Guest Essayist: Joerg Knipprath

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

Religious freedom, assembling, speaking freely and defending the nation’s liberty. “While the People are virtuous they cannot be subdued; but when once they lose their Virtue they will be ready to surrender their Liberties to the first external or internal Invader. How necessary then is it for those who are determind to transmit the Blessings of Liberty as a fair Inheritance to Posterity, to associate on publick Principles in Support of publick Virtue. I do verily believe, and I may say it inter Nos, that the Principles & Manners of New England produced that Spirit which finally has establishd the Independence of America; and Nothing but opposite Principles and Manners can overthrow it.” – Samuel Adams, in a letter to James Warren, Philadelphia, February 12, 1779.

In A Defence of the Constitutions of Government of the United States, John Adams mused about a lengthy quote from Aristotle’s Politics. There, Aristotle extols the benefits of a polis controlled by a broad middle class and warns of the danger to societies if the number of the middle class dwindles. His assessment of the best practical political system is consistent with what is called the “Golden Mean,” a concept taken from Aristotle’s Nicomachean Ethics. For the most part, excellence of the soul—virtue—lies in taking a path between two extremes that are vices. Another key element of classical Greek philosophy was that excellence of the person and of the state were intimately connected, that the polis was the soul writ large, so the analogy of the benefits of moderation for the individual to the benefits of middle-class government for the state was obvious.

It is worth quoting Aristotle at length on this point, as Adams did:

“In every city the people are divided into three sorts, the very rich, the very poor, and the middle sort. If it is admitted that the medium is the best, it follows that, even in point of fortune, a mediocrity is preferable. The middle state is most compliant to reason. Those who are very beautiful, or strong, or noble, or rich, or, on the contrary, those who are very poor, weak, or mean, with difficulty obey reason.… A city composed only of the rich and the poor, consists but of masters and slaves, not freemen; where one party despise, and the other hate; where there is no possibility of friendship, or political community, which supposes affection. It is the genius of a free city to be composed, as much as possible, of equals; and equality will be best preserved when the greatest part of the inhabitants are in the middle state. These will be best assured of safety as well as equality; they will not covet nor steal, as the poor do, what belongs to the rich; nor will what they have be coveted or stolen; without plotting against any one, or having any one plot against them, they will live free from danger. For which reason, Phocylides wisely wishes for the middle state, as being most productive of happiness. It is plain then that the most perfect community must be among those who are in the middle rank; and those states are best instituted, wherein these are a larger and more respectable part, if possible, than both the other; or, if that cannot be, at least than either of them separate; so that, being thrown into the balance, it may prevent either scale from preponderating. It is, therefore, the greatest happiness which the citizen can enjoy, to possess a moderate and convenient fortune. When some possess too much, and others nothing at all, the government must either be in the hands of the meanest rabble, or else a pure oligarchy. The middle state is best, as being least liable to those seditions and insurrections which disturb the community; and for the same reason extensive governments are least liable to these inconveniences; for there those in the middle state are very numerous; whereas, in small ones, it is easy to pass to the two extremes, so as hardly to have any medium remaining, but the one half rich, and the other poor. We ought to consider, as a proof of this, that the best lawgivers were those in the middle rank of life, among whom was Solon, as is evident from his poems, and Lycurgus, for he was not a king; and Charondas, and, indeed, most others. Hence, so many free states have changed either to democracies or oligarchies; for whenever the number of those in the middle state has been too small, those who were the more numerous, whether the rich or the poor, always overpowered them, and assumed to themselves the administration. When, in consequence of their disputes and quarrels with each other, either the rich get the better of the poor, or the poor of the rich, neither of them will establish a free state, but, as a record of their victory, will form one which inclines to their own principles, either a democracy or an oligarchy….”

This critique of pure oligarchic or democratic systems has been summed up as the unwelcome prospect of the rich stealing from the poor in the former, and the poor stealing from the rich in the latter.

Adams quoted this passage with approbation, but occasionally expressed opinions which seemed to be at odds with Aristotle’s political theory. Aristotle proposed a mixed government (mikte) as the most stable and conducive to human flourishing. The mixed government would not be democratic or oligarchic but would have elements of both in a mediated balance, such as in Athens, where the popular Assembly was balanced by the Council of 500 and its steering committee. Adams’s own work in drafting the Massachusetts Constitution of 1780 incorporated a similar bicameral structure in a Senate and a House of Representatives, with qualification for election to the former requiring ownership of an estate three times the value of property needed for election to the latter. But he also put in place a further structure of separation and balance of powers among the three branches of government, explicitly affirmed in Article XXX of that constitution, so that “it may be a government of laws and not of men.”

Aristotle’s description of the instability of pure systems such as oligarchy and democracy was not new with him. Plato and other Greeks had done likewise. American writers had similar misgivings. James Madison addressed such instability in his writings in The Federalist, especially in his discussion of factions in essay No. 10. Aristotle’s observation that “extensive governments are least liable to these inconveniences; for there those in the middle state are very numerous; whereas, in small ones, it is easy to pass to the two extremes, so as hardly to have any medium remaining, but the one half rich, and the other poor,” sounds remarkably like Madison’s defense of the national government.

