conduct that reapportionment. Local districts, such as county commissioners, school boards, and junior college districts, are included in this process, even if they perform multiple functions, as long as one of those functions is legislative and the body is elected by districts. The Supreme Court has recognized one exclusion, in Ball v. James (1981), for certain special governmental units that have only limited legislative powers, such as water districts. For those, voting and representation can be apportioned on the basis of amount of water rights or use, rather than population. The distinction between special and general governmental bodies is none-too-obvious, however.

In the 1960s, another wave of discontent arose over voting and representation, originating in litigation over racial discrimination. For many years, the Supreme Court had stayed out of the “political thicket” of legislative apportionment about which Justice Felix Frankfurter had warned in Colegrove v. Green in 1946. Constitutional challenges to legislative apportionment were dismissed as “non-justiciable political questions,” meaning that they were not suitable for resolution by courts. The reason was republicanism. Voting and representation are quintessential expressions of self-government, determined by consent of the governed through direct participation in voting or through representative bodies, such as constitutional conventions or, at least, legislatures. Unelected judicial mandarins accountable only to their conscience imposing a system of government on society fundamentally undercuts the modern consensual basis of the legitimacy of the state.

Another problem was that republicanism requires neither some particular system of voting, nor a specific scheme of representation. Hence, voting qualifications are addressed in clear constitutional provisions. Changes to voting qualifications, at least at the level of the U.S. Constitution, with a few controversial exceptions, have been produced through explicit and formal amendments. Matters of representation, as well, are addressed in express manner in a few rather terse and specific provisions.

Beyond those basics, the Constitution has left such political issues to the political process, particularly in the several states. Especially regarding representation, the Constitution only requires that the states have republican forms of government. We know what a republican form is not, namely, hereditary monarchy or aristocracy. But we do not know what it is. Must representation be based on districts? If so, must these be single-member? Must representatives be elected by a majority, or does a plurality suffice? At the state or local level, must it be based on residents, adult residents, citizens, registered voters, actual voters, or something else? Must all districts be drawn on the basis of population equality only? May the system give recognition or accommodation to political subdivisions; cohesive racial, ethnic, religious, or cultural communities; organized societal subgroups, such as labor unions, business or professional associations, or military veterans; or wealthier areas that contribute more to the maintenance of the political community through their taxes? Most of these variants have occurred in the constitutions of the several states or in current or former republican systems around the world.

Finally, judges approach such issues through the language, methodology, and epistemology of the law. Lawsuits produce winners and losers and deal in absolutes. In constitutional litigation, there is the additional complication that the Constitution confers a certain moral legitimacy on the winner and concurrent illegitimacy on the loser. These institutional factors tend to produce arguments and results that lurch towards conceptual absolutes and hard attitudes rather than compromise, flexibility, and nuance. Representation often requires the balancing of numerous competing interests, particularly in a political system that, through its Madisonian roots, is consciously designed to pit temporary and changing coalitions of diverse self-interested factions against each other.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

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In a republic, two distinct principles are essential to political influence, voting and representation. Although there is no logical connection between any particular systems of voting and representation, there is a practical overlap. It is not astonishing, therefore, that allocation of voting and representation not only have been addressed in all republican constitutions, ancient and modern, but that conflicts over these issues have flared up in American history. “No taxation without representation” was one potent Revolutionary War-era slogan–and continues to be an (avoidable) obsession with some residents of the District of Columbia and with its municipal government. That slogan arose out of fundamental differences between English and American conceptions of voting and representation that had evolved from the experiences of living under distinctive physical and social conditions.

Voting qualifications and representation have been major controversies in several periods of American history. The Philadelphia Convention in 1787 was deadlocked several weeks over the representational structure of the proposed Congress and nearly broke up over the matter before Roger Sherman and Oliver Ellsworth of Connecticut presented the current compromise system. The constitutional upheaval of the second quarter of the 19th century during the “Age of Jackson” that produced numerous state conventions was triggered by popular restiveness over the outdated systems of voting and representation. One particularly tragic-comic event during that time was the Dorr War, a “civil war” in Rhode Island in 1841/2. It was precipitated by an attempt to reform the voting qualifications and legislative apportionment in place since the old colony’s royal charter had been made, with a few qualifications, the new state’s constitution at independence. Once more, in the 1960s, voting and representation became major constitutional issues. This time the matter was addressed through litigation in courts, rather less democratic than constitutional conventions and less dramatic than civil wars, no matter how small.

As early as 1639, the Fundamental Orders of Connecticut fixed voting for the General Court in all free adult male inhabitants of the towns, if they had taken the Oath of Fidelity. The Orders also fixed representation in that body based roughly on the population of the constituent towns. Other colonial charters followed suit. After independence, the state constitutions addressed these issues, sometimes in considerable detail. For example, the Virginia Constitution of 1776 simply provided in a fraction of one sentence that voters must be free adult males with sufficient common interest with, and attachment to, their community, presumably based on residency and property ownership. The system of representation, on the other hand, took up two complete sections, with representation in the House of Delegates primarily on the basis of counties and cities, and in the Senate, on the basis of larger districts composed of various counties.

The Massachusetts Constitution of 1780 similarly allowed voting for its two legislative chambers by adult male inhabitants with sufficient estates who lived in their respective electoral units. The forty senators would be elected from districts that were apportioned based on the proportion of taxes that they paid. The number of districts, their lines, and the number of senators from each would be determined periodically by the legislature. The state’s House of Representatives would be apportioned on the basis of incorporated towns, with some adjustment for population size among the towns. It was the Massachusetts system of senatorial apportionment by the legislature that made a lasting contribution to the political lexicon. In 1812, the legislature redrew the Senate districts to favor the Jeffersonian Republicans. One district, in Essex County, had a particularly convoluted shape, which an editorial in the Boston Gazette compared to a salamander and dubbed a “Gerry-mander.” The governor, Elbridge Gerry, had signed the legislation despite personal misgivings about its hyper-partisanship. Partisan apportionment remains a common tactic today, and districts not infrequently have similarly odd shapes. One refreshingly honest practitioner, former California Democratic Congressman Philip Burton, in 1981 called one such creation his “contribution to modern art.” While the pronunciation has changed slightly, to a soft “g,” the “gerrymander” has endured.

The U.S. Constitution provides for apportionment of representation among the states. In the Senate, representation is based on the political equality of all states in their corporate capacity, in recognition of their residual sovereignty. In the House of Representatives, it is based on a combination of population and political identity, in that more populous states receive more representatives, but each state has at least one, regardless of population. The Constitution initially provided for one representative for each 30,000 residents, which number itself had been controversial. The convention had settled on one member for each 40,000, but George Washington thought that too high. It was the only time that Washington, the presiding officer of the convention, spoke on a substantive issue before the convention. His proposal was quickly adopted. Beyond that, some speakers at the Philadelphia convention and the state ratifying conventions spoke broadly about the desirability of population equality in drawing districts, and the need to avoid the “rotten boroughs” of England, that is, districts that no longer had many residents, yet still elected members of Parliament. State constitutions also endorsed equality in representation. As, the Virginia and Massachusetts constitutions showed, however, their concept of equality was far more nuanced than the numerical rigidity that the Supreme Court later discovered in the Constitution.

While population growth and admission of new states initially resulted simply in increasing the number of representatives, in 1929 Congress capped the size of the House at 435 voting members, to prevent their number from becoming too unwieldy to conduct business efficiently and to deal with a lack of physical space in the chamber. As a consequence, after every decennial census, unequal population increases in the various states now cause some states to gain representatives, and others to lose them. This can also produce significant population disparities among districts in different states, depending on the formula Congress uses. Under the current formula, the largest district, in Montana, has nearly twice the population of the smallest district, in neighboring Wyoming.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

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The next significant impact on the development of the California constitution came during the Progressive Era of the early 20th century. The Lincoln-Roosevelt Republican movement had seized control, first, of the Republican Party and, then, in the 1910 elections, of the state government. The movement was an upper-middle class, college-educated, young, elitist, technocratic reform movement centered in the legal profession, the press, and, to a lesser extent, the independent entrepreneurial class. These reformers had been excluded from the traditional retail politics of the urban machines with their roots in the working classes, strong partisan identity, and “spoils system” of political patronage. They professed to believe in the people and democracy, but a people led by the right kind of leader whose programs would use government to improve the lot of the masses. The people, in turn, would recognize the wisdom of those programs and voice their approval in the voting booth.

In January, 1911, the Progressives had full control of the legislature and had in the governorship perhaps the most popular politician California has produced, Hiram Johnson. That year, a special election was held to vote on, among other things, 23 measures that required amendment of the state constitution were proposed. All but one were approved by the voters.

Among the most significant and enduring, for better or worse, of those changes are the initiative and referendum procedures. Initiatives are brought by petitions signed by voters to enact statutes or constitutional amendments. For a statutory initiative, voter signatures must number at least 5% of the votes cast in the most recent gubernatorial election. For a constitutional initiative, the signature requirement is 8%. In either case, once on the ballot, the initiative requires majority approval to pass.

A referendum is a decision by voters on an action already taken by the legislature. For a statutory referendum, the same signature requirements exist as for a statutory initiative. A constitutional referendum to amend or revise the constitution is different. The proposed amendment or revision must first be adopted by a two-thirds vote of each chamber of the legislature (27 out of 40 in the state senate; 54 out of 80 in the assembly). Then a majority of voters must approve. The legislature can also call a constitutional convention to revise the constitution, a task that, despite periodic clamor by the press, it has declined to perform. Finally, a “mandatory” referendum is required for bonds to be issued, if the bonds are repaid by taxpayer dollars. The legislature and governor must approve, after which a majority of voters must concur. All told, the California constitution has been amended over 500 times since 1879, with topics from criminal law reform, to term limits, to state pension benefits.

A third device of direct democracy is the recall of public officials. While the number of petition signatures depends on the office, for most state-wide offices, signatures equal to at least 12% of the votes cast for that office in the most recent election are required. If enough signatures are collected, two separate questions are presented to the voters. First, a majority must decide that the targeted official should be recalled. A second question decides who should take the recalled official’s place, if the recall is approved. There is no winnowing out of candidates through a primary election. Whoever gets the most votes, wins. A recent, and at the time rather shocking, demonstration occurred in 2003. Governor Gray Davis, a Democrat, was recalled by 55-45%, and Republican Arnold Schwarzenegger was elected with 49% of the vote over a plethora of other candidates.

Although these structural aspects of the Progressive Era amendments have had the most significant impact, other reforms also changed the nature of California politics. The Progressives’ hostility to political partisanship led to the abolition of straight-ticket voting, the adoption of cross-filing in primary elections (a process by which a politician could run for political office on the ballot of more than one political party), and the increase in officially non-partisan offices. Local elections cannot be contested by political parties. Thus, mayors and city councils are elected in nominally non-partisan elections.

Many academics and other reformers long have lauded this push toward meritocratic, non-partisan government. In a sense, it is faithful to the classic republican ideal of leaders dedicated to the common weal, rather than factional self-interest. But, in reality, evidence now shows that these restrictions tend to dilute voter attention and interest, which, in turn, produces more and more frantic efforts to increase voter participation. California’s latest constitutional contribution has been the introduction of the “jungle primary,” in which all candidates of the various parties for a particular office are placed on the primary election ballot. The top two vote-getters then run against each other in the general election. This was supposed to produce more “moderate” winners, rather than the more ideologically extreme candidates produced if each party had its separate primary. Instead, this process appears to increase voter confusion from the large number of names on the primary ballot, and lessen voter interest and involvement if, as often happens, the two names on general election ballot are members of the same party. This has further stultified the resiliency of political parties, especially the Republicans, in California.

California’s governmental structure differs from the federal system. The legislative branch is composed of two chambers, both elected on the basis of population. The executive branch is a “plural executive.” The governor is elected by popular vote, as is, separately, the lieutenant governor. While the President appoints federal department heads with Senate confirmation, in California many such officials (attorney general, secretary of state, treasurer, etc.) are elected as independent constitutional officers. While most of the governor’s powers are similar to those of the President, the governor also has a line-item veto over budgetary items. If the governor opposes a particular legislative budget item, he can veto it entirely or reduce it to a palatable level. That veto can then be overridden by a two-thirds vote of each house of the legislature.

Judges of the local and appellate courts can be appointed by the governor if a vacancy in the office has occurred. For appellate judges, the governor’s candidate must have been approved by the Commission on Judicial Appointments. There is no participation by the legislature. Once appointed, the chief justice and the six associate justices of the state supreme court serve for 12 years, after which they must submit to a retention election. The voters choose whether or not to retain the justice subject to this plebiscite. While retention is almost a foregone conclusion, in the 1986 general election, Chief Justice Rose Bird and Associate Justices Joseph Grodin and Cruz Reynoso were rejected due to their perceived eagerness to overturn all death penalty verdicts that came before them.

The state’s current constitution, in sum, is quite different from its predecessor. But, then, so are the people of the state. The earlier version followed the path of traditional American constitutional structure, with its basic organization of government and its “natural rights” approach. Today’s constitution is a record of over a century of interest group politics. It has long since ceased to be a constitution of law and become a constitution of policy. It is easy to mock the inclusion in a constitution of an exemption from property tax for “Fruit and nut trees until 4 years after the season in which they were planted in orchard form.” But one must not ignore the bigger issue. What started as a reform to get around a political structure controlled by the bosses of entrenched and organized political parties and clubs by creating a system of direct democracy to appeal to the voters directly, has become the playground of well-funded, unaccountable, politically-connected private pressure groups posing as expert technocrats solving problems. In the guise of the “public interest” are private interests achieved. This is the inevitable result of the Progressives’ Platonic vision of themselves leading the masses designed to follow. It is a fit constitution for a California increasingly divided into a highly-educated, highly-compensated elite; organized interest groups of public employees, environmentalists, and ethnic affiliation; a shrinking middle class, and a mass of workers and unemployed struggling to get by.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

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California has had two constitutions during statehood, one from 1849 and the other from 1879. Although only a generation separates them, their style, operative principles, and political consequences could hardly be more different. The Constitution of 1849 represented the classic American constitutionalism of the U.S. Constitution and of the Iowa and New York state constitutions that were its direct antecedents. The Constitution of 1879 bore the imprint of the wave of political populism sweeping the country during that decade. Together with subsequent amendments adopted during the Progressive Era, it became–and remains–an instrument of that time and contributes to the state’s radical politics.

The collapse, after about one month, of the quixotic Bear Flag Republic that had been proclaimed at the small town of Sonoma in June, 1846, and the ensuing declaration of American military control over California by Commodore John Sloat, resulted in a de facto military government for the next several years. The war with Mexico and the national controversy over slavery became tangled with the discovery of gold in January, 1848, at John Sutter’s sawmill at Coloma, east of Sacramento, and the ensuing rush of “49ers” into the area. Ordinarily, Congress would have established a territorial government and set California on an eventual path to statehood. But the political difficulty attendant to deciding what to do with the large territory gained from Mexico in the Treaty of Guadalupe Hidalgo resulted in a stalemate in Congress that kept California’s status frozen in place.

Californians had grander ideas. Why not skip territorial status and move directly to statehood? California, after all, was different from the rest of the formerly Mexican territory. California had established towns, a developing economy, good harbors for commerce, and a comparatively sizable population. Texas was different, too, and it had received statehood. Most of the rest of the new lands were wild and unoccupied.

When Congress failed to act, Californians in several towns in the northern, much more populous, part moved to organize representative governments on their own. They were encouraged by various national politicians, such as Missouri’s Senator Thomas Hart Benton, President Zachary Taylor, and the new “civil” governor, General Bennett Riley. The latter two went further, urging Californians to elect delegates to a state constitutional convention.

The convention of 48 delegates met in early September, 1849, in Monterey. Three-fourths of the delegates came from the northern areas (mostly settled by Americans from the Northern states; only 11 came from the Southern California (predominantly settled by American Southerners). The mining districts had elected a number of additional delegates who did not attend because of more pressing matters–mining for gold.

The northern delegates voted for statehood, the southerners preferred territorial status over concerns about taxation. The slavery issue was quickly settled. California would be a free state not due to humanitarian abolitionist sentimentality, but because, as one historian observed, the 49ers “were sensitive on the matter of dignity of hard manual labor, or rather of their particular form of it; they were outraged at the imputation that goldmining was work appropriate for slaves.” Echoing the Northwest Ordinance of 1787, and foreshadowing the 13th Amendment to the Constitution, the convention voted that “Neither slavery nor involuntary servitude, unless for the punishment of crimes, shall ever be tolerated in this state.” At the same time, the convention initially adopted a provision to exclude free Blacks from the state, but eventually reversed itself out of concern that Congress might reject the constitution on that ground.

The most difficult question, one that almost broke up the convention, was the question of the state’s eastern boundary. One faction wanted what eventually became the boundary, another wanted to include present-day Nevada and most of Utah and Arizona. The latter group had on its side the fact that the most common maps at the time and the one used in the treaty of peace showed this version of a “Greater California.” The convention eventually settled for the smaller boundary because of concerns about inability to have representative government for such an expanse, the inclusion of the Utah Mormons who were agitating for their own “State of Deseret,” and Congress’s likely negative reaction against such a massive state.

The constitution prohibited dueling, a restriction that proved quaintly optimistic. In a rough-and-tumble, male-dominated society that was still tinkering with formal legal structures, physical altercations would be a quick and direct way to resolve personal differences. One of California’s first Senators, William Gwin, fought a duel in 1853. Another Senator, David Broderick (a political rival of Gwin), would be killed in a duel by state supreme court chief justice David Terry. Broderick was not Terry’s first dueling victim. Terry was a master of several weapons, from knife to machete to pistol. Terry was shot many years later by a body guard of one of Terry’s former colleagues on the court, Stephen Field, who by that time had become a justice on the U.S. Supreme Court. The body guard, U.S. deputy marshal Neagle, feared that Terry was about to draw a weapon to kill Field.

The structure of the constitution reflected the traditional separation of powers among branches of the government. It was a comparatively brief and concise document produced within six weeks by using the Iowa constitution (mostly) and the New York constitution (some) as models. There was a bicameral legislature, and a plural executive whereby the governor and various other officers were elected independently from each other by the voters. The constitution followed the emerging democratic trend of the 19th century of an elective judiciary at all levels. The state supreme court was composed of a chief justice and two associate justices, with the office of the chief rotating year-to-year. The constitution also contained an extensive declaration of rights. Aside from that list, it addressed miscellaneous issues deemed significant, including the novel concept (derived from Spanish law) that property owned by a woman before marriage or acquired by her by gift or inheritance would remain hers.

The constitution was published in English and Spanish and submitted to the voters, who approved it on November 13, 1849, by 12,061 to 811. The legislature met in San Jose in December and submitted a petition for statehood. Congress, wracked by the slavery issue, did not accept until the Compromise of 1850 was worked out. The President signed the admission of California as the thirty-first state on September 9, 1850, and the constitution formally went into effect. It was amended only three times in the next thirty years.

There matters remained until the financial, political, and ethnic convulsions of the 1870s. The financial panic of 1873 brought unemployment and business losses. The immigration of a large cohort of Chinese brought racial tensions. The general political restlessness and increasing stridency of rhetoric contributed to political instability and the rise of new political associations, particularly the Workingmen’s Party, a pro-labor, anti-capitalist, anti-business, anti-Chinese party. In 1877, voters approved a call for a constitutional convention. Delegates were elected in June, 1879, and the convention gathered in Sacramento in September. The convention was three times as large as that of 1849, but it represented a non-Indian population that had grown from about 50,000 to nearly 900,000. It also took six months, rather than six weeks, to conclude.