Factions are the result of the inevitable inequality of rights in property which proceeds from the natural inequality of talents. “Those who hold, and those who are without property, have ever formed distinct interests in society.” Moreover, because of the inherent nature of democracies, where a small number of citizens conducts the government in person, those factions are most likely to become entrenched, with the stronger party sacrificing the weaker. “Hence it is, that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security, or the rights of property; and have, in general, been as short in their lives, as they have been violent in their deaths.” This remark might as well have been a summary of Athenian politics. Again, Aristotle’s observation, “When, in consequence of their disputes and quarrels with each other, either the rich get the better of the poor, or the poor of the rich, neither of them will establish a free state,” matches Madison’s critique.

The instability and short survival of democracies carried over to other small political entities.

“The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing the majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plan of oppression….[T]he same advantage, which a republic has over a democracy, in controling the effects of faction, is enjoyed by a large over a small republic…is enjoyed by the union over the states composing it.”

Specifically,

“…a religious sect may degenerate into a political faction in a part of the confederacy; but the variety of sects dispersed over the entire face of it, must secure the national councils against any danger from that source: a rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the union, than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district than an entire state.”

Samuel Adams’s letter to James Warren quoted in the introduction to this essay tied stable government and individual liberty to virtue and bound private and public virtue to each other. This emphasis on the interdependent virtue of the citizen and of the society was the essence of classical republicanism and a fundamental concept in the political philosophy of Greek and Roman writers. Moreover, Adams confided to his fellow New Englander that it was the “Principles & Manners” of that region which produced the spirit of liberty that fueled the drive to American independence. In the views of many New Englanders, especially Samuel’s cousin John Adams, widely-distributed land ownership of medium size lay at the heart of developing those New England principles that allowed for private and public virtue to take root.

In that letter to Warren, Adams also echoed Aristotle’s identification of a free city with a large middle class, whose ownership of a moderate estate made them most receptive to governance based on reason. Government by reason is analogous to the exercise of public or civic virtue and is most conducive to happiness (eudaimonia). When Aristotle declares, “It is plain then that the most perfect community must be among those who are in the middle rank,” he is associating excellence of government with a middle-class society. Excellence was arete in Greek. In Rome, the Latin translation became virtus and denoted a particular type of attribute and action that connected private character and public conduct.

The inevitable link between widespread property ownership of land, a virtuous citizenry, liberty, and survival of republican government was a common theme outside New England, as well. Although property ownership in the South was somewhat more complex due to the existence of the planter class in the Tidewater regions, other regions of the area still had a large class of yeoman farmers with moderate estates. Two of the most prominent advocates of Southern agrarian republicanism were Thomas Jefferson and John Taylor. Jefferson sought to realize his idealized virtuous republic of artisans and yeoman farmers politically through his promotion of land sales in the Old Northwest and the acquisition of Louisiana. Taylor’s writings on land ownership, virtue, liberty, and republican institutions brought systematic cohesion to agrarian republicanism and tied its principles to contentious issues of public policy.

But faith in a virtuous middle class as the source of personal liberty and political stability was not blind. Various writers, including John Adams in 1776, expressed reservations about the capacity of Americans to acquire the virtue necessary for self-government. New Englanders’ faith in their virtue and their fitness for republican government was shaken severely by the tax rebellion of Daniel Shays and his followers in 1786. Perhaps such virtue was not possible without a strong hand of government to correct deviations. More Americans were forced to confront that issue during and after the Whiskey Tax Rebellion in Pennsylvania from 1791 to 1794. After all, in both scenarios, the challenge to the republican governments had come from yeoman farmers, the supposed embodiments of republican virtue.

Southern agrarians had always been more skeptical that there was sufficient virtue among politicians to maintain republican government. Their experience with the turbulence and corruption of state governments after independence only confirmed their doubts. Madison expressed that sentiment in essay No. 51 of The Federalist. While there was some basis to believe that the people might acquire the requisite virtue, in the case of politicians it was best to assume that “the better angels of [their] nature,” to borrow Abraham Lincoln’s famous language from years later, would not direct their actions. It was more likely that pure self-interest and desire for power would be their motivation.

Therefore,

“[a]mbition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, nether external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

Those auxiliary precautions lay in the structure of the government under the Constitution, primarily a separation of powers and blending and overlapping of functions as in John Adams’s Massachusetts constitution.

Madison was not alone in declining to place all bets for success of republican self-government and liberty on human virtue. Samuel Adams may have been correct that those “Blessings of Liberty” cannot be passed on without cultivating virtue in the people, especially the virtues of the Aristotelian golden mean. Self-government requires self-restraint. But virtue, though necessary, may not be sufficient. “The best republics will be virtuous, and have been so,” the other Adams—John—concluded in the last pages of the multivolume Defence in the somewhat stilted syntax of his time,

“But we may hazard a conjecture, that the virtues have been the effect of the well-ordered constitution, rather than the cause: and perhaps it would be impossible to prove, that a republic cannot exist, even among highwaymen, by setting one rogue to watch another; and the knaves themselves may, in time, be made honest men by the struggle.”

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.

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Alexander Hamilton responded in numerous essays in The Federalist to the charges that Congress might impose excessive taxation. Among his efforts to calm the torrents of dissent was essay No. 21, where he opined that imposts, excises, and other duties on articles of consumption were preferable to other types of taxes. Consumption taxes were unlikely to be excessive, as they had a built-in safety valve. The higher the tax, the less of the article would be consumed, which would result in less revenue collected. “This forms a complete barrier against any material oppression of the citizens, by taxes of this class, and is itself a natural limitation of the power of imposing them.”

As a supporter of the wealthy merchant class, Hamilton might have been supportive of consumption taxes for another reason. In England as well as North America, the tendency was for legislative majorities to impose most taxes on other than their own class. As the historian Forrest McDonald describes the matter of taxes as “gifts” to the government in his book Novus Ordo Seclorum, “When deciding whether to give away one’s own property or somebody else’s, humankind—being imperfect—has a disposition to give away somebody else’s. Hence, for several centuries, the landed gentry in the House of Commons elected to have as much of the tax burden as possible fall either upon their tenants or upon gentlemen of trade. When the latter gained influence and power proportionate to their wealth, this trend was altered; but the costs of government rose astronomically during the eighteenth century, and country and city gentlemen tended to meet these costs by multiplying the kinds and amounts of taxes upon consumer necessities. They volunteered as many of the ‘gifts’ as possible from the unrepresented poor.”

In the American colonies, according to McDonald, legislatures were mostly controlled by the landed gentry, elected by the broad proportion of the adult male population which owned sufficient land to meet the property qualifications for voting. “The American colonists developed an aversion to taxation for which they were to become celebrated. What was less celebrated, they tended to place the main burden of taxation, insofar as was possible, on merchants and on the well-to-do. The euphemism for this practice was requiring the most taxes from those who were best able to pay; again the reality was requiring somebody else to make the gift.” James Madison, in his 1792 essay, “Property,” was making that same point when he wrote, “A just security to property is not afforded by that government under which unequal taxes oppress one species of property and reward another species: where arbitrary taxes invade the domestic sanctuaries of the rich, and excessive taxes grind the faces of the poor.” Those attributes of taxation remained, although mainly in the form of income taxes, which grind the middle and upper middle class.

Thomas Jefferson, on the other hand, rather predictably supported taxes on merchants and manufacturers. In April of 1811, in a letter to General Thaddeus Kosciusco, Jefferson wrote of his ideas about restraining the tendency for manufacturing to concentrate wealth and encourage corruption, dependence, and servility among the population. “…. [W]e shall soon see the final extinction of our national debt, and liberation of our revenues for the defence and improvement of our country. These revenues will be levied entirely on the rich, the business of household manufacture being now so established that the farmer and laborer clothe themselves entirely. The rich alone use imported articles, and on these alone the whole taxes of the General Government are levied. The poor man who uses nothing but what is made in his own farm or family, or within his own country, pays not a farthing of tax to the general government, but on his salt; and should we go into that manufacture also, as is probable, he will pay nothing. Our revenues liberated by the discharge of the public debt, and its surplus applied to canals, roads, schools, etc….” Jefferson did not take into account the imposition of tariffs on imported goods, which increased the influence and wealth of domestic manufacturers at the expense of the landed yeomanry, raised the prices of domestic goods, and caused frequent sectional conflicts between the South and West on the one hand, and the Northeast on the other.

Other than proceeds from the sale of western lands, the most common source of revenue for the early United States was import duties. Those were generally acceptable during the first several decades, because they involved voluntary purchases and were often seen, as Jefferson’s remarks show, as luxury taxes paid by the wealthy. Attempts to tax the fruits of labor, such as the Whiskey Tax of 1791, precipitated significant political opposition and a drawn-out period of unrest from 1791 to 1794. There were incidents of violence against federal tax collectors and the property of federal officials. That unrest, dubbed the Whiskey Rebellion, ended only after a show of military force by federalized militia, the arrest and trial of a handful of participants, and, eventually, the repeal of the tax.

A later tax on labor, the 1894 federal peacetime income tax, was struck down as unconstitutional by the Supreme Court in 1895 in Pollock v. Farmers’ Loan and Trust Co. It took another couple of decades and a constitutional amendment before a one percent tax on income above $3000, affecting only about three percent of the population of the United States, was enacted. Since then, the federal government has relied primarily on taxes on production and labor, such as excise taxes on products and income taxes, rather than on import duties and tariffs.

Another threat to the rights in property was expropriation and redistribution of land. Many Revolutionary War era state legislatures found it impossible to resist the lure of seizing property owned by British subjects and American Loyalists and reselling it to American Patriots, either settlers or speculators. But, in general, there probably was nothing that more viscerally frightened and repelled most Americans than redistribution of property. As noted earlier, many Americans reacted in shock to the alleged goal of Daniel Shays and his followers to force a redistribution of land. There was no less opposition to a peaceful redistribution of land through what were called “agrarian laws.” Hamilton, Washington, Adams, Madison, Jefferson, and John Taylor of Caroline County might view agrarian republicanism with lesser or greater degree of favor, but all rejected such interference with a person’s rights in property.