It is not necessarily true that more time and man-hours produce a better result. The new constitution was an original work, but it was long, detailed, and prolix. A part of the problem was that the convention met during politically turbulent times and addressed “reforms” that should have been handled, if at all, through the legislative process. Another cause is that state governments exercise all legislative powers not surrendered to the general government. They are not governments of limited and delegated functions. Therefore, restrictions on state governments must be express. Today, the California constitution is even longer, due to the many amendments and the lingering effects of the Progressive Era changes described below. Even after voters in the 1960s and 1970s approved the removal of about 40,000 words by the Constitution Revision Commission, it is twelve times as long as the U.S. Constitution, making it among the most verbose state constitutions.

Representatives of the farm and labor interests, as well as of business, pushed through a common reform of the time, the creation of a state railroad commission with specified membership and powers. Labor got a maximum-hour provision for public works projects. A new state tax assessment board was created. Specific tax regulations to protect farmers were adopted. As would be expected, these regulations were easily circumvented by creditors, yet they remain part of the constitution. Corporations and banks were particular targets, with provisions passed to increase accountability of directors and shareholders. Labor law, business law, tax law, all matters that should be part of a system of codes brought into the fundamental organic law of government, the state constitution.

Finally, the Chinese. In a stark contrast to the current state government, a lengthy article of the constitution authorized the legislature to protect the state from “aliens, who are, or may become…dangerous or detrimental.” Chinese could not be employed by corporations or on public projects (except as punishment for crime, e.g. road gangs). It prohibited “Asiatic coolieism” as a form of human slavery. These provisions, predictably, were found unconstitutional by federal courts as violations of equal protection or of the federal government’s power over naturalization and immigration. The Constitution of 1879 was adopted by the underwhelming popular vote margin of 54-46 percent. In amended form, it remains the state’s constitution.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

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A wave of state constitutional conventions during the middle of the 19th century reflected the increased “democratization” of American politics that resulted in the election of President Andrew Jackson and the emergence of two modern national programmatic parties, the Democrats and the Whigs. In established and newly-formed states, the growing movement for popular control over government led to reforms of judicial systems by having judges run for political office under partisan aegis and denomination. Today, eight states retain some form of partisan election for their appellate courts, and more do so for their general trial courts.

By the late nineteenth century, the tide turned again, with partisan politics becoming identified with political corruption, urban political “machines,” and party bosses controlling the process from “smoke-filled back rooms.” Over the next several decades, reformers, often working under the label of “Progressivism,” pushed broadly for nonpartisan elections, including for judicial offices. Most new states, as well as some established states, adopted this system in the several decades beginning in the 1880s. About one-third of the states still have nonpartisan elections for their appellate courts; still more do so for their general trial courts.

There were also dissenters to the very idea of elected judges, at least above the level of local trial courts. Legal elites claimed that elections undermined judicial independence and gave short shrift to legal knowledge, experience, and temperament. One alternative would have been to follow the path of European systems that make judges civil servants, with a professional career path focused on passing examinations and embarking on the judicial analog to the old Roman cursus honorum to be selected to higher courts. While such a system makes sense for administrative courts or for courts that address technical issues of contract, property, or even criminal law, American courts address constitutional law controversies, as well. Those questions often overlap with controversial political issues, so that a more complex and difficult balancing act arises between judicial knowledge and independence, on the one hand, and political accountability, on the other.

One reform proposed early in the 20th century by the American Judicature Society was so-called merit selection. A non-partisan commission chooses a list of nominees, from which the governor appoints the judge, with no involvement by the state legislature. Thereafter, the people will vote at the next general election in a plebiscitary “yes-or-no” choice to retain or reject the appointee. Each judge so selected will have to stand in further periodic retention elections. This model was first enacted in 1940 in Missouri. Variants of the “Missouri Plan,” as it was dubbed colloquially, were adopted in about half of the states during the middle of the 20th century for intermediate appellate courts and supreme courts, though in fewer states for general trial courts. Since 1934, California has an inverted variation of the Missouri Plan, for courts above the Superior Court (trial court). The governor selects a nominee who must then be reviewed and confirmed by the state’s Commission on Judicial Appointments, which is composed of the chief justice of the California Supreme Court, the state attorney general, and a specified justice of the intermediate court of appeal. Again, the legislature does not participate.

While the Missouri Plan is still a popular reform proposal, it has come under fire by others who see it, with some justification, as an attempt by an unelected legal elite to entrench itself further in an isolated and unaccountable judicial bureaucracy. That opposition has manifested itself in increasingly divisive judicial retention elections and in some states, rejection of concrete efforts to institute the Missouri system. As to the former, while judges still overwhelmingly win retention elections, in California the vote in these elections has become closer. In the 1986 election, the chief justice and two associate justices of the California Supreme Court were rejected due to the public’s fury with the jurists’ perceived categorical hostility to application of the death penalty. Other critics complain that merit systems are a mirage, in that it is impossible to take partisan politics out of the process. They assert that political influence manifests itself in many ways through the structure of the system and the influence that the governor exerts through “citizen appointees” on the selection commission.

State courts generally have the same powers of judicial review regarding state constitutional law as federal courts have as to matters of federal constitutional law. If a state supreme court strikes down a state law as violating the state constitution, there usually is no review by the U.S. Supreme Court. The state court has acted under “adequate and independent state grounds,” which means that no federal constitutional interest is involved for further review. In addition, state courts can review state laws for their conformance to the U.S. Constitution, statutes, or treaties. Such decisions, whether for or against the state law, are usually subject to review by the U.S. Supreme Court.

In addition to their role in shaping ordinary civil and criminal law, much constitutional law is made through the state courts. One reason is because the U.S. Constitution provides only a “floor” of protection for individual rights. Moreover, the U.S. Supreme Court reviews a relatively small percentage of cases decided by all lower courts, including the 12 federal circuit courts, the 50 state supreme courts, and assorted other courts. State legislatures (and Congress) can expand those rights by statute, and state courts can do so through interpretation of their state’s constitution. While it is not always clear when or whose rights are expanded, rather than contracted, some state courts have been quite active in striking down state laws. For example, in abortion, school financing, same-sex marriage, and criminal procedure, among other topics, state courts have often gone further or, at least, been ahead of federal courts in defining constitutional rights. Compared to the last half of the 20th century, the U.S. Supreme Court has become more reluctant to lead constitutional change during the last couple of decades. This has refocused litigants’ attention on the state supreme courts, a trend that is likely to continue.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

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Under the Constitution, the only required court is the U.S. Supreme Court. The creation of lower federal courts has always been entirely at the discretion of Congress. Even if federal courts have jurisdiction, they can only hear cases specified in Article III, Section 2, of the Constitution. They are “limited jurisdiction” courts. However, the Constitution does anticipate the existence of state courts, which, in addition to their duties under state law, would perform the functions of federal jurisdiction if Congress chose not to establish lower federal courts. Even today, state courts can hear cases that involve federal jurisdiction, such as claims that arise under federal statutes or the U.S. Constitution, unless Congress has expressly made hearing that type of case exclusive in the federal courts. Congress has done that in regard to claims where the United States is a party, for example.

State courts, therefore, form the backbone of the American judicial system. Most laws are state or local laws, and most cases, civil and criminal, are heard in state courts. There may be state courts of limited jurisdiction, such as the Small Claims Court, but there is at least one level of “general jurisdiction” trial courts. In California, this court is called the Superior Court, organized by county. In other states, this may be called county court, district court or circuit court. In New York, this is called, rather bizarrely, the Supreme Court. These general jurisdiction courts may have separate departments, such as the probate division or the family law division. There may also be entirely separate specialized courts, such as juvenile courts or, in Delaware, the Chancery Court for business law cases.

In addition, many states have an intermediate appellate court system analogous to the federal circuit courts. These are typically organized by larger geographical areas. They, too, vary in names. In California, this is called the Court of Appeal for the 1st [etc.] District. In some states, this may be called the Appellate Department of the [insert name of general jurisdiction trial court]. All states have a final court of appeal. Usually, this is called [the state’s] supreme court. In New York, it is called the Court of Appeals, since, as noted above, New York calls its general trial court the supreme court.

In many states, as well as in the federal system, the role of intermediate appellate courts and the supreme court differ. Intermediate courts exist substantially to correct errors of law made by trial courts, so there is generally a right to appeal cases from the lower court. Supreme courts, on the other hand, are “courts of law, not of error,” where protecting litigants from the errors of trial courts is merely incidental to resolving significant legal issues for the broader public good. Thus, supreme courts are usually given great discretion by the legislature as to which cases they will review. The U.S. Supreme Court, for example, hears almost no cases on appeal. Rather, review is exercised by granting a writ of certiorari that orders the lower court to certify the record of the case to the Supreme Court for review. Many states follow the same approach. In California, only death penalty cases have mandatory appeal. Everything else is within the state supreme court’s discretion.

Federal judges are appointed by the President, with confirmation by a majority vote of Senators. With some exceptions for specialized, administrative law-type judges, such as the Tax Court, they serve during “good behavior,” i.e. potentially for life, subject to impeachment for constitutionally defined causes. At the state level, selection procedures for judges are so varied as to be incapable of complete description in a brief essay. A general overview must suffice. At the beginning of the country, a common model was to have legislative bodies appoint judges. Thus, the Virginia’s constitution of 1776 declared, “The two Houses of Assembly shall, by joint ballot, appoint judges of the Supreme Court of Appeals, and General Court, Judges in Chancery, Judges of Admiralty…[to] continue in office during good behavior.” This “popular control” was, at least in part a response to the distrust that many Revolutionary War-era Americans had towards the king’s appointed judges as officers of the Crown. Virginia is one of two states that retain legislative appointment in some form.

By the 1780s, a reaction had set in against legislative dominance under the first wave of state constitutions. Many states revised their constitutions over the next couple of decades. The new mode of selection of judges often replicated the U.S. Constitution. Thus, the Massachusetts constitution of 1780 stated that “All judicial officers…shall be nominated by the Governour, by and with the advice and consent of the Council [a body of nine members chosen by the two houses of the legislature jointly with a mostly advisory role to the governor]….” On the other hand, while judges in Massachusetts ostensibly served during good behavior, “the Governour, with consent of the Council, may remove them upon the address of both houses of the Legislature.” This easy removal maintained indirect popular control over the judiciary without having to resort to accusations of bad conduct needed for impeachment. Today, three states, not including Massachusetts, select appellate courts by gubernatorial appointment with legislative confirmation.

One odd characteristic of that Massachusetts constitution was that it permitted the legislative chambers, as well as the governor, to compel the Supreme Judicial Court to render formal opinions on “important questions of law, and upon solemn occasions.” This provision still applies in Massachusetts and a dozen other states. It calls upon that court to issue an “advisory opinion” even in the absence of a concrete dispute. This approach is used in various foreign systems, as well, typically those that follow the German model of having one specialized constitutional court that exercises judicial review. It is rejected under the U.S. Constitution for federal courts and in most state constitutions, which require that the judicial power only functions in concrete “cases or controversies” brought by a plaintiff who has suffered an actual injury and, thus, has standing to sue.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

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Guest Essayist: Joerg Knipprath

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When the Constitution was submitted to the American people in conventions in the several states, many objected that the lack of a bill of rights made the general government a dangerous tool of oppression. They looked to English antecedents, such as the English Bill of Rights of 1689, their historical colonial charters, many of which had contained express reservations of rights, and their existing state constitutions, many of which–but not all–had bills of rights. Some supporters of the Constitution, such as Alexander Hamilton, considered bills of rights empty verbiage at best, and dangerous implications of general governmental powers at worst. Moreover, Hamilton pointed out–in some tension with his previous argument– that the Constitution already contained limitations on the general government, for example, in the important provision in Article I, Section 9, against ex post facto laws. However, the need to get favorable outcomes in some closely-divided conventions persuaded the Constitution’s supporters to agree to promote a bill of rights once the new government was successfully established.

The First Congress set to that task. The initial set of amendments drafted by Representative James Madison were distilled from those submitted by the various state ratifying conventions, with the author declaring to Congress “I shall not propose a single alteration but is likely to meet the concurrence required by the constitution.” While most of those changes dealt with the powers of the general government or with limits to be imposed on that body, one group did not. Hamilton had also criticized the fact that the New York constitution, like that of some other states, lacked an explicit bill of rights. If anything, he noted, states needed bills of rights more than the federal government did, because they were governments of general and inherent legislative power, while the federal government was one of limited and delegated powers. For the former, then, any restriction on its powers had to be express.

Madison proposed to amend Article I, Section 10, of the Constitution (which dealt with restrictions on state governments), to add, “No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.” The House Committee of Eleven, to whom Madison’s proposal was referred, modified his language somewhat and added a protection of the freedom of speech. The House of Representatives made several changes. First, it changed the basic approach. Rather than revise the text of the original Constitution by interlineation of these changes, the original text would remain, and the changes would be separated and formally styled “Amendments.” Second, it rephrased the proposal as “ARTICLE the FOURTEENTH,” which declared, “No State shall infringe the right of trial by Jury in criminal cases, nor the rights of conscience, nor the freedom of speech, or of the press.”

Two weeks later, the Senate passed its own version, which omitted all references to limitations on state governments. The Senate’s version of the proposed amendments was, in essence, what was finally submitted to the states for approval. It is not entirely clear why the Senate dropped the restriction on state governments, though their selection by the state legislatures may have made Senators reluctant to impose express limits on those bodies. As a result, the Bill of Rights (and the 27th Amendment, which was proposed then, but failed to get the requisite state support until 1992) is concerned entirely with powers of the general government and with limits thereon.

In 1833, Chief Justice John Marshall, in Barron v. Mayor of Baltimore, confirmed that neither the Takings Clause of the Fifth Amendment at issue there, nor any other provision of the Bill of Rights, applied to the states. Referring to the constitutional settlement of 1789 that resulted in the adoption of the Bill of Rights, Marshall noted that the amendments “demanded security against the apprehended encroachments of the general government–not against those of the local governments.” There matters remained, formally, for nearly a century. Any restrictions on state governments, other than those in Article I, Section 10, had to come from the respective states’ constitutions.

In a society as locally-focused as Jefferson’s “Yeoman Republic” of artisans and farmers, such an arrangement made sense. But with the growing industrialization and its accompanying commercial intercourse shaping stronger regional and–more gradually, national–bonds, a new constitutional settlement was needed. The social dislocations caused by the “Industrial Revolution” were increasingly the targets of state law. Direct federal regulation of peacetime commerce did not occur until near the end of the 19th century with the Interstate Commerce Act, directed at the railroads, and the Sherman Antitrust Act, directed at John D. Rockefeller’s Standard Oil Trust and similar “malefactors of wealth.” The new entrepreneurial class that opposed state interference in their economic activities was frustrated by the variability of protections offered by the state constitutions and, if they were interstate companies, by the inconvenience and potential contradictions of state-by-state litigation to protect their interests.

There was the germ of another constitutional approach during this time, in the form of Corfield v. Coryell, a case in 1823 from the federal circuit court. Supreme Court Justice Bushrod Washington (George Washington’s nephew), as circuit judge, declared that the Privileges and Immunities Clause of Article IV, Section 2, protected a citizen of one state travelling to another state against discriminatory legislation by the latter, at least as to the exercise of certain fundamental rights. The “P & I Clause” had its antecedent in the Articles of Confederation. Washington wrote, “We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign.” Washington’s opinion reflected the “higher law” reasoning, based on theories of natural law, natural rights, and broad principles of freedom reflected in the social contract, to which the courts of that time had frequent recourse to limit the actions of state governments.

The drawback of Corfield was that Washington correctly held that the P & I Clause only applied to state laws that targeted out-of-state visitors. It was an anti-discrimination protection, not a guarantee of basic rights to anyone. Since state laws typically restricted in-state businesses as well as interstate enterprises, Corfield was of limited use initially.

Further change came through the adoption of the Fourteenth Amendment in 1868. That amendment contains protections against laws by state and local governments that infringe the privileges or immunities of citizens, that deprive persons of life, liberty or property without due process of law or that deny a person the equal protection of the law. The first Supreme Court decision to address the application of the Fourteenth Amendment to safeguard property and economic liberty against state regulation came in the Slaughterhouse Cases in 1873. An association of butchers in New Orleans challenged a state-created slaughterhouse monopoly. The Court rejected their claims and held that the privileges and immunities clause only protected rights of national citizenship, that is, rights that arise directly from a citizen’s connection to the federal government, such as the right of access to federal instrumentalities, and certain rights protected in the Constitution itself, such as the right of assembly and petition. As to due process, that clause only protected rights of fair trial. The equal protection clause only protected Blacks against racially discriminatory state laws.

The dissent in the Slaughterhouse Cases envisioned much greater protections. Using remarks made during the congressional debates on the amendment, Justice Stephen Field claimed that the privileges and immunities protected were those listed in the Bill of Rights, as well as those that would be within Justice Washington’s expansive description in Corfield. This would include the right to pursue any lawful trade or profession without the restriction posed by a state-licensed monopoly. Justice Joseph Bradley proposed an alternate theory, that the Louisiana law’s substance was an unconstitutional deprivation of property and liberty without due process.

The Slaughterhouse justices generally agreed that the Fourteenth Amendment applied some or all of the Bill of Rights to the states. Moreover, the dissenters argued that broad conceptions of privileges and immunities, and of property and liberty also restricted the states. Both approaches subsequently were used by the Supreme Court to overturn state laws. While Justice Field’s broad reading of privileges and immunities did not catch on, Justice Bradley’s views became the majority’s in Allgeyer v. Louisiana in 1897 and Lochner v. New York in 1905. There, the Court overturned economic regulations as a violation of the “liberty of contract” protected under the Due Process Clause. This doctrine of “substantive due process” is no longer used to invalidate federal laws (under the Fifth Amendment’s Due Process Clause) or state laws (under the Fourteenth Amendment’s) that regulate economic liberty, but has been used to strike down laws that violate various ill-defined aspects of the “right of privacy,” including long-standing laws that defined traditional marriage, prohibited certain forms of sexual conduct, and restricted access to contraception and abortion.

In addition to such “unenumerated” rights, the Supreme Court gradually applied the specific guarantees of the Bill of Rights to the states. Scholars debate about which case first “incorporated” specific provisions of the Bill of Rights into the Due Process Clause of the Fourteenth Amendment. At the turn of the 20th Century, the Supreme Court began to acknowledge that some rights protected by that clause were similar to those in the Bill of Rights. In any event, beginning in the 1930s, the Court over the next three decades clearly moved to incorporate, first, the Free Speech and Free Press Clauses and, second, various criminal procedure protections.

Three factions developed among the Supreme Court justices. One group, led by Justice Benjamin Cardozo, argued that only certain “preferred freedoms” within the Bill of Rights are incorporated into the Due Process Clause. Under this process of “selective incorporation,” only those freedoms that are “implicit in the concept of ordered liberty” would be applied against the states in the same manner that they applied to the federal government. Writing in Palko v. Connecticut in 1938, Cardozo defined these as the “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,” a vague and flexible formulation reminiscent of that by Bushrod Washington in Corfield a century earlier.

Justice Felix Frankfurter leaned towards Cardozo’s approach, but argued that the federal government and the states had different roles in our federal system. Particularly in the traditional state law domain of criminal law and procedure, the interests of the states must be balanced against the right at issue. As a result, the scope of the Bill of Rights protections when incorporated against the states should be similar to, but not necessarily identical with, those protections when they directly limit the federal government.