Even Taylor, the foremost American theorist and defender of agrarian republicanism, declared that redistributions of property were grotesque infringements of liberty. He noted that government was instituted primarily to protect private property, the “acquisitions of private people, which no law can transfer to other private people.” On a curious note, Taylor assured his readers that, as a practical matter, it would be futile to support such laws, because the political system was rigged against them: “My fellow laborers, mechanical or agricultural, let us never be deluded into an opinion, that a distribution of wealth by the government or by law, will advance our interest.” The mechanics and farmers may constitute the majority of nations, but “a minority administers governments and legislates.”

The judiciary also placed themselves firmly in categorical opposition to such laws, using both specific constitutional restrictions and more abstract political theory. A clear statement to that effect came from Justice Samuel Chase in 1798 in Calder v. Bull. In language similar to that of Taylor, Chase insisted that “a law that takes property from A. and gives it to B.” would “take away that security for personal liberty or private property for the protection whereof the government was established” and would be “contrary to the great first principles of the social compact.” Presumably, even an exercise of eminent domain through which government compensated the property owner for the land seized was unconstitutional if the land was transferred to another private person. For better or worse, that strictness was not always observed as states condemned land for private canal and turnpike operations. Not unexpectedly, given the breeziness with which rights in property are infringed today, the Supreme Court no longer sees forced transfers of property from one person to another as fundamentally objectionable, as long as the original owner is compensated, and the transfer achieves some vague public purpose.

In Vanhorne’s Lessee v. Dorrance, a federal circuit court case in 1795, Justice William Paterson, a leading figure at the Philadelphia Convention, struck down as an unconstitutional taking of property a Pennsylvania law that vested title to tracts of land after the land had previously been granted to another claimant. Using both the Constitution’s text and natural law reasoning Chief Justice John Marshall and Justice William Johnson wrote opinions in Fletcher v. Peck in 1810 striking down a similar Georgia law as a violation of vested rights in property. Johnson, a Jeffersonian republican, went so far as to announce that such laws went against a general principle which binds all legislatures, “the reason and nature of things; a principle which will impose laws even on the deity.” Setting aside theological disputation about the last part of that assertion, Johnson’s opinion recognized the fundamental nature of rights in property.

The final threat to property and the fruits of one’s labor in the early United States came in the form of laws which interfered with duly made contracts. State legislatures in the 1780s, responding to depressed economic conditions, repeatedly meddled in debtor-creditor relations with a plethora of laws designed to assist debtors. Most notorious were state laws making depreciated paper currency legal tender for the payment of debts. Neither state constitutional guarantees nor the frail central government created by Articles of Confederation proved able to halt these legislative abuses. State courts were simply unable to uphold the rights of creditors in the face of public pressure. “Americans,” Forrest McDonald concluded, “were not as secure in their property rights between 1776 and 1787 as they had been during the Colonial period.”

When discussing the destructive influence of political factions in essay No. 10 of The Federalist, Madison described the types of pernicious laws that have resulted from factions gaining majority control of legislatures. He was obviously referring to the laws enacted through the tumultuous factional politics of the state governments of his time: “…a rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than any particular member of it, in the same proportion as such a malady is more likely to taint a particular county or district, than an entire State.” Such laws, too, interfered with the legitimate expectations of people to have the fruits of their labor protected, because funds lent in good faith could be repaid in worthless scrip and contracts for goods and services performed in good faith could be undone on legislative whim. The Constitution sought to remedy this problem by prohibiting state laws which impaired the obligations of contract and frustrated rights vested under such contracts. Unfortunately, over the past century, the Supreme Court has effectively neutered that clause.

Justice Stephen Field, the most influential American judge of the latter part of the 19th century, put it succinctly in 1890 in an address on the occasion of the centenary of the Supreme Court: “It should never be forgotten that protection to property and persons cannot be separated. Where property is insecure the rights of persons are unsafe. Protection to the one goes with protection to the other; and there can be neither prosperity nor progress where either is uncertain.”

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.

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“A just security to property is not afforded by that government, under which unequal taxes oppress one species of property and reward another species: where arbitrary taxes invade the domestic sanctuaries of the rich, and excessive taxes grind the faces of the poor; where the keenness and competitions of want are deemed an insufficient spur to labor, and taxes are again applied, by an unfeeling policy, as another spur; in violation of that sacred property, which Heaven, in decreeing man to earn his bread by the sweat of his brow, kindly reserved to him, in the small repose that could be spared from the supply of his necessities.” – Property, an essay by James Madison, March 29, 1792.

One of the fundamental philosophical tenets of American republicanism in the late 18th and the 19th century was the inviolability of rights in property. Influenced by the writings of John Locke on political theory, the definition of property extended not only to material property, but to the status of ownership over oneself. One had natural rights in one’s person. The exercise of one such right, labor, would lead to the acquisition of an estate in material property. As James Madison explained in essay No. 10 of The Federalist, there is a “diversity in the faculties of men, from which the rights of property originate…. The protection of these faculties is the first object of government.” It is these inherent characteristics of mind, body, and talents that government must protect, not handicap. “From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results.”

Property in both senses, metaphysical and material, was the source of a person’s liberty. In the metaphysical sense, one’s property in oneself meant that one was not by nature the slave of another, and that, therefore, as a free person, one had certain rights of which one could not be deprived. In the material sense, a sufficient portion of property, especially of land, provided the independence that was necessary for the effective exercise of one’s liberty. Further, that independence from others’ control must exist broadly within the community to supply the civic virtue needed for republican self-government. Property as so understood was at the basis of human flourishing for the individual and the community. When Thomas Jefferson changed the last aspect of Locke’s formulation of natural rights from property to the pursuit of happiness in the Declaration of Independence, he did not change the fundamental point that property was critical to human happiness understood as individual flourishing within a political commonwealth governed by consent of its people.

Locke had posited that one’s labor, mixed with the land (or with other raw materials in the case of non-agricultural pursuits), created private property out of what God had given humans in common in nature. An estate, therefore, was a fruit of one’s labor, and government action to take or diminish one’s estate or to commandeer one’s labor was a violation of fundamental rights to property and liberty. A century after Locke, Adam Smith made a similar point in 1776 in Wealth of Nations. “The property which every man has in his own labor,” Smith wrote, “as it is the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of the poor man lies in the strength and dexterity of his own hands; and to hinder him from employing this strength and dexterity in what manner he thinks proper, without injury to his neighbor, is a plain violation of this most sacred property. It is a manifest encroachment upon the just liberty both of the workman and of those who might be disposed to employ him. As it hinders the one from working at what he thinks proper, so it hinders the others from employing whom they think proper.”

Writing yet another century later, in 1872 in The Slaughterhouse Cases, the highly-respected Justice Joseph Bradley observed in a dissent from a Supreme Court decision to uphold a slaughterhouse monopoly, “Rights to life, liberty, and the pursuit of happiness are equivalent to the rights of life, liberty, and property. These are the fundamental rights which can only be taken away by due process of law, and which can only be interfered with, or the enjoyment of which can only be modified, by lawful regulations necessary or proper for the mutual good of all; and these rights, I contend, belong to the citizens of every free government.

“For the preservation, exercise, and enjoyment of these rights the individual citizen, as a necessity, must be left free to adopt such calling, profession, or trade as may seem to him most conducive to that end. Without this right, he cannot be a freeman. This right to choose one’s calling is an essential part of that liberty which it is the object of government to protect, and a calling, when chosen, is a man’s property and right. Liberty and property are not protected where these rights are arbitrarily assailed.”

The right to engage in labor of one’s choosing, and the right to retain the fruits thereof in the form of property, are central to one’s liberty, yet experience has shown that governments have threatened these rights repeatedly. Taxation, redistribution of property, especially of land, and abolition of debts have been the most potent threats to security in property. Taxes, notably those on land or its produce, were particularly suspect because they could deprive people of their most basic means of subsistence and status, while benefiting some favored politically powerful individual or group.

Sounding much like Plato in The Republic about the defects of democracy, John Adams identified the danger in his Defence of the Constitutions of Government of the United States. Although his posited facts appear odd considering his assurances elsewhere about the widespread distribution of property in New England, he argued, “[A] great majority of every nation is wholly destitute of property, except a small quantity of clothes, and a few trifles of other movables. Would Mr. Nedham be responsible that, if all were to be decided by a vote of the majority, the eight or nine millions who have no property, would not think of usurping over the rights of the one or two millions who have? Property is surely a right of mankind as really as liberty. Perhaps, at first, prejudice, habit, shame or fear, principle or religion, would restrain the poor from attacking the rich, and the idle from usurping on the industrious; but the time would not be long before courage and enterprise would come, and pretexts be invented by degrees, to countenance the majority in dividing all the property among them, or at least, in sharing it equally with its present possessors. Debts would be abolished first; taxes laid heavy on the rich, and not at all on the others; and at last a downright equal division of every thing be demanded, and voted. What would be the consequence of this? The idle, the vicious, the intemperate, would rush into the utmost extravagance of debauchery, sell and spend all their share, and then demand a new division of those who purchased from them. The moment the idea is admitted into society, that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. If ‘Thou shalt not covet,’ and ‘Thou shalt not steal,’ were not commandments of Heaven, they must be made inviolable precepts in every society, before it can be civilized or made free.”

The long struggles over taxation between king and barons in Magna Charta, and subsequently between king and Parliament, had ended with Parliament’s power over the purse confirmed in the settlement offering the throne to William and Mary after the Glorious Revolution of 1688. Taxes were said to be a “gift” of property from the people to the king. Therefore, the king could not simply impose taxes, any more than a thief could help himself to one’s property or command one’s labor. However, under the class-based theory of virtual representation which held that all Englishmen other than the high nobility were represented in the House of Commons, that body had the authority to vote in favor of granting the king such a gift. The American colonists had a different theory of representative government, one based on geographic communities whose residents selected “their” representatives. As such, they rejected taxes levied by vote of the House of Commons in which, the colonials averred, they were not represented. That basic difference over the nature of representation led to the revolutionary slogan “no taxation without representation.” But even domestically, contests between royal governors and colonial legislatures over taxation were endemic.