Justice Hugo Black urged “wholesale incorporation” of all of the first eight amendments of the Constitution. Black relied on his reading of the congressional debates over the Fourteenth Amendment, and on what he saw as the main purpose of that Amendment. The Court rejected Black’s approach as unsupported by the historical record. However, even though Black lost that battle, he effectively won the war. On recognition of the increased mobility and homogenization of our population across the country, the Court has come to incorporate almost all provisions of the first eight amendments. Only the Third, Seventh, and small parts of the Fifth and Eighth Amendments so far have avoided the process of the nationalizing of rights through their incorporation into the Due Process Clause of the Fourteenth Amendment.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

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After the adoption of the Constitution, the next significant use of this compact theory occurred in the Virginia and Kentucky Resolutions of 1798/9, authored by James Madison and Thomas Jefferson, respectively, and triggered by the Adams Administration’s Sedition Act. These resolutions held that Congress had only limited and delegated powers. If Congress legislated beyond those powers, it invaded the reserved powers of the states and threatened to consolidate power in itself. Division of powers existed to protect the people’s rights against tyranny. A state government could, perhaps even must, then declare the unconstitutional nature of the Congressional action. Beyond that, matters got murky. The means of redress were left to each state. For Virginia, this included interposition of state authority between its citizens and Congressional usurpation of their rights. Whether this went beyond seeking political change by pressuring Congress to repeal the law or petitioning that body to call a constitutional convention under Article V of the Constitution, to actively using state executive authority to prevent enforcement of the federal law, was not discussed. Though it was implied, there was no clear assertion that the state’s action (by itself or in concurrence with others) outright nullified the offensive law. The more radical Jefferson, however, did allow that a state could nullify the offending federal law within its territory.

The 1798/9 Resolutions and the earlier debates on the Constitution featured prominently in subsequent national controversies. Similar expositions of the federal structure were used to justify the actions of New England Federalist Party politicians at the Hartford Convention in 1814 and the more radical ideas–such as secession–that were proposed there for future consideration.

Calhoun proposed his doctrine of state nullification of unconstitutional federal laws in his Exposition and Protest against the Tariff of 1828. In subsequent writings, such as his 1831 Fort Hill Address, he further developed and refined the constitutional foundation for nullification. At the same time, he also undertook to provide a constitutional basis to protect the rights of political minorities through his doctrine of “concurrent majorities.” Acts of government whose burdens fell heavily on a particular (geographical) minority had to be approved both by the national majority and that minority.

While Calhoun began with the same assumptions about the “compact nature” of the Constitution and the political structure which it comprised, he added some important refinements. Each part, the Union and the States, had their assigned powers. Neither could invade the powers of the other, as delegated to the former and generally reserved to the latter. The difficulty lay in resolving conflicts that might arise over their relationship. Interposition, as accepted in the Virginia and Kentucky Resolutions, and nullification, as asserted by Jefferson in the latter, were prerogatives retained by the States against constitutional usurpations by the general government. But those tools were forms of protest, not resolution of conflict. The general government, being a creature of the Constitution, could not, through its agents, sit as judge in its own cause.

Calhoun relied on that 18th-century American contribution to political theory, the constitutional convention, to supply the remedy. Sovereignty lay in the people, as both sides agreed. As shown by the process of the Constitution’s adoption in the 1780s, an ultimate act of political association–and, by analogy, disassociation–by the people of a state required their consent. Since nullification of a federal law placed the state on a path to secession, the people must approve that initial step.  It was not possible, as a practical matter, to gather the people as a whole to debate and decide the matter. Hence, the action had to be undertaken by a special body elected by them and assembled for only that purpose. Only if the convention voted to nullify the federal law might the state legislature enact an ordinance of nullification. If the proper process of nullification was completed, it was up to Congress to resolve the controversy by calling a convention under Article V of the Constitution. If that convention voted in agreement with the state, and the convention’s action was approved by three-fourths of the states, the federal law was nullified. If the nullification was not approved either by the convention or the other states, the original state might vote to rescind the nullification or move to secede.

Calhoun’s proposal was built on existing constitutional process in Article V. However, he cleverly extended its reach because Article V required two-thirds of the states to petition Congress for a convention, while Calhoun’s convention was precipitated by the action of a single state. On the other hand, Calhoun stopped well short of the most rigid states’ rights position that potentially would legitimize nullification of a federal law within a state by the action of that state alone. Enough other states still had to concur to satisfy Article V, which assured against frequent resort by states to such a destabilizing course. Calhoun struck a balance between the interests of “Liberty and Union” in a manner that sought to avoid the extreme confederationalism of the unconditional nullifiers and secessionists, on the one hand, and of the biased nationalism of Congress and the Supreme Court. The former, after all, had been rejected by the language of the Articles of Confederation, in the ratifying debates on the Constitution, and in the formal rejection by many states of the Virginia and Kentucky Resolutions. At the same time, neither the Congress–despite the structure of the Senate–acting politically, nor the Supreme Court, acting judicially to balance Congress’s powers under the Constitution with the Tenth Amendment, could be relied on as fair arbiters of national-state disputes.

Today, Calhoun’s approach lacks constitutional legitimacy, as do more radical theories of nullification and secession. Yet, one can detect more than a faint connection between the broad claims of earlier nullifiers and secessionists and what has sometimes been called the “neo-Confederate” position of California and other “sanctuary” cities and states regarding the harboring of aliens living in the United States in violation of immigration laws. But, as Calhoun and the earlier Antifederalists worried, the other constitutional protections against “consolidation” have proven inadequate to the task. The states can go, hat in hand, to plead their case politically to Congress or in litigation to the Supreme Court. But the Senate is, as often as not, a happy collaborator in expanding federal power at the expense of state autonomy. The Supreme Court, in turn, has declared the Tenth Amendment a mere “truism” and, excepting a few timid anomalies, appears content to strain constitutional language ever-more to extend the reach of federal power. Perhaps it was inevitable due to human nature and the inbuilt structural imperfections of the system, as the Antifederalists charged, or perhaps it is the result of the complexities of a massive modern industrial society, but today’s “federalism” is patently not the Founders’ declared vision.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

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A persistent controversy during the Founding Period was the nature of the union and its relationship to the states. The issue had its antecedents during the colonial period in Benjamin Franklin’s proposed Albany Plan of Union in 1754. That unsuccessful proposal for–mostly–a defensive alliance among the colonies sought to produce a federation, “by virtue of which one general government may be formed in America…within and under which government each colony may retain its present constitution, except in the particulars wherein a change may be directed by the said act.” Franklin’s proposal bore a striking resemblance to more far-reaching subsequent attempts at union, such as the unsuccessful plan by Joseph Galloway in the First Continental Congress and the even more ambitious Articles of Confederation in the Second Continental Congress.

Common to all of these constitutional efforts was the confederal nature of the structure, with power emanating from the constituent colonies (or states) and granted to the federal “head.” Thus, the colonial assemblies or state legislatures selected the members of the union’s policy-making body, the powers of that body were limited to enumerated objectives that affected the union as a whole, and all other powers were expressly reserved to the constituent colonies or states. The Articles of Confederation–the most important effort until then, in that they created a more sophisticated and consummated plan of government–struck a delicate balance between federal power and ultimate state sovereignty. While the Congress had fairly significant powers that could be exercised either by a majority of the assembled states or, sometimes, by nine out of thirteen in the potentially delicate areas of taxation, commerce, and military mobilization, the Congress acted on the constituent states, not on the residents directly. As well, while states were authorized by the Articles to send multiple delegates to represent them in Congress, each state could cast only one vote. Finally, each state was described as having acted in its corporate capacity to create the union, and, to be part of the union, each had to approve the Articles, thereby clearly anchoring the locus of sovereignty in the independent founding states.

Debate over the Constitution of 1787 in the Philadelphia drafting convention and in the subsequent state ratifying conventions also focused significantly on the nature of the union and the relationship of the state and federal sovereignties. Opponents of the Constitution claimed that the states’ sovereignty had been destroyed. They warned, loudly, frequently, and widely, that the states’ republican essence was threatened by this new “consolidated” government, a freely-hurled epithet that threw the Constitution’s proponents on the rhetorical and political defensive.

As evidence for alarm, the Constitution’s opponents pointed to the broad new powers through which Congress acted on individuals directly and by-passed the states; the supporters pointed out that those powers were few in number. The opponents raised the availability of further implied powers, especially as embodied in the “necessary and proper” clause; the supporters (eventually) agreed in the Tenth Amendment that the states retained all powers not given to the general government; the opponents charged that this assurance fell far short of the Articles which had declared that the states retained all powers not expressly conferred on the Congress. Opponents claimed that the Constitution shunted aside the state sovereignty by declaring that the “People of the United States” had established the Constitution; supporters responded that the original draft had been that the “People of the States of [named 13 states]” had established it, but that there was no assurance that all thirteen states would eventually approve it, so the language was changed as a matter of form, not substance. Opponents pointed out that state conventions, not legislatures as constituent part of the state sovereignties, would approve the Constitution, and that only nine were necessary to do so; supporters rejoined that this reflected the ultimate sovereignty of the people and that, in any event, each state that wanted to be part of this new arrangement had to approve the Constitution.

James Madison in Federalist 39 made an earnest, though not always convincing, effort to minimize the changes from the Articles, by explaining how some of the Constitution’s characteristics indeed were national but that in many fundamental ways the new system retained its federal essence. Both sides were deeply at odds in their perceptions about the nature of the new constitutional structure. The position of Madison and other supporters of the Constitution was that there existed a dual sovereignty in this new federalism undergirded by the ultimate sovereignty of the people acting in and through the several states. Their critics dismissed this as nonsensical. Ultimately, practical sovereignty had to lie either with the state governments acting on the people or with the national government doing so. To the critics, the answer was clear, that the national government would expand its reach and destroy the state governments, consolidating all power within itself. The republic would end, and tyranny would rule.

Once the Constitution was adopted, the struggle turned to the issue of how, as a practical matter, to preserve state sovereignty and self-government within this novus ordo seclorum. One tool lay in the structure of the government itself. The Senate not only was a political counterweight for the small states against the larger states’ general influence in the economic and political direction of the union and their numerical power in the House of Representatives. That argument had been the tool to broker the great compromise in the early summer of 1787 that prevented the looming break-up of the convention. As well, the Senate, with its equal votes for each state, and a selection process that tied the membership directly to the legislatures of their state governments, represented what remained of the constitutional idea of a federalism resting on the constituent states. At least until the fundamental constitutional change wrought by the 17th Amendment, the state governments’ control of the Senate would negate or, at least, blunt efforts by the “popular” branch, the House of Representatives, to accrete power in the federal government at the expense of the states.

The extent to which the Framers’ envisioned role for the Senate was realized is unclear. The emergence of organized programmatic political parties introduced a variable that might redirect the loyalty of a senator from his state to a party and its national policies. On the other hand, senators were remarkably able in matters of great national controversy to focus on their home state governments’ political preferences and oppose their same-party fellows from other states who entertained contrary political positions. Senators’ votes on great national issues in the first half of the 19th century on war policy, tariffs, slavery, and, indeed, the nature of the union itself typically reflected whatever benefitted those Senators’ states, even at the risk of tearing apart the parties with which they were affiliated. The respective positions of Senators Daniel Webster of Massachusetts and John C. Calhoun of South Carolina on these matters are examples, even as they switched positions as their states’ interests required.

Calhoun, especially, recognized the increasingly tenuous hold of Southern states on the Senate and sought to develop a systematic constitutional theory to protect particular state institutions from national control. His specific concerns were, initially, the matter of protective tariffs sought by Northern manufacturing interests and opposed by Southerners as economically ruinous and, subsequently, preservation of the “peculiar institution” of slavery. As a more fundamental objective, he sought to bolster the ability of states generally to resist the consolidation of government in an increasingly self-regarding and confident American “nation.”

The constitutional case for vigorous state sovereignty to counter the dangers from a consolidated general government had been made frequently by the Constitution’s critics during the ratification debates. Their claim rested on the principle that the union was a compact of States. They pointed to the fact that the Constitution’s legitimacy rested on approval by the states; that the Constitution’s proponents frequently had asserted that the plan was not a revolutionary new system but an improvement of the extant one, as expressed in the Preamble’s objective to “form a more perfect Union;” and that failure to adopt the new plan would not mean the creation of 13 fully independent entities, but, rather, continuation of the earlier plan that had established a “perpetual union.” The shift from approval by the state legislatures under the Articles of Confederation to approval by state conventions under the proposed document merely reflected a more refined understanding of republican theory that fundamental alterations must reflect as clearly as practicable the consent of the governed.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

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At the time of the Revolution, Americans had shown that established churches could co-exist with free exercise of religious conscience. Still, religious restrictions on holding office, requirements to attend some religious service and financial support of the colony’s official church through taxes remained. Of those, as might be expected, the last was the most reviled by the public and, thereby, most easily attacked by willing politicians. It is on that ground that disestablishment of most colonial churches was initiated during the Revolutionary and Early Republican periods.

The Southern colonies, especially, moved to disestablish the official status of the Anglican Episcopal Church. North Carolina began the process in 1776, followed during the war by New York, Maryland, and South Carolina. There also began a decade-long struggle in Virginia towards that end. The Virginia constitution of 1776 declared, “THAT religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence, and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience ….” Thus was protected free exercise, but the established church yet survived. After the war, demands increased to disestablish the Episcopal Church, tainted by its connection to the Church of England. In 1784, the popular governor, Patrick Henry, proposed his “Bill Establishing a Provision for Teachers of the Christian Religion.” This would have protected de facto the preferred position of the Episcopal Church even if formal disestablishment were to occur, because it had the majority of pastors. Madison helped defeat the bill with his “Memorial and Remonstrance against Religious Assessments” when it came up for a vote in 1785. Madison was motivated in part by what he perceived as continuing persecution of religious dissent, despite the state constitution’s high-sounding declaration. He fulminated in 1784, “That diabolical, Hell conceived principle of persecution rages among some and, to their eternal infamy, the clergy can furnish their quota of imps for such business.” Finally, on January 16, 1786, the legislature adopted Jefferson’s Statute of Religious Liberty, to disestablish fully the Episcopal Church.

On the other hand, the deeply engrained theocratic tradition in New England prevented complete disestablishment of the Congregational Church. The Massachusetts Constitution of 1780 had a strongly pious Preamble, and in Article II of its Declaration of Rights asserted not only the right, but the duty, of everyone “publickly, and at stated seasons, to worship the SUPREME BEING, the Great Creator and Preserver of the Universe.” To be sure, no one would be punished for worshipping God according to the dictates of his conscience. But worship, one must. Article III emphasized the classic republican connection among good government, religion, and morality. This connection could only be maintained by the “publick worship of God, and…publick instructions in piety, religion and morality.” Accordingly, the legislature was directed to require the “towns…and other bodies politick, or religious societies” to provide financial support for such public worship and for “the support and maintenance of publick protestant teachers of piety, religion and morality.” Moreover, the people, acting through their legislature, could compel attendance at these services.

These blunt commands were softened by allowing those paying the support to direct that the funds go to a religious teacher of their own denomination whose services the taxpayer attended. If there was none, the funds went to the support of teachers the parish selected. Most likely, those selected would belong to the Congregational Church, in light of its dominance among the populace. As well, the same article prohibited the formal legal subordination of one denomination to another. This partial disestablishment of the Congregational Church was largely undermined by the support provision. Adherence to proper religious doctrine was also enforced for state officials through their declaration before taking office that they “believe the christian [sic] religion, and have a firm persuasion of its truth.”

By the time the Constitution was adopted, most states had fully disestablished their churches, though Massachusetts, Connecticut, New Hampshire, Maryland, and North Carolina retained some provision for mandatory taxation for the religion of one’s choosing. At the state ratifying conventions, many delegates had expressed fear that Congress might establish a national religion. The first Congress in 1789 debated a proposed Bill of Rights. Madison included a provision that no one’s rights should be abridged by Congress on account of religion, and that no national religion shall be established. The right of conscience was also protected in another section against invasion by the states. Significantly, the draft said nothing about state religious establishments. Elbridge Gerry of Massachusetts objected to “national” as implying that the United States was a consolidated entity, rather than a confederation. In response, the Report of the House Committee altered the language to “no religion shall be established by law.” The sections protecting the rights of conscience against infringement by Congress and the states, respectively, were unchanged. There still was no language about state religious establishments.

The amendments adopted by the House once more changed the language. Congress was disabled from establishing religion or prohibiting its free exercise. The rights of conscience were expressly protected once more against infringement by either Congress or the states. Yet again, no such language addressed state religious establishments. The clear implication of the language, then, was that states were not prohibited from having official churches, as long as the rights of conscience were maintained, but that Congress could not establish a church for the United States.

The Senate adopted its own amendments. The relevant provision prohibited Congress from “establishing articles of faith, or a mode of worship, or prohibiting the free exercise of religion.” The House’s restriction on interference with the rights of conscience by the states was dropped. A conference between House and Senate developed the language submitted to the states for approval. The Senate’s establishment language was seen as too weak, as it opened the door for Congress to fund a religious body, thereby creating an established church through the back door of preferred financial support. In turn, the House’s language that restricted state legislative power was deemed contrary to the purpose of the Bill of Rights, namely, to limit the general government. The result was, as Supreme Court justice and professor of constitutional law at Harvard, Joseph Story, wrote later in his influential Commentaries on the Constitution of the United States, “[The] whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice, and the state constitutions.” Further, Story wrote, “The real object of the amendment was, not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government…. [The] Catholic and the Protestant, the Calvinist and the Arminian, the Jew and the Infidel, may sit down at the common table of the national councils, without any inquisition into their faith, or mode of worship.”

However, simply adopting in isolation the House’s language that merely prohibited Congress from establishing religion would suggest that Congress could disestablish existing state churches.  That possibility ran counter to the federal nature of the union and endangered adoption of the amendments by undermining support in New England. That produced the awkward language that “Congress shall make no law respecting an establishment of religion.” Congress shall not establish formal religious orthodoxy through a national church, such as the overall still dominant Episcopal Church; at the same time, Congress, likely to be dominated by adherents of that church, shall not make it its business to disestablish existing state churches. The clause, one might say, incorporates a principle of antidisestablishmentarianism, too. Free exercise of religion (but not of non-religion) was fully embraced even in New England by the late 1780s, though it took several more decades of controversy to disestablish fully the Congregational Church in Connecticut (1819) and Massachusetts (1833).

Today, determining the scope and meaning of the establishment clause in controversies far removed from imprisonment for dissent, civil disabilities for attending prescribed religious services, or direct funding of specific ecclesiastical bodies has proved difficult for the Supreme Court. The clause retains both aspects of disestablishment and of its opposite. Religious test oaths are forbidden, which also means that one’s position even as a leader of a religious denomination is not a disqualifier from political office. The recent questioning by Senators Kamala Harris and Maizie Hirono of a nominee to the federal bench about his fitness for office due to his membership in the Catholic Knights of Columbus at least violates the principle behind the prohibition of such oaths.

As well, the Supreme Court has frequently reminded courts and legislatures that the establishment clause prohibits laws that demonstrate hostility to religion. Indeed, government may take a position of benevolent neutrality towards religion and may (and sometimes must) accommodate the actions of religious believers in otherwise neutral laws of general applicability. Certainly, contrary to some exaggerated assertions based on a hasty metaphor in a politically-charged letter by Thomas Jefferson, the clause does not represent a strict principle of an “impenetrable wall of separation” between church and state. Rather, the establishment clause originally represented a limit on the general government to interfere with institutions that represented the sovereign authority of the people of the states, either by displacing them with a superior national church or by prohibiting them (or, even worse, just some of them) directly. The free exercise clause (and its ubiquitous counterparts in the state constitutions) protected the individual rights of conscience and free exercise of religion, a distinction that Justice Clarence Thomas has emphasized. Today, the establishment clause attempts to strike a balance between, on the one hand, the importance to republican government of fostering the natural human inclination to religion and association in religious communities and, on the other, the social instability that historically has occurred when the realm of Caesar is fused to a particular conception of God, as well as the inevitable corruption of religious doctrine and institutions that results from dependence on government favors.

Let the unabashedly left-wing Justice William Douglas have the last word. He wrote in 1952 in Zorach v. Clausen, “The First Amendment, however, does not say that in every and all respects there shall be a separation of Church and State…. Otherwise the state and religion would be aliens to each other—hostile, suspicious, and even unfriendly…. We are a religious people whose institutions presuppose a Supreme Being…. When the State encourages religious instruction…, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe.”

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

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In the history of human society, religion and politics have almost inevitably been intertwined. Those in control of the organs of government seek to harness for their own legitimacy and power the natural human longing to participate in a project that transcends one’s everyday life. Religious belief and participation in religious ceremonies satisfy that personal longing, while they are also useful tools to control the actions of the populace and sustain the social order. Because politics has those same objectives of control and order, the levers of religious and political power not infrequently have been held by the same hands. The normal outgrowth of this is an officially-recognized religious dogma with approved outward manifestations, along with suppression, to different extents, of those who would deviate from the true path. In similar vein, those who would dissent from religious orthodoxy often make common cause with those who would challenge the reigning political faction.

In the medieval Christian West, there was a formal separation between the religious and political spheres, represented by Pope and Emperor, which reflected Jesus’s teaching about the superior domain of God and the profane (in the classic meaning) temporal world. However, there, too, the reality was different, in that those entrusted with the care of the soul often participated in power politics. The Pope and his control over the Papal States, the various warrior-bishops in the Holy Roman Empire, the English House of Lords Spiritual and Temporal, and the Archbishop/Electors that chose the Holy Roman Emperor come to mind. As well, secular rulers frequently attempted to influence, by various means, the selection of the Pope and subordinate clergy, and to secure the endorsement of the administrators of the spiritual realm for immediate political goals. The “Babylonian Captivity” of the popes at Avignon under the control of the French king is a prime example.

The end of feudalism and the emergence of the modern State were marked by increased wealth of the political rulers and by centralization of power in the person and the office of the king. In that era of royal absolutism, competing centers of power which might dilute the king’s ability to lay sole claim on the subjects’ loyalties had to be made to submit. Thus, the nobility, stripped of its important ancient privileges, increasingly became courtiers residing at the monarch’s court, where they were more easily controlled. The clergy, too, had to be neutralized. Much is told about King Henry VIII’s project to reduce the Catholic Church to the Church in England and, later, the Church of England–with the monarch as its head. Henry was not alone. With the shattering of the Universal Christian Church by the Reformation, the Holy Roman Empire’s superficial political universality came under pressure. The constituent duchies, principalities, and other assorted noble enclaves aligned based on religion, often for reasons of the rulers’ political ambitions. The specter of religious warfare induced the various parties to adopt the principle of cuius regio, eius religio, that is, the religion of the ruler (Catholicism or Lutheranism) would be the religion of the ruled. Those who did not wish to follow their rulers’ lead could emigrate to a more sympathetic realm; otherwise they might be subject to persecution.

With the vessel of religious universality broken, the essentially anarchistic imperative of Protestantism (“sola scriptura”) led to the formation of various sects beyond the relatively conservative Lutherans and the even more traditional Anglicans. Despite the establishment of the Church of England, the struggle between Anglicanism and Catholicism continued during the 16th and 17th centuries, as various English monarchs favored one or the other. Calvinist Presbyterians, nominally dissenters in England, also had a brief turn in power, through the person of James I Stuart, who had become the head of the Presbyterian Church of Scotland during his tenure as King of Scotland. Excluded from political power were adherents of various dissenting sects, such as Anabaptists and Quakers, and, except during the Oliver Cromwell “Protectorate,” other Calvinists. Their radicalism was seen as subversive of the existing order. Those and other dissenters primarily belonged to the middle classes of artisans, farmers, and merchants.

The common denominator in most European polities was the formal establishment of a particular Christian denomination and the suppression of dissenting views. There were exceptions, however. For example, the 17th century United Provinces of the Netherlands established the Dutch Reformed Church as the official religious body, yet broadly tolerated free exercise of religion even by non-traditional Christians and by Jews. This policy of relative tolerance attracted many adherents of persecuted faiths to the Dutch Republic. It also presented an alternative model to that of most state churches at the time, namely, that officially established state churches need not result in suppression of dissent.

Among the English dissenters were two groups of Calvinists, the “Pilgrim Fathers” and the “Puritans.” While the former sought to separate themselves from the Church of England, the latter hoped to purify it from within by continuing to associate their congregations with the official church. They abandoned that policy after the Restoration and became the Congregational Church. Both groups established settlements in New England. Despite their geographic proximity, their theological differences–though perhaps trivial to an outsider–kept them distinct for several decades, until the Pilgrims’ Plymouth colony was absorbed by the much larger Massachusetts Bay Colony in 1690.

In popular myth, Europeans came to British North America in search of religious freedom, which they heartily extended to all who joined them. The truth is more complex. The Pilgrims and Puritans, for example, indeed came for religious freedom, but for themselves only. Conformity in community, not diversity or toleration of dissent, was the goal. God’s law controlled, and governance was put in the hands of those who could be trusted to be faithful to the ultimate objective, the realization of the City of God on Earth.

As the Pilgrims’ “Mayflower Compact” of November 11, 1620, stated, “Having undertaken for the glory of God, and advancement of the christian [sic] faith, and the honour of our King and country, voyage to plant the first colony in the northern parts of Virginia; [we] …combine ourselves…into a civil body politick, for furtherance of the ends aforesaid ….” Puritan colonies in New England similarly strived for their goal to “lead the New Testament life, yet make a living,” as the historian Samuel Eliot Morison summarized it. The “Fundamental Orders” of the Connecticut River towns in 1639, a basic written constitution, set as their purpose to “enter into…confederation together, to maintain and preserve the liberty and purity of the gospel of our Lord Jesus which we now profess, as also the discipline of the Churches, which according to the truth of the said gospel is now practiced among us ….” As in Massachusetts Bay, justice was to be administered according to the laws established by the new government, “and for want thereof according to the rule of the word of God.” The Governor must “be always a member of some approved congregation.”

The theocratic nature of the 17th century New England societies meant that they limited new settlers to those who belonged to their approved strain of Puritanism. Those numbered many thousands, however, as the Massachusetts Bay Colony grew to 10,000 within four years. Dissenters were expelled. Those who failed to get the message of conformity were subject to punishment, such as four Quakers who were publicly executed in 1659 after they repeatedly entered the colony and challenged the ruling authorities.

The religious congregationalism that was at the core of the Puritans’ anti-episcopalism and which justified their expulsion of dissenters from their religio-political commonwealth also caused those dissenters to form communities of like-minded believers. Some of them, such as the famous dissenters Roger Williams and Anne Hutchinson, founded settlements in what became Rhode Island. Unlike Massachusetts Bay, these new settlements allowed freedom of conscience and lacked the official religion of other New England settlements.

During the English rule, at least nine colonies had formally established churches, generally the Anglican Church, and all required office holders to be at least Christians. However, other colonies’ founding had lacked the theocratic imperative of New England. While the Anglican Church enjoyed economic and political benefits from its established position, freedom of conscience and practice was extended to other Protestant denominations. Rhode Island, Pennsylvania, and South Carolina were founded with the deliberate goal of protecting peaceable religious practice. Other colonies, seeking to attract as many settlers as possible for the financial gain of investors (Virginia, New York) or proprietors (New Jersey, Maryland, Georgia) had pragmatic reasons to tread softly on the issue of religious orthodoxy.

The position of Catholics and Jews to practice their faith was more tenuous. In England, the Bill of Rights adopted in 1689 officially declared the country a “protestant” realm and prohibited the monarch from being, or being married to, a Catholic, a prohibition reinforced in the Act of Settlement of 1701. Similarly, only Protestants were guaranteed the right to bear arms. Other statutory restrictions on Catholics, Jews, and non-trinitarian Christian sects remained in place well into the 19th century.

In North America, even enlightened charters demonstrated the limits of religious tolerance. Colonial Pennsylvania rightfully has had a reputation for religious liberality. Thus, its 1701 Charter of Privileges declares that no person “who shall Confess and acknowledge one Almighty God…shall be in any Case molested or prejudiced in his or their person or Estate because of his or their Conscientious perswasion [sic] or Practice” or to attend any religious worship or do anything else contrary to their religious beliefs. Nevertheless, that same charter, as well as Pennsylvania’s lengthy “Frame of the Government” in 1682, contained a ubiquitous feature of such constitutions, the religious test oath or affirmation, in this case that all government officials had to “profess faith in Jesus Christ.” Maryland’s Toleration Act of 1649 recognized freedom of worship for anyone “professing to believe in Jesus Christ. However, the Act also provided for the death penalty for blasphemy or “[denying] our Saviour Jesus Christ to bee the sonne of God, or shall deny the holy Trinity the father sonne and holy Ghost.”

The formal establishments remained during the 18th century. However, the enforcement of religious conformity and suppression of dissent was undermined by the growth of the populations from many different European countries, the diversity of their religious beliefs, the relative isolation of settlements due to the large size of the colonies outside New England, and the scarcity of Anglican clergy and absence of a strong hierarchy. True, local communities might be remarkably homogeneous. In the colony at large, Quakers might be attracted to Pennsylvania for shared religious values, Catholics to Maryland, and Congregationalists to New England. Anglicans might be the majority in most colonies. Yet, the variety of sects within a colony and, even more pronounced, across the several North American colonies, combined with the general desire for material success, made tolerance a pragmatic policy. Eventually, pragmatic necessity became aspirational virtue. It must not be overlooked, however, that even the most tolerant polities had no use for skeptics, agnostics, or atheists. There was no Inquisition; the reality was more akin to “don’t ask, don’t tell.” Nevertheless, freedom of religion did not mean freedom from religion.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

 

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A recurrent theme during the debates in 1787 and 1788 over adoption of the Constitution was the structural incompatibility of “confederation” with “consolidation.” The latter was the feared absorption of the states into a unitary general government, so that they ceased to be sovereign members of a “union.” As counties or districts were consolidated within a state, so states would be in the United States.

The Articles of Confederation had guarded against that. In addition to laying out a number of substantive powers and the detailed means by which those powers were to be exercised, they carefully delineated the boundary between the states and the Congress: “Each state retains its sovereignty…, and every Power [sic]…, which is not by this confederation expressly delegated to the United States, in Congress assembled.” Moreover, under the Articles, Congress acted as a true “federal head” on the corpus of the states. Not only did the states have equal voting rights, but Congress acted on the states, not on the citizens directly. The last was the constitutional role of the state legislatures. Thus, under Article VIII of the Confederation, all charges assessed by Congress were to be paid by the states in prescribed proportion, and the “taxes for paying that proportion shall be laid and levied by the authority and direction of the legislatures of the several states ….”

By contrast, the new Constitution allowed Congress to bypass the state legislatures and act directly on the people through the powers laid out in Article I, Section 8, including the power to control its own sources of revenue by taxation. More ominously, clause 18 of that section gave Congress the power to make all laws “necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.” If that were not enough, Article VI of that document declared that, among other types of law, the statutes of Congress would be the supreme law of the land, and thereby override any state laws that Congress might deem contrary to the exercise of its own powers.

Both the “sweeping” or “elastic” clause (the aforementioned “necessary and proper clause”) and the “supremacy clause” drew the alarm of the Constitution’s opponents. Jefferson, writing to Senator Edward Livingston in 1800, illustrated their concerns, which had not disappeared with the document’s adoption. Congress had recently chartered a mining company.  Jefferson sarcastically compared this action to a popular nursery rhyme: “Congress are authorized to defend the nation. Ships are necessary for defense; copper is necessary for ships; mines, necessary for copper; a company necessary to work the mines; and who can doubt this reasoning who has ever played at ‘This is the House that Jack Built’?”

Even the preamble of the Constitution drew criticism. In passionate speeches to the Virginia ratifying convention in June, 1788, Patrick Henry drew a stark distinction: Had the preamble spoken of “we [sic] the States,” it would have been a confederation. Rather, it spoke of “We, the people, instead of the States of America,” a clear designation of a consolidated government. Henry saw that type of government as a grave threat to basic liberty. He specifically cited the “relinquishment of the trial by jury, and the liberty of the press” as well as threats to the states’ maintenance of their militias.

Attacking from another direction, he denounced Congress’s new power to tax the people directly, another feature of consolidated government, which replaced the Confederation’s system of assessments collected by the states for the federal head. In colorful language, he described the pathology of the new system: “In this scheme of energetic Government, the people will find two sets of tax-gatherers–the State and the Federal Sheriffs….The Federal Sheriff may…ruin you with impunity….Have you any sufficient decided means of preventing him from sucking your blood by speculations, commissions, and fees? Thus thousands of your people will be most shamefully robbed: Our State Sheriffs, those unfeeling blood-suckers, have, under the watchful eye of our Legislature, committed the most horrid and barbarous ravages on our people ….If Sheriffs thus immediately under the eye of our State Legislature and Judiciary, have dared to commit these outrages, what would they not have done if their masters had been at Philadelphia or New York?”

Henry charged, the defenders of the Constitution also were mistaken when they asserted that the federal and state governments would exercise their respective powers as in a “parallel line,” with each confined to its proper objects. Rather, there was no clear line drawn generally in the Constitution between the two levels of government. Even when a specific line was drawn, no mechanism existed to prevent one sovereignty from encroaching on the other. Inevitably, Henry argued, the more powerful general government must necessarily subvert the state governments. Hence, the “necessity of a Bill of Rights appear [sic] to me to be greater in this Government, than ever it was in any Government before.” Indeed, Henry rhetorically preferred the English structure, with its Bill of Rights to limit the King, to the proposed American Constitution that lacked such a document.

The structure of checks and balances among the branches of government and the split sovereignty of the Constitution’s version of federalism were, as Madison and other supporters had insisted, the bulwark to constrain the general government and to protect the people’s rights against arbitrary power. Henry represented the views of many in the various state conventions and, indeed, in the Philadelphia drafting convention, that their plasticity and permeability made such political measures insufficient. Henry’s fellow-Virginian, George Mason, instrumental in forming the Constitution in Philadelphia, left that convention before the final vote, due to that body’s refusal to include a bill of rights. Several other delegates departed for similar reasons. These critics insisted that a firm and clear enumeration of limits on the general government was needed, just as Virginia and some other states had in their own constitutions.

The objections voiced by Henry and others in the several state conventions, caused many of those bodies to submit lists of proposed amendments to the Constitution along with their votes to approve the charter itself. Consistently, these proposals sought to establish a clear line between the two sovereignties’ legislative powers. However, a nuanced, but substantively essential, difference in the language emerged between submissions from states that approved the Constitution early, contrasted with actions by later conventions. Between December 12, 1787, and June 21, 1788, the proposals from Pennsylvania, Massachusetts, Maryland, South Carolina, and New Hampshire, all contained variations on the following language: “That it be explicitly declared that all Powers not expressly delegated by the aforesaid Constitution are reserved to the several states to be by them exercised.” [Emphasis added.] (Massachusetts). That formulation approximated that in the Articles of Confederation. Thereafter, the three states that sent such proposals framed them without the word “expressly.”

The verbal difference illustrated a shift in the federal nature of the two sovereignties and was clearly understood. This shift was reflected in Madison’s language in what became the Tenth Amendment. His initial proposal in the First Congress read, “The powers not delegated by this constitution, nor prohibited by it to the states, are reserved to the states respectively.” When an amendment to this language was proposed on the floor of the House to insert “expressly” [delegated], Madison referred to the extensive debate in the Virginia convention. There, he had opposed such an addition as inconsistent with the structural change in the respective constitutional positions of the states and the general government in the new Constitution. He saw the proposed change to his draft as returning the government to the Articles of Confederation. Madison prevailed; the eventual Tenth Amendment did not include this critical adverb. Years later, in McCulloch v. Maryland, Chief Justice Marshall used this textual difference between the two charters to demonstrate the shift in sovereignty and to sustain his broad reading of the general government’s legislative powers.

Still, it would be historically incorrect to say that the principal objective of the Bill of Rights was to protect the states’ power to legislate. Rather, as reflected in the first eight amendments, the objective was to protect expressly the rights of the people from intrusion by the general government into their liberty. Even Henry spent considerable oratory emphasizing the threat the general government posed directly to the rights of the people. If it was necessary for the people’s liberty to have clear limitations against the state government in the Virginia constitution, how much more were they required against the general government?

The Bill of Rights only applied to the general government, not the states, as the Supreme Court affirmed in 1833, in Barron v. City of Baltimore. Protection of state authority to legislate was, to be sure, an incidental aspect of the project. For example, the First Amendment’s Establishment Clause sheltered the continued existence of established state churches. As well, the Second Amendment protected the states’ ability to sustain a militia in the event the federal government used its powers to frustrate the formal state governments’ control over that body. But that amendment did so by recognizing the right of the people, individually, to keep and bear arms, and to organize themselves into militias outside the corporate state governments, if needed.

Moreover, to the extent that the Bill of Rights protected the states’ legislative powers, this was not an unalloyed blessing for individuals. For example, Thomas Jefferson and other Republicans of the time denounced John Adams and the Federalist Party for passage of the Sedition Act of 1798. They claimed the statute violated the First Amendment and exceeded Congress’s legislative powers. At the same time, Jefferson encouraged his political allies in states that they controlled to prosecute Federalist editors under state anti-sedition laws. It was not until the Supreme Court in the 20th century began to incorporate Bill of Rights protections into the due process clause of the Fourteenth Amendment and apply them to the states, that states were prevented from curtailing individual rights beyond what the federal government could do.

Unfortunately, the fears of Henry and other skeptics about the reach of federal power and the erosion of state sovereignty have come true. From a constitutional perspective, the Tenth Amendment is a shadow of what it represented at the time of the ratification debates. If Congress acts directly on individuals under the broad reach of the commerce power, the Tenth Amendment is no real barrier. Only if Congress, instead of legislating directly, seeks to “commandeer” the states into adopting federal policies or administering federal laws is there a violation of the states’ residual sovereignty. Even that obstacle is easily evaded, if Congress attaches the states’ compliance with prescribed federal policies as a condition of receiving federal funds. Yet, as the American people have come to experience, states and localities still legislate vigorously, much more than during the Republic’s early years despite the erosion of their constitutional sovereignty. However, their ability to do so is primarily a function of practicality. It is simply too inefficient to have most local matters administered by federal officers and bureaucrats.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

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Republican government operates through voting and representation. In a geographically large polity, physical distance makes direct voting by its citizens impractical. In a populous polity, direct voting by citizens likewise becomes impractical, as it is difficult for a significant number of them to engage in proposing and debating public measures, or, as was the case even in ancient Athens, to find a place for all to gather. In both scenarios, the principle of consent of the governed as the ethical basis of the government is eroded as popular participation diminishes. Political participation must then be channeled into electing representatives who will vote on the citizens’ behalf in the law-making assembly. Setting the qualifications of those entrusted with the vote and defining the basis of the representational system thus become crucial endeavors for the polity. The focus in this essay is on the nature of representation.

As the writers of The Federalist Papers explained, a representational system based on population must address two conflicting pressures. The population in the relevant districts must be sufficiently small that the representative realistically may be said to reflect the concerns of his constituents, yet not so small as to increase the size of the assembly to the point of functional ineffectiveness. As James Madison observed in Federalist 52, “[I]t is particularly essential that the [House of Representatives] should have an … intimate sympathy with, the people.” At the same time, he wrote four essays later, “The truth is, that in all cases, a certain number at least seems to be necessary to secure the benefits of free consultation and discussion; and to guard against too easy a combination for improper purposes: as on the other hand, the number ought at most to be kept within a certain limit, in order to avoid the confusion and intemperance of a multitude….Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.” The Philadelphia Convention set the original apportionment among states at no more than one seat in the House of Representatives for each 40,000 residents. On the last day of the Convention, that was decreased without debate to 30,000, a number that James Madison in Federalist 56 noted to be the ratio in the British House of Commons, as well.