Americans’ distrust of taxation continued after independence. The power to tax was still the power to destroy, even if it was exercised by a legislative majority elected by themselves. The problem existed at the state level and, if anything, was considered even more of a threat at the national level. The Articles of Confederation tried to strike a balance between taxes and liberty by giving Congress only the power to levy requisitions on the states, not to impose taxes directly on people. When the Constitution of 1787 gave Congress a broad taxing power, it produced significant resistance. One concern was that the Congress might impose a level of taxation that destroyed the liberty of persons by impoverishing them. Another was that the power threatened the vitality of the states.

The example of Shays’s Rebellion in Massachusetts in 1786 provided a concrete lesson about the former concern. The state legislature, acting on the prompting of Governor John Hancock, had voted expensive programs of repaying the state’s war debts at face value, even though the state’s notes had depreciated significantly in value. This benefited wealthy speculators in those notes. It also placed a severe burden on the state’s finances. However, Hancock refused to collect the taxes the legislature had voted to cover the costs. When he left office, the state’s treasury was in dire straits, and that politically unpleasant task fell to his successor, James Bowdoin. The taxes heavily burdened farmers in the western part of the state. The resulting discontent produced statements of grievances, interference with court proceedings, and a loosely organized armed force of debtor farmers eventually defeated by a volunteer army recruited in the state’s eastern counties.

Shays’s Rebellion frightened many Americans. They were alarmed by exaggerated accounts of Shays’s “army,” especially the report written to George Washington by Henry Knox, the superintendent of war under the Confederation. Washington believed Knox’s wild claims, including that Shays intended to march south and to seize and redistribute land. A letter from Abigail Adams to Thomas Jefferson noted that some Shaysites called for an equal distribution of property. Another letter, from James Madison to his father, asserted that “an abolition of debts, public and private, and a new division of property are strongly suspected to be in contemplation.” The tumult gave strong impetus to the convening of the constitutional convention in Philadelphia.

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.

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In 1785, in his book Notes on the State of Virginia, Thomas Jefferson wrote in Query XIX, “Those who labor in the earth are the chosen people of God, if ever he had a chosen people, whose breasts he has made his peculiar deposit for substantial and genuine virtue. It is the focus in which he keeps alive that sacred fire, which otherwise might escape from the face of the earth. Corruption of morals in the mass of cultivators is a phenomenon of which no age nor nation has furnished an example.” In similar tone, in a passage in a letter to John Jay that same year, Jefferson effusively tied together all of the notions American agrarians held dear: “Cultivators of the earth are the most valuable citizens. They are the most vigorous, the most independent, the most virtuous, & they are tied to their country & wedded to its liberty & interests by the most lasting bonds.” He repeated similar sentiments throughout his life.

Jefferson was not alone in these adulatory opinions. Americans, whose beliefs otherwise might be quite heterodox about the nature of virtue or the best government or economic system, broadly shared his views. Nor was this mindset restricted to Americans, who occupied—rather sparsely, on the whole—a large tract of land and whose nation was overwhelmingly agricultural. The French physiocrats of the mid-18th century endorsed agricultural production as the true measure of a nation’s wealth, and land combined with agricultural labor as its only source. Going back further, Aristotle had extolled the virtues associated with agrarian society. But it was Roman writers such as Cato, Cicero, and Virgil whose works most influenced Enlightenment agrarians. Roman republicanism exalted land ownership to the point that senators were formally prohibited from engaging in any but agricultural endeavors, a restriction the senators avoided through various artifices as Rome became a more commercial society. The ideal of the Roman statesman was told in the story of Cincinnatus, the nobleman who was called from his pastoral existence to lead Rome in a time of crisis, only to lay down his office and return to his small farm when the crisis ended. For Americans, the resemblance to George Washington was not a coincidence.

But the most immediate influence on Americans’ exaltation of the yeoman farmer was a school of British Whiggism, the so-called country party. The 17th-century political philosopher James Harrington had penned Oceana, his description of an ideal commonwealth based on roughly equal holdings of land by its citizens. The land must be enough, unencumbered by debts, to provide for himself and his family. Only in this manner could he avoid dependence on another, his would-be master. That independence was crucial to cultivating the virtue necessary for self-government. English essayists of the 18th century, such as John Trenchard and Thomas Gordon, writing in Cato’s Letters, and Henry St. John, 1st Viscount Bolingbroke, with whose works Americans were quite familiar, also advocated the necessary relationship among ownership of an adequate estate in land, independence, virtue, and liberty.

Perhaps the single most influential philosopher for Americans of the Founding was John Locke. As with other political principles, Locke’s ideas on property, virtue, and limited government resonated in Jefferson’s writings. Locke posited that God gave the world to mankind in common. But man had the right to his own labor and could claim as his own both the land with which he mixed his labor and the fruits of his labor in the crops the land produced. At least implicitly, this required a plentiful supply of land that would be available for future generations.