The concern about districts that are too populous ties into the broader question of what constitutes a political “community.” That concern is not new. In his book The Laws, Plato put the ideal size at 5,040 citizens. Reflecting his Pythagorean fascination with numbers and mathematical precision, that size is the product of multiplying numbers 1 through 7 by each other. Since “citizens” did not include women, children, metics (aliens), and slaves, the actual population of such a community likely would be between 30,000 and 50,000, with 40,320 being Plato’s citizen number multiplied by 8. In what is unlikely to be coincidental, James Madison in Federalist 57 notes that House members would be elected by 5000 to 6000 citizens each. Aristotle was less precise. He opined that the polis had to be large enough to be self-sufficient, yet not so large that people did not know each other and order could not be maintained. Although Athenian citizens voted directly in the democratic assembly, the same measures of community would apply in a republican system of representation by districts. To exercise wise judgment in political matters, either as a voter or representative, it helps to know your fellow citizens personally and their concerns and interests. As Madison agreed in Federalist 56, “It is a sound and important principle, that the representative ought to be acquainted with the interests and circumstances of his constituents.”

With the large population of the United States, representation in the House is now based on districts that each have, on average, about three-fourths of a million residents, roughly the size of the largest state in the Union in 1790, Virginia. This departs grotesquely from the traditional understanding of community and calls into question how “republican” the system of governance in the United States is today. The vast majority of voters cannot personally get to know the candidates, or they the voters. Voters cannot gage accurately the general community concerns and interests, as they cannot interact extensively with a sufficient number of their fellow-residents. Campaign flyers the month before the election, occasional forums before necessarily limited numbers of constituents, and, from only a few representatives, a brief message or constituent survey once or twice a year cannot establish the requisite relationship for truly republican self-government. Much “debate” of issues occurs either through mass distribution of brief collections of grossly distorted “facts” in campaign literature, unverifiable claims in “robocalls,” and maudlin appeals to emotions in televised ads, or through the musings of “talking heads” colored by personal ideology or financial interest. As a result, voter confusion and ignorance increases. Many are turned off by the process and, from this alienation, voter participation decreases. That, then, empties “consent of the governed” of its practical content and threatens to make it an entirely theoretical construct to hide the actions of an oligarchic government of the elite, by the elite, and for the elite.

Two factors might counteract the threat that populous districts pose to the republican principle of representation. One is the technological revolution that allows participation via one’s computer in virtual “town halls” with candidates and in debates among constituents through blogs or other websites. The second is that matters of national importance such as war, foreign relations, interstate commerce, immigration, and a sound currency affect all Americans. Therefore, there is less salience to the idea that a representative need be clearly cognizant of the particular sentiments of his district’s inhabitants.

As to the first, Madison addressed in Federalist 10 how the small number and physical proximity of local populations facilitates communication of ideas and conformity of interests. While he certainly did not consider this an unmixed blessing in either a democratic assembly or a legislative body, he accepted it as a traditional aspect of self-rule. However, the sheer number of potential participants and the necessarily limited time and frequency of virtual “town halls” still makes connection on a personal level among participants and with their representative unlikely.

Other versions of electronic communication have led to “virtual communities” that form apart from physical domiciles. There are several problems here. Those communities often are national, if not international. Their interests and concerns, and those of the blogger, may not reflect those of the district that elects the representative. Moreover, experience tells us that much debate on those blogs by commenters involves irrelevancies and digressions, as well as invective that, were it delivered in person rather than through the safety and anonymity of the computer keyboard in an undisclosed location, would be strongly curtailed. Such distractions would be much less likely to be tolerated in a physical meeting. The absence of an enforced agenda and the lack of civil discourse in such settings again alienates many, who then choose not to participate. Finally, there are intangible aspects to physical interactions that facilitate personal bonds and resolution of problems. Those aspects are lacking when discussion occurs through disconnected remarks among an atomized group of physically isolated commenters.

As to the second, the immediately obvious problem is that Congress no longer limits its legislation to truly national issues. Instead, the expansion of Congress’s substantive powers regarding interstate commerce, taxation, and spending, approved in Supreme Court opinions, brings personal decisions and policies that have predominantly local effect within Congress’s reach. For such issues, the particular needs and interests of local minorities are more likely to go unrepresented in larger, more homogenized districts. This is especially true since the Supreme Court has held that any population inequality in a state’s congressional districts will be closely scrutinized, thereby making it more difficult to adjust district boundaries to give such minorities a voice. As well, the problem of very large populations within legislative districts applies to many state and local bodies who are not dealing with national issues, but whose policies also are increasingly restrictive against personal actions. While it is admittedly an outlier, the five-member Los Angeles County Board of Supervisors makes policy that potentially affects over 10 million residents. California State Senate districts have about a million residents apiece; each Assembly district has a half-million, larger than all but one state in 1790. Some states and most localities have smaller districts, but other populous states’ legislatures operate similarly.

Another aspect of republican doctrine about representation is the requirement that two legislative chambers must concur in legislation. Bicameralism is not an essential republican feature, but it is nevertheless common. Such division serves to control the passions and self-interest of the general citizenry and, therefore, of their representatives, that is, “the propensity of all single and numerous assemblies, to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions,” per Madison in Federalist 62. The typical form is that the “lower” chamber represents the interests of the numerically predominant social or economic class, and the “upper” house represents a different class, usually deemed wiser and more dispassionate in its deliberations for the common good.

There have been many forms of bicameralism. Even the ancient Athenian democracy did not place unrestricted power in the citizenry gathered in the popular Assembly. There was a Council of 500, apportioned equally among ten districts, whose members were chosen by lot (akin to a jury system). Each month of the ten-month “Conciliar Calendar” year, a district’s members would compose the 50-member steering committee that controlled the legislative agenda of the Assembly, especially in financial matters. In the Roman Republic, power was divided between the patrician Senate of the landed aristocracy and various assemblies of the plebeians. Those assemblies were further divided among six plebeian classes based on their wealth. That division maximized the power of the knights (“equites”), the wealthiest of the commoners, and minimized the influence of the poor.

Such wealth-based or status-based division has been a common form of bicameralism. When Britain controlled the American colonies, Parliament was composed of the House of Lords, whose members were certain high-level clergy of the Church of England (“Lords Spiritual”) and the hereditary landed high nobility (“Lords Temporal”), and the House of Commons, which represented the gentry and commercial classes. In the early United States, the Massachusetts Constitution of 1780 specified that males meeting a set property qualification could vote. However, the two houses of the General Court (legislature) were based on different political principles and had different qualifications for the members. The state’s House of Representatives was apportioned on the basis of population (actually, qualified voters) in incorporated towns. The Senate was apportioned among districts based on their wealth, as measured by the taxes collected from that district. The members of the House had property qualifications significantly higher than the voters, and the members of the Senate had property qualifications twice as high as those for the House. Such tiered property qualifications were not uncommon for voters and representatives in state legislatures for several decades after independence. As well, distinct methods of apportionment between the chambers of the legislature, as in the Massachusetts model, were common.

The Articles of Confederation provided for only a single chamber, and representation was based on the equal status of the States as constituent members. When the Framers drafted the Constitution, the Great Compromise of 1787 resulted in a House of Representatives primarily based on population and a Senate based on the same principle of state equality as under the Articles. The division was not formally class-based. Instead, it reflected a practical accommodation of political minorities in a large and diverse political entity whose residents’ primary identity was with their local communities. From another perspective, the smaller number of Senators and their longer terms would provide the necessary independence from fleeting popular passions and foster the reflection and wisdom to restrain the feared reflexiveness and tempestuousness of the House. There were no property qualifications specified for legislators, so that the broadest pool of talent was available. As the Supreme Court found in Powell v. McCormack (1969), the Framers did not intend that Congress could add qualifications to age, citizenship, and state residency explicitly provided in the Constitution. In 1995, in U.S. Term Limits v. Thornton, the Court held, with less historical justification, that states were likewise restricted. Property qualifications for voters were left to the discretion of each state, as long as qualifications were not more restrictive than those the state had for voters for the lower house of its own legislature. By the mid-1960s, however, the Twenty-Fourth Amendment and the Supreme Court’s decision in Harper v. Virginia Board of Elections (1966) made it unlikely that any wealth-based restriction on voting was constitutional.

In 1913, the Seventeenth Amendment changed the method by which Senators were chosen. Henceforth, they would be elected directly by voters. Recent critics have called for repeal of that amendment, because they view it as having caused the decline of the states’ political influence relative to the general government. However, the change from the original method of selecting Senators was the product of a long trend, not a sudden upheaval. A proposal to amend the Constitution to provide for popular election of Senators was introduced as early as 1826. For a couple of decades before the Seventeenth Amendment was adopted, states had been moving to allow “preference elections” by the people that would recommend to the legislature the person to be selected, thereby putting political pressure on legislators to select the winner.

It is unlikely that such a repeal movement would succeed, given the current culture of activist government and the political inertia in favor of constantly expanding the totality of voters. It is also doubtful that the power of the federal government would be reduced, even if the movement were successful. It requires suspension of disbelief to think that the California legislature, whose members are increasingly drawn from the Democratic Party’s most radical factions, is suddenly going to select Senators who favor turning off the federal spigot of funds, combatting illegal immigration, or supporting a person’s right to bear arms. Politics is downstream from culture, and the majority of people favors getting government-directed largesse paid for by others. The problem for republicanism, in other words, is with the voters, not with the representatives they elect.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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. He has also spoken on business law and contemporary constitutional issues before professional and community forums,and serves as a Constituting America Fellow. Read more from Professor Knipprath at:http://www.tokenconservative.com/.

 

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In June, 1765, through the work of Patrick Henry, the Virginia House of Burgesses resolved:

…That the Taxation of the People by themselves, or by Persons chosen by themselves to represent them…is the only Security against a burthensome Taxation, and the distinguishing Characteristick of British Freedom, without which the ancient Constitution cannot exist.

…That his Majesty’s liege People…have without Interruption enjoyed the inestimable Right of being governed by such Laws, respecting their internal Policy and Taxation, as are derived from their own Consent ….

Several months later, the Stamp Act Congress echoed those principles, which reflect several connected components of colonial constitutional theory, among them that government rests on consent of the governed and that taxes must come from those who pay them or through their representatives (“no taxation without representation”).

The struggle over revenue had long occupied the king and Parliament. Matters came to a head in the 17th century, an era that began with sovereignty in the former and ended with it in the latter. Parliamentary theory rested on the idea that, while the king has certain “prerogatives,” outside those he is subject to the law. A fundamental principle of law is that one cannot take from another what is the latter’s. Thus, the king cannot take the property of the people in the form of taxes. However, the people are free to make a gift to the king who is in need of funds to act for the common good. They might do so directly, but, as such a system would be difficult to administer, their political representatives might consent on their behalf. Less clear, however, was how those political representatives could give that consent on behalf of those who might object.

The same contentions arose in the colonies, long before the Stamp Act controversy. For effective governance, every political system seeks obedience to its edicts by convincing the people of their obligation to do so, i.e. not that they “must” obey or suffer the consequences, but that they “ought” to do so because it is ethically right. One way to establish the ethical basis of government is that it is essential to human society due to our nature as social beings. Another is to justify government as ordained by God for human flourishing. A third way, common in modernity, is to use voluntary human choice to institute government through a “social contract.”

Colonies in British North America were established through three mechanisms, each of which is grounded in some manner in social contract theory. First came the private, for-profit colony, represented by the Virginia Company of London, which founded Jamestown, Virginia, in 1607. Investors bought shares in a joint-stock company, a concept of pooling capital somewhat akin to a modern business corporation. Under its charter, the Company was managed by a council in London. Its operations in the New World were directed by a governor and council appointed by the Company. Until 1609, there was also a Royal Council appointed by the king to look after the crown’s interests in its domain.

After a period of military rule as the colony struggled to survive, the Company in 1619 ordered the creation of a representative body to attract more settlers. When the Company’s charter was revoked in 1624, Virginia became a royal colony. The king appointed the governor and council, but the locals (“burgesses”) chose the assembly. Though its status initially was somewhat precarious, by 1639, the king recognized the right of this House of Burgesses to meet permanently. Though there were local variations, this model of governor and council plus local assembly became the pattern for all English colonies, and the House of Burgesses (with its heir, the Virginia House of Delegates), became the longest-constituted legislative body in North America. The early history of the government of Massachusetts Bay was nearly identical, except that there the “General Court” was divided into two chambers in 1644, setting a precedent for bicameralism to represent different constituencies.

A second type of government, the compact colony, arose in New England, initially in the Pilgrim settlement at Plymouth, Massachusetts. Having obtained a patent to settle on Virginia Company land, they landed too far north and lacked political authority for their settlement. As a result, the adult males formally chose “solemnly and mutually in the Presence of God and one another, [to] covenant and combine ourselves together into a civil Body Politick …” This Mayflower Compact, augmented by customary practice, served as the form of government for the colony for its seventy-one years of existence.

Similar approaches were used in Puritan colonies founded thereafter at New Haven, in Rhode Island, and–through the Fundamental Orders of Connecticut–among several Connecticut River Valley towns. All were new settlements created out of primeval wilderness. These “compact colonies” most purely embodied the principle of voluntary consent as the basis of legitimate government. The idea of a social contract neatly meshed with Calvinist religious doctrine based on a covenant with God and on a congregational theory of members who came together to form their spiritual assembly based on each person’s free agency in his relationship with God. From there, it was but a small leap to argue that civil society and the political commonwealth, too, were created by individual consent. John Locke, writing a couple of generations later, could look to them as examples of his theory about the social contract made when man left the state of nature.

The third type was the proprietary colony, such as Pennsylvania, Maryland, New Jersey, the Carolinas, and Georgia. The king would grant a Lord Proprietor a patent to a large tract of land with the expectation that the proprietor would govern the area as it became settled. This semi-feudal arrangement usually repaid the proprietor for some favor, such as the grant of the Carolinas by Charles II to eight nobles who had helped him secure his return to the throne in the restoration following the Cromwell Directorate. The patent defined the political relationship between king and proprietor, while a further instrument drafted by the proprietor, such as the Charter of Liberties and Frame of Government of the Province of Pennsylvania (1682), delineated the relationship between the proprietor and the settlers.

While many of the early patents gave virtual independence to the proprietor, there were still some restrictions that protected the king’s political interest. For example, the grant to William Penn required him to submit all laws to the Privy Council (a body of advisors to the king) for approval and to recognize the king’s right to levy taxes. The proprietor made himself governor or appointed his agent to the office and was advised by a council. Under some patents, the proprietor need not call an assembly, but, due to the political pressures that the settlers inevitably exerted, proprietors of all colonies soon consented to elected legislative bodies.

No matter the type of colony, political instability in England caused changes in the formal constitutional relationship between various colonies and the mother country. Charters were revoked and re-granted. Eventually, all colonies formally became crown colonies and part of the king’s domain. By the end of the 17th century, a common pattern had emerged that lasted until the Revolutionary War. The colony had a governor, who, except in Connecticut and Rhode Island, was appointed by the crown. As the 18th century progressed, the governor often was a local leader. There was also a council of prominent locals, appointed by the crown, which advised the governor. Finally, there was a legislative body, elected by the local residents and acting with their consent. That body was typically unicameral, although Massachusetts Bay had a bicameral General Court. Qualifications of voters and representatives generally were tied to property ownership, most commonly land, and, sometimes, to religious affiliation.

On the surface, these arrangements reflected the British system of king, council (later to become the Cabinet), and Parliament. There was, however, nothing like the House of Lords, as the colonies lacked a hereditary nobility and the higher order of Anglican churchmen who composed that chamber. As well, colonial assemblies, such as the House of Burgesses, soon wrested from the governors, councils, and even the proprietors, the power to levy taxes, just as Parliament did from the king over the course of the 17th century.

Crucial for the colonial constitutional order was a significant characteristic. Both mother country and colonies had representative legislative bodies.  However, the systems operated differently, which eventually produced incompatible theoretical principles of representation through the catalyst of the events leading up to American independence. The British system was one of careful balance of interests between different important social estates in society (king, nobility, and commons dominated by merchants and gentry). It stressed stability. Loyalty was class-based, but, as in many republican systems, the lower classes were effectively denied participation. Members of the House of Commons were to protect the interest of the commons against the other estates and were expected to vote according to their own good faith perception of what best served the interests of the commons as a whole. They held their vote in trust for the whole commons–the “trustee theory” of representation.

In the colonies, distances were greater and settlements often more isolated. The approach was to allocate representation by geography, to towns and physical estates. Local communities elected representatives from their own residents. Moreover, the colonies lacked the more defined class structure of Britain. Finally, despite limitations on the electoral franchise in the colonies, a much higher proportion of adult (usually white) males could vote than in Britain. The loyalty of those elected was foremost to their geographical constituencies, and they were expected to look to those constituents’ interest, not to class affiliation, when voting. Many towns conducted their own affairs by periodic meeting of all residents, and they often carefully instructed “their” representatives how to vote on important issues–the “delegate theory” of representation.

Out of these practices developed rival theories, the British “virtual” representation and the American “direct” representation. During the controversies of the 1760s and 1770s over taxation and other internal legislation, the two sides talked past each other even as efforts were made to avoid a complete break. The British claimed that all were subjects of the king, and that the interests of the colonists were fully represented by the “commoners” in the House of Commons, even if Americans had not voted for them or had someone from their community as a representative. The Americans demurred. If they could not exercise their vote directly out of practical considerations, their franchise could be transferred only to those whom they had directly authorized to vote and over whose performance of this fiduciary duty they had actual control. Only their colonial assemblies, those closest to them in community, were authorized to legislate on their behalf, especially in the dangerous area of taxation. They had not consented to taxation by persons thousands of miles away whom they did not know and for whom they had not directly voted. To Americans, consent had lost all meaning, if the British were correct.

This much-fought-over distinction in representation was not, by itself, the catalyst for revolution. But it does portray the dissatisfaction of the Americans with laws that affected them in their personal lives and livelihoods being enacted by a body thousands of miles away and over which they had no effective control. Many currents were driving the societies apart: the large geographic size of the American possessions; the near-parity in population that was likely soon to favor the Americans; the comparative lack of class consciousness among the free population in the colonies; their greater ethnic and religious diversity; and the sense of self-identity and self-government that, while not yet complete or clearly expressed, had resulted from more than a century of benign neglect by the Crown between the 1630s and 1750s. Virtual representation works if there is a clear community of interest, and it must affect the interest of a clear “community.” In a preview of later federalism, Americans could accept Parliament’s sovereignty in matters that touched all, such as foreign relations and international trade, but not in primarily local matters.

The U.S. Supreme Court in U.S. Term Limits v. Thornton (1995) found that members of Congress do not represent the voters of their districts or states, but, instead, the people of the United States as a whole. Thus, a state cannot place term limits on “its” representatives. This sounds remarkably like virtual representation, especially since a state also cannot require the representative to be a resident of any particular district. If Congress concerned itself only with matters necessarily national or international in scope, this view need not raise concerns. But as Congress busies itself with more and greater intrusions into personal decisions, such as health insurance, one might ponder if the same alienation felt by Americans of the 1770s towards the far-away British government is not felt 250 years later by Americans towards their own. Do such laws still meaningfully reflect the consent of the governed so emphatically proclaimed by the House of Burgesses against the Stamp Act?

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at:http://www.tokenconservative.com/.

 

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Webster’s fame as a constitutional lawyer, orator, and political leader was enhanced by his arguments in other cases. In one, Gibbons v. Ogden (1824), Webster represented Thomas Gibbons, who operated a ferry boat under a federal license. Webster argued that Congress had exclusive power over interstate commerce. While Marshall stopped short of Webster’s position, he interpreted the federal power broadly and agreed that Congress could reach the internal commerce of states. Again, as in McCulloch, a state law was found unconstitutional as an infringement on federal power.

In Dartmouth College v. Woodward (1819), Webster represented his alma mater against the attempt by New Hampshire to revoke its charter as a private institution and turn it into a public entity. This time, there was no direct national government interest at stake. Still, Marshall’s opinion, that the state’s action violated the Contracts Clause of the Constitution by impairing the obligations and vested rights under the existing charter, was yet another restriction on state power. Webster’s impassioned advocacy for the protection of rights in property against legislative infringement fit his belief that political participation must be strongly tied to property ownership. Thus, in the Massachusetts constitutional convention of 1820, Webster argued, albeit unsuccessfully, against eliminating property qualifications for voters.

In yet another famous case, Luther v. Borden (1851), Webster represented Luther Borden, a state militia officer who had searched the house of Martin Luther, a leader of an abortive new government for Rhode Island. That state’s colonial charter operated as its constitution even after independence. Due to popular dissatisfaction in the 1840s with the charter’s restrictive property qualifications for voting and the malapportionment of the legislature, a movement under the leadership of Thomas Dorr sought to replace the charter by appeal to the people acting in convention. The movement was initially peaceful, and its new constitution was approved in a popular vote. However, eventually an armed clash occurred between forces allied with the rival “governments,” which the old charter militia won.

The Supreme Court was called on to decide which was the state’s legitimate government. Chief Justice Roger Taney demurred, opining that the Constitution’s command that the United States shall guarantee to each state a republican form of government presented a political question that could not be decided by a court. Of considerable public interest were the two sides’ lengthy arguments. Luther’s attorneys embraced the constitutional view of James Madison and others during the ratification debates over the Constitution that the sovereign people had an unrestricted right to change their constitution at any time, for any reason, and by any (peaceful) means. Webster agreed with this principle as a theoretical proposition only. Ever fearful of revolution, he insisted that such fundamental change could only come through the prescribed means in the state’s constitution or, if none existed, through action by the constituted state government, in this case the old charter government.

His argument in that case paralleled his position against nullification. A single state could not nullify federal law; certainly it could not secede. Therein lay revolution. A dissatisfied state’s recourse against federal power was to follow the procedures set out in the Constitution and persuade the other states to require Congress to call a constitutional convention. There remained, Webster acknowledged, the ultimate right to remove by whatever means a tyrannical government; but this was a right of the American people, not of a particular state government.

Near the end of Webster’s political career occurred yet another spasm in American politics over slavery. In the debate over the Compromise of 1850, crafted by Clay and pushed through the Senate by Stephen Douglas of Illinois, the ailing Calhoun had his speech in opposition to the Compromise read to his colleagues. Three days later, Webster spoke in support of the measure. He began, “I wish to speak today not as a Massachusetts man, nor as a northern man, but as an American ….” He dismissed the very notion of “peaceful secession” advocated by Calhoun. Secession was revolution, and revolution is violent. However, despite his personal opposition to slavery, he criticized the abolitionists and acknowledged the South’s right to have the federal fugitive slave law diligently enforced. This aroused a wave of opposition to him. He resigned his Senate seat within a few months to become, once more, Secretary of State.

During his two-year stint as Secretary of State, he vigorously enforced the new Fugitive Slave Law. His final campaign for President failed at the Whig Party convention. By then, he was also increasingly debilitated from cirrhosis of the liver. He never saw the result of the election, because he died in October, 1852, the immediate cause being head injury suffered from falling off a horse.

Webster’s legacy as a “Union” man is deserved. Still, as a successful politician, his positions changed dramatically over time and, unsurprisingly, tracked the material interests of his constituents. Technological innovations, structural changes in economic relations, settlement of new lands, and the need to assimilate diverse ethnic and religious immigrants all favored development of a national ethos. New England’s and the North’s commercial and industrial rise aligned with that development. Still, Webster’s speeches helped create the political framework for these amorphous forces, and his flair for oratory made this framework intellectually and emotionally accessible to the people. After the nullification debates, in particular, “Union” was no longer defended as just a useful arrangement to assure liberty from foreign domination and to promote harmonious interaction among state sovereignties. It became, instead, the idea of the American republic made real.

There is one more noteworthy point. Despite Webster’s inclination toward political order, his innate conservatism also made him cognizant of human fallibility and skeptical of those who would exercise political power. In a speech in 1837, he issued a warning free citizens must never forget, “There are men, in all ages, who mean to exercise power usefully; but who mean to exercise it. They mean to govern well; but they mean to govern. They promise to be kind masters; but they mean to be masters.”

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

 

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Daniel Webster, alongside Henry Clay and John C. Calhoun, was a member of the “Great Triumvirate,” that remarkable group of speakers whose grand and widely-circulated speeches enlivened debates in the Senate and electrified the American people. Webster, the “Great Orator,” in the words of the historian Samuel Eliot Morison, “carried to perfection the dramatic, rotund style of oratory that America then loved.” Webster is primarily known for his role in the Senate during the tumultuous debates over the nullification controversy, the Texas annexation and resulting Mexican War, and the emerging crisis over slavery and the Compromise of 1850. However, he also served as Secretary of State under Presidents William Henry Harrison and John Tyler, and, subsequently, under President Millard Fillmore. He ran unsuccessfully for the Whig Party’s nomination for President in 1836, 1848, and 1852. Of more lasting practical effect even than his Senate speeches were Webster’s numerous appearances as an advocate in great constitutional cases before the Supreme Court.

Webster was born in 1782 in New Hampshire. Through his parents, his education at the Phillips Exeter Academy and Dartmouth College, and his association with the lawyers for whom he clerked, he was steeped in an upbringing that admired Federalist republicanism. That adherence to Federalist principles has often been used to portray Webster as a “nationalist,” a point that he himself used to political advantage, though he called himself a “Union” man. Yet, it is more illuminating to explain Webster as a politician dedicated to the political and economic interests of his section, New England. As those interests changed, so did the political program of the Federalist Party and its eventual successor, the Whigs. And so did Webster. He “evolved” from general skepticism about policies that strengthened national sovereignty against state powers in his tenures in the House of Representatives between 1813 and 1817 (for New Hampshire) and 1823 and 1827 (for Massachusetts) to ringing endorsements of such policies after entering the Senate in 1827. As in a mirror, one sees Webster’s frequent nemesis, Calhoun, move contemporaneously in the opposite direction, from ardent nationalist to foremost theoretician of state sovereignty.

Thus, in 1814, Webster could rail against the abortive proposal by Secretary of War James Monroe to draft 100,000 men to shore up the army during the militarily adverse and financially calamitous War of 1812:

“The operation of measures thus unconstitutional & illegal ought to be prevented, by a resort to other measures which are both constitutional & legal. It will be the solemn duty of the State Government to protect their own authority over their own Militia, & to interpose between their citizens and arbitrary power. These are among the objects for which the State Governments exist; & their highest obligation binds them to the preservation of their own rights & the liberties of their people….Both [my constituents] and myself live under a Constitution which teaches us, that ‘the doctrine of non-resistance against arbitrary power & oppression, is absurd, slavish, & destructive of the good & happiness of mankind.’ With the same earnestness with which I now exhort you to forebear from these measures, I shall exhort them to exercise their unquestionable right of providing for the security of their own liberties.”

This is a far cry from his famous second reply to Senator Robert Hayne in 1830 on the occasion of the “Great Debate” over South Carolina’s nullification of the Tariff of 1828. There, Webster declared, “Liberty and Union, now and forever, one and inseparable!” It was Hayne who on that later occasion appeared to recall the Webster of 1814, with “Liberty—the Constitution—Union.”

Six days after that 1814 speech, the Hartford Convention met. While its final product did not call for immediate secession by New England over the economic difficulties caused by “Mr. Madison’s War,” the topic was discussed and tabled for the future. Webster did not attend that gathering, but had raised secession in his Rockingham Memorial, a remonstrance against the War of 1812 sent to Madison by a state convention of Federalists. The Memorial did not directly urge secession but threatened, “If a separation of the states shall ever take place, it will be on some occasion, when one portion of the country undertakes to control, to regulate and to sacrifice the interest of another.” The Calhoun of the 1830s might have said this with more systematic theoretical grounding, but he would heartily concur with the message.

In similar manner, Webster opposed the tariff of 1816 as being not for the sound and constitutional purpose of raising revenue, but for the improper object of protection of industry. He likewise opposed the tariff of 1824. Yet, by 1828, with the national debt dwindling, he supported the “Tariff of Abominations,” because it protected New England’s textile industry. By 1833, he even opposed Henry Clay’s proposed tariff reduction, because to compromise was to embolden Southerners to threaten nullification and disunion. Perhaps in self-reflection, Webster declared, in another context, “Inconsistencies of opinion, arising from changes of circumstances, are often justifiable.” Calhoun, meanwhile, had supported the 1816 tariff because, he claimed, it was a constitutional revenue measure, not a protectionist one. By 1828, Calhoun opposed the tariff because it hurt the South economically.

The early Webster also opposed Henry Clay’s federally-financed “American System” of internal improvements to develop settlement of the West (which Calhoun initially supported). Once again, by 1828, Webster supported Clay’s plans, with Calhoun now opposed.

One area of great policy dispute during the first half-century of the Republic was the congressional chartering of the Bank of the United States. In contrast to his “flexibility” in other matters, Webster was steadfast regarding the Bank. He was a “sound money man,” who eulogized Alexander Hamilton for his vision about the First Bank, chartered in 1791, and the stability it brought to American finance and the public credit: “He smote the rock of the national resources, and abundant streams of revenue gushed forth. He touched the dead corpse of Public Credit, and it sprung upon its feet.”

To restore that stability after the humbling experience of the War of 1812, Webster supported Calhoun’s initiatives to charter the Second Bank in 1816 and Clay’s move to re-charter it in 1832. He also vigorously opposed Jackson’s anti-Bank policies, not just because they were Jackson’s as much as he feared the economic dangers from irresponsible issuance of paper money by undisciplined local banks. “Of all the contrivances for cheating the laboring classes of mankind, none has been more effective than that which deludes them with paper money,” he charged during the debate on re-chartering the Second Bank. Contemplating the demise of the Second Bank following Jackson’s veto of the re-charter bill, Webster mourned, “We are in danger of being overwhelmed with irredeemable paper, mere paper, representing not gold nor silver; no sir, representing nothing but broken promises, bad faith, bankrupt corporations, cheated creditors and a ruined people.” At times, he was branch director, legal counsel on retainer, and advocate in Congress for the Bank. His penchant for luxurious living beyond his means and his financial speculations and gambling habit caused him to be frequently in debt and led to conflicts of interest, not just with the Bank.

His political support for the Bank was felicitously aligned with his constitutional argument in one of the most significant cases about Congressional power, McCulloch v. Maryland in 1819. Webster represented James McCulloch, the branch cashier (a key officer) of the Bank. The Court held that a state tax on a federally-chartered instrumentality was unconstitutional. In a wide-ranging argument, almost entirely adopted point-for-point by Chief Justice John Marshall, Webster claimed broad federal power to enact laws that were useful or convenient to achieve the objectives expressly delegated to Congress in the Constitution. Webster’s argument tracked Hamilton’s in the debate over the constitutionality of the original Bank. It was startlingly different than the constitutional argument about federal power Webster had made five years earlier in his speech against military conscription, “To talk about the unlimited power of the Government over the means to execute its authority, is to hold a language which is true only in regard to despotism. The tyranny of Arbitrary Government consists as much in its means as in its ends … All the means & instruments which a free Government exercises, as well as the ends & objects which it pursues, are to partake of its own essential character, & to be conformed to its genuine spirit.”

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

 

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Relying primarily on the Virginia and Kentucky resolutions of 1798 and 1799 against the federal Sedition Act, Calhoun defended the right of a state to interpose itself between its citizens and federal authority and, as Thomas Jefferson had made plain, to nullify the law within its territory. Echoing sentiments that had been expressed by many others since the debates over the ratification of the Constitution, Calhoun posited that the charter was a compact among the states. Addressing the argument that the Constitution had been adopted by the people of the United States, Calhoun pointed out that it had been the people in conventions in their respective states, and that the ratification by the people in one state bound only them. The general government was not a party to the compact, but its creature. Therefore, it could not be the judge of its own powers, whether done through the agency of the Congress, the President, or the Supreme Court. The general government had the character of a joint commission that oversaw and administered the collective interests of the states.

Significantly, Calhoun incorporated the major contribution of 18th century Americans to political theory, the role of the constitutional convention. An act of such foundational character as nullification cannot proceed from mere legislative action. Sovereignty lies in the people, not the government, and an ultimate act of political association or disassociation requires action by them. Since it is not realistic for the people as a whole to gather, such action has to be undertaken by a special body elected and assembled for only that purpose. If the people’s convention votes to nullify the law, the legislature might enact an ordinance of nullification. It is then incumbent on the general government to resolve the conflict peaceably by referring the matter, “as in all similar cases of a contest between one or more of the principals and a joint commission or agency … to the principals themselves,” that is, to a constitutional convention as provided in Article V of the Constitution. If that convention and the subsequent vote of the states supports the nullifying state, fine; if not, that state then, on further reflection, can rescind its nullification or vote to secede from the Union.

It is important to note that a state has no right to secede simply because it changed its mind about belonging to the Union. The Union is more than a contract, it is a political partnership with an existence outside the individual partners. However, if there has been an alteration of the compact, to which the state has not consented, “constitutional secession” is permitted. That was the extent to which Calhoun justified secession. Beyond that lay revolution. As historian Marco Bassani has explained, at that point, “secession would not be impossible, but would amount to a Lockean appeal to Heaven; such cases would arise, not from the nature of the Union, but from the right of self-government of all communities of free human beings. In essence, a ‘pre-political’ right of secession exists, shading over into the right of revolution; there are no significant differences on this point between Webster, Calhoun, Jackson, and the entire American tradition. Institutionalization of power does not eliminate the people’s right to rebel against a despotic government.” Webster himself characterized the address as “the ablest and most plausible, and therefore the most dangerous vindication” of the nullifiers’ argument.

Ultimately, the political application of Calhoun’s nullification theory played itself out in the Henry Clay-crafted compromise over the tariff and the political theater between President Andrew Jackson and the South Carolina state government. The South Carolina convention’s nullification vote over the Tariff of Abominations was followed by Jackson’s threat to use the military to insure compliance with federal law as authorized in the Force Act, which was followed by the convention’s rescission of its tariff nullification after Clay’s compromise, which was followed by its nullification of the Force Act. The tariff issue was allayed, but many understood that to be merely palliation of a symptom, not cure of the ailment. Jackson wrote that the real issue was disunion and that the next symptom would be the struggle over slavery. Calhoun, the moderate, and Rhett, the fire-eater, concurred.

After service as Senator from 1832 to 1844, an abortive campaign for President in 1844, and an interlude as Secretary of State from 1844 to 1845, Calhoun returned to the Senate from 1845 until his death in 1850. He devoted considerable time to further systematic development of his political theory in the Disquisition on Government and the Discourse on the Constitution and Government of the United States. As other political theorists had done, Plato and Cicero coming to mind, Calhoun delved into theoretical exploration of the nature of man and society in the former and into more concrete and empirical application of his theory to American political experience in the latter.

As death approached, Calhoun roused himself once more to a defense of his culture and class. He wrote a blistering speech against Henry Clay’s Compromise of 1850 and the admission of California. Too frail to deliver the speech himself, his friend Senator James Mason of Virginia read it for him. The valedictory’s topic was somber and brooding, a rhetorical reflection of Calhoun’s physical appearance portrayed in contemporary drawings and photos: The stronger (North) would not be deterred from its subjugation of the minority (South); compromise was no longer possible; secession was in the air. He assured the North, “[W]e shall know what to do, when you reduce the question to submission or resistance.” To a friend, he predicted that disunion would follow within twelve years.

Calhoun died shortly thereafter, on March 31, 1850. Because of his strong defense of slavery–he went so far as to describe it as a positive good–and the historical current of nationalism over the past two centuries, Calhoun’s works have not resonated in public debate. Still, his has been described as the only authentic and systematic American political theory, a sentiment that readers of Senator John Taylor of Caroline’s examination of American agrarian republicanism might challenge. It is fair to say, however, that Calhoun’s approach to consent of the governed, as expressed through concurrent majorities of the whole and of its affected constituent minorities, presents a relevant model for peaceful resolution of fundamental political questions that well preserves both “Liberty and Union” in a large, diverse, and divided country.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

 

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For nearly the first half of the nineteenth century, three men dominated the debates over the great issues of the day. They were the “Great Triumvirate,” Henry Clay of Kentucky, Daniel Webster of Massachusetts, and John C. Calhoun of South Carolina. Each joined the Congress between 1806 and 1813, each served in the Cabinet as Secretary of State, and each indulged his ambition to become President in at least three campaigns. Clay came closest, with three party nominations. Calhoun, however, gained the highest honor. He served as Vice-President for nearly eight years with two different Presidents, John Quincy Adams and Andrew Jackson, one of only two men to do so.

John C. Calhoun was born on March 18, 1782, in the South Carolina Piedmont. After preliminary schooling, he attended Yale University, graduating in 1802. He spent the following year studying law at the then-preeminent law school in the United States, the pioneering Litchfield Academy of Judge Tapping Reeve in Connecticut. Upon returning to South Carolina, Calhoun practiced law in Charleston. As were several other Southern states, South Carolina was divided politically between east and west, the Tidewater and the Piedmont, with the former inclined towards Federalism and the latter towards Jeffersonian Republicanism. Because of political manipulation, the eastern minority controlled the state in its early years, and South Carolina had approved the Constitution by a 2-1 margin, despite the losing side representing a majority of the state’s population. Charleston was as Federalist and nationalist as any city in the North. However, times were changing. Within a generation, the state would become the leader of Southern sectionalism and, after another generation, the first to secede from the Union in 1860.

The state’s political and constitutional metamorphosis is reflected in Calhoun’s own philosophic journey. Yet, despite his well-earned reputation as a leading intellectual figure of the “South Carolina Doctrine” regarding the nature of the Union and the rights of the states, Calhoun always seemed to lag behind his state’s political evolution. He was never the firebrand driving the train of revolution, but always the brakeman seeking to slow it down. He was never a committed political partisan, instead wandering from faction to faction and party to party and best described as he saw himself, an independent for whom broader principles were a better guide than fleeting political association. That said, he also used this willing flexibility in political affiliation to maximize his personal standing and that of his state and section.

Calhoun was influenced by the Federalism of Yale’s president, Timothy Dwight, and of Judge Reeve. While it is difficult to assess the extent to which any particular intellectual mentor or personal experience affected Calhoun’s later views, it was there that he first heard systematic defense of the states’ rights doctrine. The Virginia and Kentucky Resolutions of 1798 against the Sedition Act clearly influenced his later doctrinal analysis. But those were events from his youth, whereas he lived the Federalism of his teachers who were reacting against the political revolution of the election of 1800 that saw Jefferson become President and consign the Federalist Party to a diminishing regional status.

Within a few years of his return to South Carolina, he was elected to the state legislature. In 1811 he entered the House of Representatives, where he became a “war hawk” who fervently backed the War of 1812 against Great Britain. That war saw the hardening of states’ rights views among the politically disaffected New England Federalists whose sea-faring and commercial communities were ravaged economically by the British naval blockade. Their politicians, including Daniel Webster, denounced the war and praised their states’ resistance to it. Eventually, their opposition coalesced into the Hartford Convention of 1814, which debated what forms of opposition states might undertake against unconstitutional federal laws. Secession, while not officially sanctioned, was put on the table for future discussion, should lesser measures fail. Calhoun and others later would use the Hartford Convention as a precedent to hurl at Northerners who attacked similar Southern sentiments.

In the meantime, chastened by the disastrous impact the war had on the financial stability of the country, Calhoun supported numerous measures that would have made Alexander Hamilton and other earlier Federalists proud. He introduced the bill to charter the Second Bank of the United States in 1816. He was a strong supporter of House Speaker Henry Clay’s “American System” of internal improvements directed by the federal government, which fit not only the South’s political alliance with the West, but also Calhoun’s (failed) dream to have South Carolina become a textile manufacturing center that would compete with Massachusetts. Most awkward for Calhoun and the South Carolinians for their anti-tariff posture a decade later, Calhoun led the move to enact the tariff of 1816 to pay off the government’s debts and reestablish solid public credit.