Not surprisingly, Locke’s views found favor among Americans, who saw a virtually limitless bounty of land in their world. Although some areas along the Atlantic seaboard were becoming more populated, it was always possible to decamp for a tract unsettled, at least by Europeans, just a few dozen miles farther west. Various plans of settlement were grounded in the easy availability of land. There was the almost feudal system of land ownership designed for the Carolinas by John Locke, the secretary for one of the proprietors of that colony. Fortunately, his Fundamental Constitutions were substantially amended by the proprietors and then suspended after two decades, in 1690. More consistent with Locke’s other writings was the project of the proprietor of Georgia, James Edward Oglethorpe, in 1733. Oglethorpe designed a plan of economic and social development founded on land grants of equal size. Acquisition of additional land by marriage or purchase was prohibited. Likewise, slavery was prohibited as immoral, but also to prevent the emergence of large plantations as had happened in other colonies.

There was plenty of land in Georgia, as well as in the country west of the Allegheny Mountains. But there was a catch. After the end of French rule in North America, the British government signed treaties with the Indians to end Pontiac’s Rebellion and issued the Proclamation of 1763 to prevent western settlement. Existing settlers were ordered to abandon their tracts. Americans considered this to be a blatant attempt to prevent an increase in the population. The Proclamation was immensely unpopular among all classes, from the land speculators and investors in land syndicates with their fortunes now at risk, to the settlers looking for cheap and plentiful land. It became a major contributor to the ill will emerging against the British government.

Once American independence was achieved, settlers poured through the mountain passes into the western lands of the states and then into the unorganized areas of the Old Northwest. The Confederation Congress adopted the Land Ordinance of 1784, drafted by Jefferson, and the implementing Land Ordinance of 1785 to survey the lands and prepare them for sale.

While the peace treaty with Britain opened up potentially vast tracts of land for sale or, more frequently, squatting, some of the most committed ideologues of American agrarianism were still ill at ease. In particular, the rise of manufactures and merchant commerce troubled them. They saw in England the fate that awaited Americans of future generations. As the population there grew and the supply of land became filled, people were forced into wretched conditions in cities to labor for others. Adam Smith had described their condition in 1776 in Wealth of Nations: Farming required a variety of knowledge and practical understanding; not so factory work. “The man whose whole life is spent in performing a few simple operations, of which the effects too are, perhaps always the same…has no occasion to exert his understanding …. He naturally loses, therefore, the habit of such exertion, and generally becomes as stupid and ignorant as it is possible for a human creature to become.” This was hardly the stuff of the virtuous and enlightened citizen, jealous of his liberty, but ready to sacrifice for the well-being of the community, the free yeoman farmer or artisan suited to self-government in a republic.

Jefferson needed no convincing. He agreed with Smith that the division of labor in the emerging capitalist manufacturing sector produced significant material benefits. But he was also convinced that the nascent banking system with its creation of debt, as well as the monotony of factory work, created a dependency that robbed ordinary citizens of the autonomy needed for republican government. Regardless of material wealth produced by manufacturers and “stock jobbers,” a nation of farmers was better suited for a republic. Writing in Notes on the State of Virginia, Jefferson declared, “Manufacturing, and its attendant commerce, as European evidence had so graphically shown, distorted relationships among men, bred dependence and servility, and spawned greed and corruption which became a canker on the society. A nation of farmers, on the other hand, each of whom owned his own plot of land, who was free and beholden to no one, would assure the preservation of those qualities on which the strength of a republic depended.”

It was important, therefore, to provide land for as many as possible, including future generations. Echoing Locke, Jefferson wrote in a letter to James Madison on October 28, 1785,

“The earth is given as a common stock for man to labor and live on. If for the encouragement of industry we allow it to be appropriated, we must take care that other employment be provided to those excluded from the appropriation. If we do not, the fundamental right to labor the earth returns to the unemployed… It is not too soon to provide by every possible means that as few as possible shall be without a little portion of land. The small landholders are the most precious part of a state.”

Jefferson’s advocacy for the Land Ordinances of 1784 and 1785 reflected his eagerness to promote widespread land ownership. But his most edifying moment was the stroke of good fortune in the form of the Louisiana Purchase of 1803. For a bargain price of $15 million, or an estimated $350 million in today’s money, the territory acquired from France almost doubled the size of the United States. More accurately, the United States acquired the exclusive right to deal with the American Indian tribes that occupied most of the land. While there were other benefits, commercial and military, sufficient to overcome whatever constitutional scruples President Jefferson voiced to others about his authority to make the treaty, he was most gratified that the purchase achieved his goal of plentiful land for his republic of farmers and artisans: “The fertility of the country, its climate and extent, promise in due season important aids to our treasury, an ample provision for our posterity, and a wide-spread field for the blessings of freedom.” By this action, he could assure himself, he had guaranteed a republican future for generations of Americans to come, where the plenitude of land made certain that no one would have to subject himself to exploitation or domination by another.