His political ambition was soon focused on executive office. Calhoun had been shocked by the generally poor performance of the militia during the War of 1812, as well as by what he perceived as the poor management of the War Department. In 1817, he began his tenure as Secretary of War, in which he supported a strong navy and, again in contrast to traditional republicans, a standing peace-time army. His success boosted his chances for the Presidency, and, in another ironic twist, a group of Northern congressmen placed his name in nomination for that office in 1821. He undertook a more concerted campaign in 1824, which was derailed in part because Southern support went to the more states’ rights oriented William Crawford of Georgia. Indeed, due to his perceived nationalism, Calhoun could not even get the support of his own state’s legislature, which, at that time, still selected presidential electors. Calhoun then turned his sights on the vice-presidency, and the Electoral College overwhelmingly selected him.

It was at that point that Calhoun’s determined nationalism began to give way over the next decade to an equally committed sectional loyalty. South Carolinians, who had suffered severely from the economic depression that followed the Panic of 1819, in increasingly radical sentiments opposed various tariffs enacted in the 1820s. Up-and-coming politicians such as Congressman George McDuffie and state representative Robert Barnwell Rhett (Calhoun’s successor as Senator in 1850 and the leader of what came to be known as the “Fire-Eaters”) campaigned not just for repeal of the tariffs, but for more active opposition to federal power.

The final blow was the massive “Tariff of Abominations” in 1828. Rebuked by other Southern states and unable to get a united front against the measure, South Carolina went on her own. Nullification became a respectable political topic. The most voluble among local politicians went further. Thus, Rhett, emulating Samuel Adams’s rhetoric during the struggle for independence from Britain, sounded the revolutionary clarion:

“But if you are doubtful of yourselves–if you are not prepared to follow up your principles wherever they may lead, to their very last consequence–if you love life better than honor,–prefer ease to perilous liberty and glory; awake not! Stir not!–Impotent resistance will add vengeance to your ruin. Live in smiling peace with your insatiable Oppressors, and die with the noble consolation that your submissive patience will survive triumphant your beggary and despair.”

Alarmed at such radicalism, Calhoun anonymously penned his Exposition and Protest against the Tariff of 1828, at the request of leaders of the state legislature. It accepted the constitutional power of the general government to enact tariffs to raise revenue–thereby glibly endorsing Calhoun’s support for the tariff of 1816–but not for protection of local industry. It further set down the basics of Calhoun’s theory of nullification, that a state retained its authority to veto unconstitutional federal laws. While the pamphlet’s authorship soon became known, Calhoun and the state’s senators, Robert Hayne and William Smith, publicly opposed or were non-committal about undertaking nullification. As a result, the movement stalled.

However, the radicals defeated the moderates in South Carolina’s elections in late 1830. Nullification leader James Hamilton was elected governor, and Smith was replaced by the more radical Stephen Miller. Calhoun, struggling to control the anti-tariff movement in the state, published his foundational Fort Hill Address on July 26, 1831. There, he systematically laid out the constitutional case for nullification. Calhoun acknowledged that within its delegated powers, properly exercised, the general government was immune from state interference. However, the same principle applied to the states’ reserved powers, reciprocally immune from ultra vires acts of the general government. The problem was what to do when a conflict arose.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

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On January 26 and 27, Webster returned fire. In a speech equally aroused as Hayne’s, and laced with historical references, constitutional argument, and heavy doses of sarcasm, Webster rejected Hayne’s attacks and painted a picture of an optimistic nationalism that stood in stark contrast to Hayne’s defensiveness.

Relying on only a few notes, and using his sonorous voice to full effect, Webster spoke hour after hour. It was clear that the matter had become personal for Webster, as it earlier had for Hayne. He devoted considerable energy to chastising Hayne for alleged violations of decorum in Hayne’s speech. On substance, he listed numerous votes by the East in favor of the West. He extolled the South Carolinians’ support for tariffs and internal improvements during the 1810s, using their own votes and speeches to make his point about their opportunistic reversal and baseless objections to those policies in the 1820s.

However, most of his effort was directed at defending the Union and rejecting Hayne’s vision of the country:  the South Carolina Doctrine was an illegitimate form of revolution; the Constitution’s source was the people, not the States severally; the general government was one of limited powers, but the Supremacy Clause of the Constitution made that government’s laws immune from state interference; the Constitution placed in the Supreme Court the power to patrol the lines between the general government’s specified powers and the reserved powers of the several States; the States had lost crucial incidents of sovereignty, such as making war or coining money; the Constitution was a government, not a treaty, so Hayne’s analogy to judicial incompetence to decide cases between national sovereigns was inapt. Using language later popularized through Abraham Lincoln’s Gettysburg Address, Webster declared, “It is, Sir, the people’s Constitution, the people’s government, made for the people, made by the people, and answerable to the people.” The remedy for unconstitutional action lay not with a single state, but with the people as a whole, through the legislative process, by appeal to the judiciary, or through a constitutional convention. Ultimately, in case of “intolerable oppression…the people might protect themselves, [even] without the aid of the State governments” (i.e. a right of revolution).

Reaching the oration’s climax, Webster implored,

“When my eyes shall be turned to behold for the last time the sun in heaven, may I not see him shining on the broken and dishonored fragments of a once glorious Union; on States dissevered, discordant, belligerent; on a land rent with civil feuds, or drenched, it may be, in fraternal blood! Let their last feeble and lingering glance rather behold the gorgeous ensign of the republic, now known and honored throughout the earth, still full high advanced, its arms and trophies streaming in their original lustre, not a stripe erased or polluted, nor a single star obscured, bearing for its motto, no such miserable interrogatory as ‘What is all this worth?’ nor those other words of delusion and folly, ‘Liberty first and Union afterwards’; but everywhere, spread all over in characters of living light, blazing on all its ample folds, as they float over the sea and over the land, and in every wind under the whole heavens, that other sentiment, dear to every true American heart,–Liberty and Union, now and forever, one and inseparable!”

Hayne immediately rose once more to speak at length. In his second speech, Webster had accused the South of wanting to replicate the efforts of the discredited war-time Hartford Convention. Hayne contemptuously rejected the “advice.” “[W]hen South Carolina shall resort to such a measure for the redress of her grievances, let me tell the gentleman that, of all the assemblies that have ever been convened in this country, the Hartford Convention is the very last we shall consent to take as an example; nor will it find more favor in our eyes, from being recommended by the Senator from Massachusetts. Sir, we would scorn to take advantage of difficulties created by foreign war, to wring from the federal government redress even of our grievances.”

There followed a lengthy exposition of the “South Carolina Doctrine.” Hayne examined in fine detail the founding of the country, the basis of government under the Constitution, and the nature of dual sovereignty in our federal system. Revisiting contentions made numerous times in various forums over the previous half-century, Hayne insisted that the Union is a compact among the people of the states. Both–the Union and the States–retain their sovereignty, and neither can be the judge over the other. Congress cannot be a judge in its own cause over the extent of its own powers, and the federal Supreme Court can no more assert jurisdiction to act as umpire than it can in a dispute between sovereign nations. The Constitution was established to constrain the majority. Governing powers were separated and distributed. Congress was given only limited powers. If Congress ventures beyond those powers, their actions are void. States have the power to declare when such violations have occurred and, as the 10th Amendment confirms, have never surrendered their plenary power “to interpose for arresting the progress of evil.” Appealing to the respect given to James Madison and Thomas Jefferson, Hayne used their Virginia and (revised) Kentucky Resolutions against the Alien and Sedition Acts to justify also nullification.

What about resolving inevitable conflicts? Starting with a statement by Jefferson from 1821, Hayne placed the onus on Congress to call a convention and have the disputed matter addressed by constitutional amendment. The requirement that three-fourths of states must approve such an amendment provided enough protection to disaffected minorities without holding the country hostage to every whimsical objection one state might make.

Seizing on Webster’s ringing conclusion in the second speech, Hayne needled him, “The gentleman is for marching under a banner studded all over with stars, and bearing the inscription Liberty and Union. I had thought, sir, the gentleman would have borne a standard, displaying in its ample folds a brilliant sun, extending its golden rays from the centre to the extremities, in the brightness of whose beams, the ‘little stars hide their diminished heads.’ Ours, Sir, is the banner of the Constitution, the twenty-four stars are there in all their undiminished lustre, on it is inscribed, Liberty–the Constitution–Union….”

Webster then offered a brief rebuttal on the salient issue of the nature of the Union. He presented a summary of his earlier argument, but added that even Hayne’s compact theory would not permit unilateral action by one state. Instead, it would require decision by all, as under the Articles of Confederation. The debate had laid bare the fundamental contrast between the two conceptions of the Union, and its spectacle had driven the issue into the public consciousness.

Webster’s words are better known today than Hayne’s. Even had the armed conflict of the following generation over slavery and the nature of the Union turned out differently, that might yet be the case. Hayne argued on behalf of an aristocratic social and classic republican political order tied to the soil and local custom. That order could not survive the material dynamic of the Industrial Revolution, the economic rise of the capitalist class, and the influx of immigrants who lacked an intellectual tether to the Founding and who had loyalties to the nation to which they were drawn rather than to the particular states in which they happened to settle. Nationalism was on the rise, and it was Webster who extolled its benefits. Webster firmly tied Union to the Constitution itself, and evoked the imagery of its presumed majesty. Opposition to that Union by a single state was cleverly and clearly branded treason by Webster’s stark portrait of how nullification would inevitably result in armed conflict.

That said, Hayne’s exposition of states’ rights–or, more starkly, each state’s rights–may have lost its contest for constitutional dominance, but it has not been defeated as an idea. Even now, cities and states seek to limit traditional federal power over immigration and other aspects of national sovereignty by interposition and nullification. A pertinent example is California’s “sanctuary state” policy to frustrate federal enforcement of immigration laws. As the country’s sharp division into inflexible factions and identity groups continues to harden, the republicanism that rests on compromise and accommodation becomes increasingly difficult to sustain on a national scale. The ever-growing reach of the federal government and its metamorphosis into the “consolidated government” that Hayne feared and Webster dismissed is likely to renew interest in theories that–while they preserve union–might provide a political safety valve short of armed action against federal laws that counter strong local customs and deeply-held beliefs of a portion of the Union. The speculations of Hayne–and more fundamentally, John C. Calhoun, the great intellectual exponent of this constitutional vision–may well rise again to prominence. One doubts, however, that in an age when 140-letter “tweets,” sensationalist press releases, and “hashtags” count as substantive political discourse, we will soon see the likes of the Hayne-Webster debate.

Reference:

Webster-Hayne Speeches: http://oll.libertyfund.org/titles/webster-the-webster-hayne-debate-on-the-nature-of-the-constitution-selected-documents

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

 

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Over the course of approximately a week in late January, 1830, a debate occurred in the United States Senate that historians consider the greatest ever in that chamber. Before a gallery packed with listeners, under the animated gaze of Vice-President John C. Calhoun, Senators Robert Hayne of South Carolina and Daniel Webster of Massachusetts waged an oratorical battle. Astonishing is that it was precipitated by a skirmish over an intellectually rather dry, though politically charged, topic–the sale of public lands in the American West to settlers.

The previous month, Senator Samuel Foot of Connecticut had proposed that Congress investigate the desirability of curtailing the sale of public lands by the federal government. Senator Thomas Hart Benton of Missouri, representing the Western interests, denounced the proposal as another attempt by Eastern economic interests to prevent the migration of workers from their states. From his perspective, keeping those workers tied down in their locales suppressed the cost of labor and increased the industrialists’ profits. The Westerners wanted free migration and federally-financed “internal improvements” and the economic and political benefits that would accrue from them.

The country was increasingly riven by sectional tension, not just the familiar one between North and South, but, as significantly, between Northeast and West. Gone, it was lamented, was the ethos of sectional compromise forged by the exigencies of the Revolutionary War. Western politicians, such as Benton, sought to increase their political importance by aligning themselves with one section’s interest against the other. On this particular matter, as comically described by the historian Samuel Eliot Morison, Benton “summoned the gallant South to the rescue of the Western Dulcinea, and Senator Hayne of South Carolina was the first to play Don Quixote.”

Hayne was an accomplished lawyer, speaker, and writer. He was well-educated, with handsome features, and unfailingly polite. He was elected to the Senate at 31, barely over the minimum age, a fitting champion for his Southern aristocratic class. His first speech in the debate, on January 19, chastised the Northeast for its protectionism of nascent industries and linked that policy to Benton’s claim about the industrialists’ obstruction of Western migration.

Hayne’s attack dovetailed with increasingly determined and desperate Southern opposition to the national tariff policy during the 1820s and 1830s. Import duties on European finished goods, such as textiles, protected the weavers of New England, but increased the price of such goods to consumers. Moreover, these duties invited British retaliation against American commodities, including cotton, by tariffs and by expanded reliance on alternative suppliers, such as cotton growers in Egypt and India.

Thus, the “Tariff of Abominations” of 1828, was so economically damaging and politically volatile, that a Member of Parliament, William Huskisson, delivered a speech that laid out clearly for the South the British policy. Huskisson predicted that the failure to lower the tariff would lead inevitably to Southern secession. Then-Congressman George McDuffie of South Carolina, popularized the “forty-bale theory.” Due to British retaliation, Southern cotton prices fell, and the South became a captive supplier for Northern mills. As well, consumer goods prices were artificially high. In such combination, the tariff so decreased Southern purchasing power that, McDuffie claimed, of every hundred bales of cotton produced, forty went into the pockets of Northeastern industrialists. Many Southerners saw themselves as the victims of a “colonial” policy by Northeastern financial, industrial, and political interests. As Western grievances complemented theirs, it is no wonder that Benton’s charge resonated with Southerners.

In a historical irony, the protective tariff of 1816, which got protectionism rolling, was the work of two South Carolinians, one of them then-Congressman John C. Calhoun. But by 1830, with the Tariff of Abominations in full force, Calhoun was Vice-President and was crafting his theories of nullification and concurrent majorities, from his 1828 Exposition and Protest to his 1831 Fort Hill Address. Historians have debated the extent to which Hayne’s speeches were merely the words of Calhoun, who, by virtue of his role as the Senate’s president, was debarred from speaking. Clearly the two men, bound by state residency, party affiliation, intellectual prowess, and cultural and class affinity, saw eye-to-eye. Most likely, Calhoun’s philosophical depth and systematic mind helped Hayne craft his argument. But, ultimately, Hayne was his own man.

The next day, Senator Daniel Webster rose to respond. At age 48, he was ten years older than Hayne. Though not as pleasing of looks as his opponent, Webster had his own advantages, physical and intellectual. Morison described him as “the most commanding figure in the Senate…with a crag-like face, and eyes that seemed to glow like dull coals under a precipice of brows….His magnificent presence and deep, melodious voice gave distinction to the most common platitudes; but his orations were seldom commonplace.” Webster was possessed of a powerful intellect, one that, combined with his oratorical talents, had made him a successful lawyer, Supreme Court advocate, and politician. He argued well over 200 cases before the Supreme Court, litigating some of the most important constitutional disputes, such as McCulloch v. Maryland, Dartmouth College v. Woodward, Gibbons v. Ogden, and Luther v. Borden.

Webster rejected Hayne’s attacks on New England’s alleged selfishness and its placing of sectional self-interest over the common national good. Not content merely to parry Hayne’s political attacks and to reject emphatically any suggestion that the Northeast opposed Western development, he broadened the debate to criticize Southern states’ rights doctrines. He charged the South with insufficient gratitude for, and pride in, the Union and denounced recent political movements in South Carolina calling for a state convention to nullify the tariffs. Webster also injected slavery into the debate to play on the discomfort of many Westerners (though not of Senator Benton) over the expansion of the South’s “peculiar institution.” He praised the swift growth of Ohio over the past generation and goaded Hayne about the inferiority of Kentucky, a distinction he attributed to the latter’s protection of slavery. Webster sought to tar Hayne with the spirit of disunion, scolding Hayne’s apparent willingness to “preserve the Union while it suits local and temporary purposes” and to “dissolve it whenever it shall be found to thwart such purposes.” This was particularly galling because Calhoun and Hayne had restrained the nullification efforts of more radical elements in South Carolina led by McDuffie and state leaders, such as Robert Barnwell Rhett.

Hayne was not about to let the gauntlet lie. On January 21 and 25, the South Carolinian went on offense. In a blistering, often sarcastic, and impassioned speech delivered in a tone of “scarcely contained bitterness and rage,” he extolled the South’s patriotism and contrasted it with New England’s conduct during the War of 1812. In the Federalist Party-controlled Hartford Convention of 1814, the (then) five New England states had challenged the constitutionality of federal war policy that harmed them and had pledged to interpose themselves between the federal authority and their people. Webster had not taken part in that gathering, but he was a long-time Federalist Party member and had made anti-war speeches. Hayne launched into a long and detailed indictment of Massachusetts’s perfidies against the United States during that war.

Hayne also vigorously defended the practical aspects of Southern slavery. He urged those, like Webster, who did not understand the conditions in which the system operated, to heed the South’s desire simply to be left alone. Taking the argument to slavery’s opponents, Hayne described the miserable conditions under which free Blacks often lived in Northern cities.

Hayne explained, analyzed, taunted, and exhorted relentlessly over portions of two days. He struck rhetorical and analytical blow after blow. Through it all, Webster sat impassively. To his friends, concerned that Webster had but one night to prepare his response, Webster grimly offered the assurance that he would “grind [Hayne] as fine as a pinch of snuff.”

Reference:

Webster-Hayne Speeches: http://oll.libertyfund.org/titles/webster-the-webster-hayne-debate-on-the-nature-of-the-constitution-selected-documents

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

Click Here to have the NEWEST essay in this study emailed to your inbox every day at 12:30 pm Eastern!

Click Here for the previous essay.

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Guest Essayist: Joerg Knipprath

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In July, 1790, Congress approved removal of the national capital ten years hence from New York City to an as-yet undetermined location on the Potomac River. The vote was the result of a political maneuver to accommodate a matter of much more immediate impact, the realization of Alexander Hamilton’s economic salvage blueprint for the new nation. That blueprint proved crucial to the country’s economic and political fortunes. At the same time, it opened fissures of sectional conflict, constitutional theory, and political partisanship that had remained below the surface, if barely, during the preceding decade.

The impact of the first Secretary of the Treasury can hardly be overstated. His figure loomed so large over the country’s political and economic affairs even after he left office in 1795 that some historians have dubbed the era “Hamilton’s Republic.” It was a felicitous combination of man and office. The evolution of Anglo-American constitutional doctrine that emphatically placed the power over the purse in the legislature put the head of the treasury in a category distinct from the rest of the executive cabinet. Alone among those officers, he was required by law to issue reports directly to Congress. At the time, the Treasury Department had by far more officials in the capital and functionaries in the field than other civilian departments had.

Hamilton played into this role by treating the position as a sort of prime ministership, through which he would oversee the other cabinet heads under the reign and guidance of the president, as well as act as a liaison between the executive and legislative branches. The childless President George Washington, for whom Hamilton had become a surrogate son, abetted this stance. Washington not only typically took Hamilton’s side in political disputes, but also gave him tasks and requested his opinions in matters outside the Treasury Department’s domain.

Following a meteoric rise that saw him form his own New York militia artillery company at age 19, become adjutant to General Washington with the rank of lieutenant colonel at 20, command a critical assault at the Battle of Yorktown at 24, and found the Bank of New York at 27, Hamilton became Secretary of the Treasury at 32. In September, 1789, Congress requested that he prepare a series of reports on the credit of the United States. Hamilton delivered his recommendations to Congress in January, 1790.

The “Report on the Public Debt” proposed three broad policies: to fund the national debt (including interest payments in arrears) at par through 6% bonds, to assume payment of the remaining state war debts, and, in a separate report in January, 1791, to create a central banking institution akin to the Bank of England. Each policy engendered vocal opposition. As to the first, the debt was owed about one-third to European creditors. The rest was owed to Americans, typically merchants who had supplied goods and individuals who had supplied service, typically military, and been paid with these debt certificates. The value of the debt instruments had decreased significantly due to currency devaluation and the long-running uncertainty about the government’s ability to repay them at all. As a result, wealthy individuals had purchased much of the outstanding debt at deep discount from those holders who, over the years, needed cash. Many denounced Hamilton’s plan as a wealth transfer from the middle and lower classes, who would have to pay taxes needed to retire the debt, to the upper-class “speculators.” Their criticisms were not entirely unfounded, as Hamilton made clear in various statements. He believed that the success of the United States ultimately lay in tying the self-interest of the leading members of the community to the nation rather than their states. Nothing would do so more than to align their economic future with that of the general government and to direct their energy to expanding the country’s commerce and manufacturing. Repaying their financial bonds at par would, in turn, create personal and class bonds that would transcend state loyalties.

As to the second, Virginia and some other states objected because they had paid down, or even eliminated, their war debts through prudent financial policies. Those states saw the debt assumption by the federal government as rewarding profligacy and irresponsibility by debtor states and balked at the idea that their own citizens would now be taxed to cure the results of that mismanagement. Others viewed the assumption as creating a perception of a “bail-out” of abject states by a benevolent and efficient general government. Thus, they rejected the policy as a dangerous surrender of state power.

The establishment of the proposed central bank proved to be the most controversial of all, both as to the particular policy and the more general constitutional questions it raised. The Bank of the United States would be funded through the sale of stock, with 80% of the initial shares bought by private investors and the rest by the general government. Directors of the Bank would be selected in like proportion by the private and government interests. The Bank would act as a depository for government funds, and the government would draw on its account to pay its bills. Operating in various cities, the Bank’s prestige would attract private deposits and stock purchases throughout the nation. Foreigners also could buy stock but could not vote. Further, the Bank would extend credit to state banks under terms that would allow it eventually to control the national money supply as needed for economic stability. Through loans for large commercial or productive undertakings, the Bank could promote economic growth and internal improvements. Finally, its notes, backed by a reserve of gold and silver and circulated nationally, would provide a safe and effective medium of exchange.

Profits from its loans would be paid in dividends as a return on investment for the stockholders. The government’s share would be used to help pay interest and principal of all outstanding public debt. The Bank’s charter would expire after twenty years unless renewed.

The project was not novel. Hamilton had proposed such a system to the Confederation’s powerful Superintendent of Finance, Robert Morris, in 1781. Morris, who entertained similar ideas, set up the Bank of North America, chartered by the Congress under the Articles of Confederation. However, doubts were raised about that bank’s charter, because the Articles did not expressly confer such a power on Congress, and all powers not expressly given to Congress under that charter were reserved to the states. Hence, Morris also obtained a state charter for that bank from Pennsylvania. Four years later, the Pennsylvania legislature repealed that charter. Although the state reversed itself again in 1787, the damage was done. The vagaries of state legislatures undermined the very concept of a central bank. At the same time, the salutary effects on national finance demonstrated by that bank in its first several years affirmed Hamilton’s beliefs in the project. Hamilton himself had written about the issue of the public debt and generally admired Morris’s management of the matter. The admiration was reciprocated. President Washington first offered the Treasury position under the new government to Morris, who declined and recommended Hamilton–not that Washington needed much persuasion.

As with the Bank of North America, arguments quickly arose that Congress lacked the power to charter the Bank of the United States. After all, the Philadelphia Convention had rejected James Madison’s proposal to allow Congress to charter banks and corporations. Some had opposed this as a dangerous grant that would lead to a “consolidation” of the government in Congress. Others, looking at traditional English chartering of corporations, opposed it as unnecessary, because such a power already was inherent in sovereignty.

Faced with the controversy, Washington asked Madison, who served as a close adviser to the President even as he became a leader in the House of Representatives, to draft a veto message against the Bank Bill. In two speeches before the House, Madison opposed the proposal. He asserted that Congress could only exercise powers expressly granted or those that were a mere incident “evidently and necessarily involved in an express power.” Washington also submitted the issue to Attorney General Edmund Randolph and Secretary of State Thomas Jefferson. All three of his fellow-Virginians assured the President that the bill was unconstitutional in that Congress lacked the express authority to charter the Bank. Further, Congress could not rely on “implied” powers.

Jefferson delivered his opinion on February 15, 1791. He rejected arguments that the proposal could be upheld under Congress’s powers to tax, borrow, or regulate commerce. More significantly, he read both the “general welfare” language and the “necessary and proper” clause narrowly. The former was not a separate grant, but one tied to the taxing and spending power for Congress to spend only for the objectives listed in Article I, Section 8, of the Constitution. As to the latter, “necessary” did not mean mere “convenience,” but only “those means without which the grant of the [express] power would be nugatory.” Otherwise, “there is not one [non-enumerated power] which ingenuity may not torture into a convenience in some instance or other, to some one of so long a list of enumerated powers. It would swallow up all the delegated powers, and reduce the whole to one phrase,” namely, to give Congress “power to do whatever would be for the good of the U.S. … or whatever evil they pleased.”

Hamilton quickly drafted a 15,000-word response, which he delivered on February 23, 1791. He urged a flexible interpretation of Congress’s powers because of the “general principle [that] is inherent in the very definition of government … [t]hat every power vested in a government is in its nature sovereign, and includes, by force of the term, a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power, and which are not precluded by restrictions and exceptions specified in the Constitution ….”

As to the “necessary and proper” clause, it was but a restatement of the “implied powers” principle and defined the means the government might choose to achieve its constitutionally authorized objectives. He rejected Jefferson’s restrictive interpretation as unprecedented and radical. The proper constitutional test, he wrote, was, “If the end be clearly comprehended within any of the specified powers, and if the measure have an obvious relation to that end, and is not forbidden by any particular provision of the Constitution, it may safely be deemed to come within the compass of the national authority.” Within those broad boundaries, all discussions were about expediency, not right.

Jefferson, Madison, and Randolph lost the argument when Washington signed the Bank Bill. Jefferson sarcastically characterized Hamilton’s views in a letter to Senator Edward Livingston in 1800, after Congress chartered a mining company.  He derided the exercise by comparing the constitutional claims of the law’s supporters to a popular nursery rhyme: “Congress are authorized to defend the nation. Ships are necessary for defense; copper is necessary for ships; mines, necessary for copper; a company necessary to work the mines; and who can doubt this reasoning who has ever played at ‘This is the House that Jack Built’? Under such a process of filiation of necessities the sweeping clause makes clean work.”

It was clear to all that the debate was not just about the Bank, but about the extent of Congressional power and, indeed, about the nature of the Union itself. That debate would continue, although the forum shifted from the Congress and cabinet to the Supreme Court. The Bank’s charter expired in 1811, just in time for the War of 1812 to begin. The straightened financial situation in which the essentially bankrupt Madison administration eventually found itself stood in sharp contrast to the order that the Bank of North America had produced in the latter years of the Revolutionary War. Calls went out to charter the Second Bank of the United States. Even President Madison had once more changed his mind and, after one veto over practical objections, signed the bill to charter a new bank in 1816. Madison conceded that he repeated actions of the different branches of the government in support of the authority of the federal government to charter corporations had mooted his constitutional scruples over the matter, especially since those actions were supported “by indications…of a concurrence of the general will of the nation.” Jefferson never overcame his suspicion of the Bank, but, once retired from public office, agreed with Madison’s reasoning.

The Bank law was eventually challenged in McCulloch v. Maryland in 1819 and Osborn v. Bank of the United States in 1824. Chief Justice John Marshall, as was his wont in other important cases, once more borrowed extensively from Hamilton’s constitutional reasoning in upholding Congress’s power to charter the Bank. There the matter stood until the last round, between the Whig-controlled Senate and President Andrew Jackson in 1832. Jackson’s veto message was a ringing indictment of the financial interests that the Bank’s opponents since at least Jefferson had seen as the malevolent invisible hand directing the Bank’s actions. His economic provincialism favored hard money over paper. Moreover, Jackson dismissed the Supreme Court’s view on the constitutional issue as non-binding on him as the head of a co-equal branch. Finally, Jackson’s general inclination in favor of states’ rights and limited and defined powers of the central government made a central bank suspect.

The Jeffersonian strict constructionists of federal power thus won the battle over the central bank, a result not reversed until 1913 through the creation of the Federal Reserve Bank system. Of more significance and permanence, however, has been the across-the-board triumph of the Hamiltonian view of Congress’s powers. This is manifested not just in the broad reading of “implied” powers and the necessary-and-proper clause, but in the expansive reach of Congress’s express powers to tax and spend for the general welfare and to regulate interstate commerce. Add to that the general acceptance of broad implied powers for the executive branch, and it becomes obvious how thoroughly Hamilton’s nationalism has overwhelmed Jefferson’s romanticism about a republic of yeoman farmers and artisans governed by their state and local bodies and by a national Congress with strictly limited powers.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor 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. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

 

Click Here to have the NEWEST essay in this study emailed to your inbox every day at 12:30 pm Eastern!

Click Here for the previous essay.

Click Here for the next essay.

Click Here to view the schedule of topics in our 90 Day Study on Congress.

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Federalist 51 is part of a series of essays in which James Madison addressed the principle of separation of powers and its relation to the preservation of liberty and prevention of tyranny. Federalist 53 discusses the significance of the length of service of the House of Representatives to competent republican government.

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Under Article IV, Section 4, of the Constitution, the United States shall guarantee to each state a republican form of government. That raises the question of what was understood not only by a “republican form” of government, but by the substance of republicanism.

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In 2011, the Supreme Court decided Brown v. Entertainment Merchants Association (EMA). A California law prohibited the sale of violent video games to minors and required labelling of content and designation of suitable users. Parents would still have the choice to buy video games deemed violent and give them to their children. The law was challenged as violating the free speech rights of minors. Without getting into the raw details, as described in the state’s brief and acknowledged by some of the justices, these games invited the players to torture, murder, and humiliate characters. The attorneys for the purveyors of this entertainment assured the justices that such displays of violence were a traditional teaching tool for America’s youth, and that, unless children have unrestricted opportunity to purchase these materials, freedom of speech would be devastated.

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Guest Essayist: Joerg Knipprath

During the Senate hearings on his nomination to the Supreme Court, Judge Neil Gorsuch commented, “Justice [Antonin] Scalia’s legacy will live on a lot longer than mine.” Whether or not this is a prophetic remark is too early to tell. However, Judge Gorsuch’s statement recognizes the enormous impact that Scalia has had–and will have–on American constitutional law.

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Guest Essayist: Joerg Knipprath

In June, 1961, the Supreme Court declined to rule on the constitutionality of an 1879 Connecticut law that prohibited the use of contraceptive devices for the purpose of preventing pregnancy, as well as the counseling of such use. The law applied to married and unmarried couples. However, the law had apparently only been enforced once, in 1940, in a test case, where the charges were dismissed after the state supreme court upheld the law. In the more recent challenge, Poe v. Ullman, two couples and their doctor from the Yale University Medical School sought a declaratory judgment that the statute was unconstitutional. The Supreme Court noted that there had been no threat of prosecution by the state, the statute had not been enforced in the past, and contraceptives were freely sold in Connecticut drugstores, so that the case lacked the genuine dispute required by the Constitution for federal court action. Several justices dissented, one of whom, Justice John Marshall Harlan II, would pave the way for the next challenger.

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Guest Essayist: Joerg Knipprath

“Congress shall make no law…abridging the freedom of speech, or of the press ….” Though there is some debate over its original meaning, the First Amendment is commonly thought to have prohibited administrative prior restraint on public speaking or writing. Still, a speaker or publisher was responsible for the consequences of his words. If the words were, broadly speaking, directed to incite people against the established authority of the government, it was common to punish such spoken words as sedition and printed words as seditious libel.

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Guest Essayist: Joerg Knipprath

A large mural in the Capitol Building in Washington is titled “Westward the Course of Empire Takes Its Way.” It was painted by Emanuel Leutze in 1861 as a representation of Manifest Destiny, the optimistic world view of 19th century Americans that the country inevitably would be settled from the Atlantic Ocean to the Pacific. Manifest destiny was not a strategy or even a policy, but a slogan that represented an aspiration. It was the emergence of an American Empire. It might be a republic in form, but it would be an empire in expanse, wealth, and glory. The term was frequently used even by good American republicans, such as Thomas Jefferson, James Madison and John Marshall, when discussing their political philosophy.

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Guest Essayist: Joerg Knipprath

It is an understatement to describe Stephen Johnson Field as a giant among Supreme Court justices. He served more than 34 years on the Court, longer than any but Justice William Douglas. He authored 544 opinions, exceeded only by Justice Samuel Miller. He and his fellow justices during the 1880s, including Miller, Joseph Bradley, and John Marshall Harlan composed what, collectively, was likely the most intellectual bench in Supreme Court history.

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Guest Essayist: Joerg Knipprath

Presiding over a trial in the federal Circuit Court in Corfield v. Coryell (1825) to recover a seized vessel, Supreme Court Justice Bushrod Washington took the occasion to ponder the expansive scope of the Privileges and Immunities Clause of Article IV of the Constitution. Because the clause is to facilitate interstate comity and harmony, it protects citizens traveling from one state to another against having the host state abridge their rights compared to those enjoyed by its own citizens, simply on account of the visitors’ out-of-state status. Not all rights are equally important, so Washington attempted a definition. The rights were those “which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments.”

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Guest Essayist: Joerg Knipprath

In The Republic, Plato designed his ideal society as one in which the wives and children of the Guardians (the ruling elite) would be held in common. This would prevent the corrosive societal effects of nepotism that result when parents raise their children and, due to their natural affinity, seek to secure wealth and status for their offspring at the expense of the common welfare. The children would be reared by officials of the State: “The proper officers will take the offspring of the good parents to the pen or fold, and there they will deposit them with certain nurses who dwell in a separate quarter.” There was also the eugenicist angle: “[B]ut the offspring of the inferior, or of the better when they chance to be deformed, will be put away in some mysterious, unknown place, as they should be.” The “children of gold,” though, would undergo rigorous, State-controlled training to prepare them for their leadership role.

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Guest Essayist: Joerg Knipprath

In 1976, Americans celebrated a bicentennial, the anniversary of a revolution against an intrusive, heavy-handed, and unresponsive national government. Repeated petitions and remonstrances by the people’s elected local representatives had been dismissed and ignored by the political elite who controlled that far-away national government, and who considered the people ignorant bumpkins. Among the causes of revolution listed in the published indictment of that elite in 1776 had been the chief executive’s use of his quill to veto beneficial laws; his failure to enforce laws properly enacted; his actions and obstructions that clashed with pressing immigration issues; his expansion of uncontrolled bureaucracies, when he “erected a multitude of New Offices, and sent hither swarms of Officers to harass our People, and eat out their substance”; his policies that failed to secure the frontier and protect the inhabitants there against violence by marauders; and his encouragement of “domestic insurrections” that threatened social peace. Yet that chief executive had not acted alone. The legislature of that distant government had passed unconstitutional laws, such as those that overrode the people’s own local laws and altered fundamentally the constitutional relationship between the national government and theirs.

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Guest Essayist: Joerg Knipprath

After his landslide reelection victory in 1936, President Franklin Roosevelt delivered a message to Congress on February 5, 1937, that decried the alleged, but fictional, congestion of judicial dockets due in part, he explained, to the incapacity of aged or infirm judges. He proposed a law that would allow him to appoint up to six new Supreme Court justices in addition to the current number, one for each justice over age 70. He repeated the gist of what came to be known as his Court-packing plan in a “Fireside Chat” to the American people on March 9, 1937.

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Guest Essayist: Joerg Knipprath

The Industrial Revolution created theretofore unimaginable wealth, some of which trickled down as wages to workers in the mills and factories of the 19th century. Though substandard by today’s measure, those wages were sufficiently high and working conditions sufficiently appealing to attract people from farms to the growing cities. Waves of immigrants, mostly impoverished Europeans, flooded the labor pool, as well. That labor surplus depressed wages, which, in turn, kept low-skilled workers poor, at least in relation to the growing middle and upper classes. Churches and other private relief societies undertook the increasingly urgent efforts to ameliorate the poverty of the working class.

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Guest Essayist: Joerg Knipprath

In 1962, the Supreme Court embarked on what has been described by one scholar as “the most significant reformist activism in which the Warren Court engaged,” other than civil rights cases involving blacks. The constitutional arena was the apportionment of legislative districts, and the case was Baker v. Carr. Chief Justice Earl Warren called Baker “the most important case of [his] tenure on the Court.” Apportionment is the periodic drawing of lines by a state for its congressional districts and for its state legislative districts. Until Baker, federal courts had stayed out of what Justice Felix Frankfurter in a prior case had called a “political thicket,” because it was a “non-justiciable political question.” Such questions could not be resolved by courts for reasons that Justice William Brennan addressed in Baker.

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Guest Essayist: Joerg Knipprath

Unlike many of his decisions, Chief Justice John Marshall’s opinion in the foundational case Gibbons v. Ogden (1824), which upheld the right of Gibbons to operate a ferry between Elizabethtown, New Jersey, and New York City in competition with his former partner, Ogden, was well-received by the public. It negated a New York State monopoly grant and struck a blow in favor of restive younger entrepreneurs who hoped to prosper by providing technological innovation and expanding infrastructure as the country’s population and commerce grew.

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Guest Essayist: Joerg Knipprath

In 1785, Boston’s population was around 18,000; across the Charles River, Charlestown counted 1,200. Forty years later, Boston’s population had more than tripled, to 60,000; that of Charlestown to 8,000. The need to accommodate the increased travel and commerce between Boston and points inland resulted in protracted litigation before the Supreme Court in the 1830s in the Charles River Bridge v. Warren Bridge case.

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Guest Essayist: Joerg Knipprath

At the Peace of Paris that ended the Revolutionary War, the United States (defined, as in the Declaration of Independence, as the individual states) were recognized by the British as free and independent. While the British relinquished to those United States territory from the Atlantic to the Mississippi, the several states did not thereby relinquish their own, sometimes conflicting, claims to that land. The Articles of Confederation provided procedures for the settlement of boundary disputes between states under the aegis of Congress and also anticipated that there might be disputes between grantees of land from two different states. Yet, no state was to be deprived of land for the benefit of the United States, so the Confederation Congress could not force the states to cede their western land. Still, a number of states released their claims, so that Congress gained de facto control over those lands and organized the Old Northwest under the Northwest Ordinance of 1787.

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Guest Essayist: Joerg Knipprath

Ex parte McCardle was forged in the superheated atmosphere of Southern reconstruction after the Civil War. The struggle to shape that reconstruction pitted the “Radical” Republicans (representing the pre-war abolitionist wing) against moderates within the party. Democrats, reduced to a rump faction, could do little more than get out of the way and, if palatable, delicately offer support to the Republican moderates. The political and constitutional fault line cut between the restrained Lincoln-Johnson presidential reconstruction based on maintaining the existing federalism, but with abolition of slavery, and the program of congressional radicals to treat the South as a conquered province reduced to territorial status, prostrate before Northern arms and to be cleansed of the twin stains of slavery and secession by stripping the erstwhile states of their old constitutional privileges.

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Guest Essayist: Joerg Knipprath

On June 19, 1846, the Rochester, New York, Democrat newspaper reported that over 4,000 people assembled to witness the launch of a new steamship (then often called a “propeller” due to the novel screw propulsion mechanism), the Genesee Chief. She was described as “faultless in her model and appointments.” At 144 feet long, with 20 state rooms, and berths for 75 cabin and 100 steerage passengers, with room for more, she was to be the start of regular steamship service between Rochester and Chicago.

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