Whereas Jefferson returned to the theme of his republic of farmers and artisans in frequent correspondences, he was not a systematic theorist of American agrarianism. That description best fits John Taylor of Caroline County, Virginia. Taylor was a lawyer, planter, military officer, and politician. He engaged in scientific agriculture, becoming a leader in promoting crop rotation, and published pamphlets and a book about those endeavors. He also wrote several books about political economy and the connection among land ownership, private happiness, independence defined as republican self-government, liberty, a limited and decentralized political system, division of political powers, and the laissez-faire economics of a free market. He vigorously opposed wealth and political power from the emerging capitalist manufacturing enterprises fueled by burdensome protective tariffs. But his most fervent denunciations were of banks, the paper issued by them unbacked by sufficient specie, and their practice of patronage and lobbying which according to Taylor, secured them unnatural privilege and wealth.

Taylor’s five books, especially his 1814 work, Inquiry into the Principles and Policy of the Government of the United States, brought philosophical discipline to the agrarian mythos among Americans. His contributions to political theory have been declared among the best that Americans have produced. Taylor’s adoration of agrarian republicanism at times took on a religious tone. He tied the story of the Garden of Eden to an agrarian social order and was convinced that an agrarian republic would allow man to regain his lost paradise.

Agriculture provided freedom which, in turn, produced private happiness. With family roots in the land, social organizations could develop organically, and people would enjoy true community through friendship, love, religion, education, and leisure. As well, agriculture provided the independence needed for republican self-government and the resulting public happiness created by wise laws. Manufacturing and capitalism had the opposite effect. In language reminiscent of Adam Smith, and to a degree of Karl Marx, Taylor denounced the emerging factory system as degrading human nature by destroying man’s freedom and happiness. The laborer was nothing more than a wage slave, paid a wage that supported him for that day and left no money for savings and improvement of his condition. Capitalists got the laborers to work for them but did not reward their efforts in commensurate manner. Like Smith and the French physiocrats, Taylor believed that true wealth ultimately was derived through the profits from land. Capitalism robbed that wealth from farmers and workers through tariffs and banks, and substituted paper wealth for true prosperity.

In all societies, some groups or classes dominate the exercise of political power at a given time. In a republic, a landed gentry was best. Perhaps not coincidentally, Taylor was among the landed gentry exercising political power in Virginia. Admittedly, a landed gentry had a degree of inherited power. The disparity in wealth and power among the agrarian class was tolerable, because these resulted from working the land. The broad availability of land and the nature of agricultural work would keep such differences within appropriate limits. On the other hand, a “paper system” of banking and commercial speculation created exorbitant wealth dangerous to society. Such a paper aristocracy relied on patronage and on taxation of productive farmers and laborers to maintain itself.

Taylor’s acceptance of inequality of landed wealth as sufficiently innocuous not to threaten personal liberty or republican self-government touched on a ticklish point for American agrarians. If republican government depended on broad participation by a politically fit and independent people, exercising their freedom through their connection with the land, was it not obligatory on republican government to assure broad equality in land ownership? Those who wrote passionately about the republic of yeoman farmers and artisans inevitably had significant land holdings themselves. Taylor, for example, at one point owned three plantations in Virginia and thousands of acres of western lands, so there was a limit to how far he was willing to press agrarian fundamentalism. There was the scent of self-interest in their discussions when they opposed proposals to redistribute land through “agrarian laws.” The only estates that were redistributed were those seized from Loyalists during the Revolutionary War, and even those were generally sold to purchasers of substantial means, often for speculation.

The opposition to such redistribution was broad and deep among those who determined policy. Jefferson may have been a supporter of the idea of equality in landed estates, but was less enthusiastic about redistributive laws. As he wrote in a letter to Joseph Milligan on April 6, 1816, “To take from one, because it is thought his own industry and that of his fathers has acquired too much, in order to spare to others, who, or whose fathers, have not exercised equal industry and skill, is to violate arbitrarily the first principle of [political] association, the guarantee to everyone the free exercise of his industry and the fruits acquired by it.”

Madison devoted considerable attention to the matter in the debates over the Constitution. He was strongly critical of the more enthusiastic exponents of agrarianism and considered the whole doctrine potentially turbulent. At the Philadelphia Convention, Madison warned about the “leveling spirit” manifested in the tax rebellion of farmers in western Massachusetts in 1786, known as Shays’ Rebellion:

“An increase of population will of necessity increase the proportion of those who will labour under all the hardships of life, & secretly sigh for a more equal distribution of its blessings. These may in time outnumber those who are placed above the feelings of indigence. According to the equal laws of suffrage, the power will slide into the hands of the former. No agrarian attempts have yet been made in this Country, but symtoms [sic], of a leveling spirit, as we have understood, have sufficiently appeared in a certain quarters to give notice of the future danger. How is this danger to be guarded agst. on republican principles? How is the danger in all cases of interested coalitions to oppress the minority to be guarded agst.?”

In short, as John Adams succinctly observed in 1790, “Property must be secured, or liberty cannot exist.” People were equal in that no one should be dependent on the will of another, and property, in particular land, made this independence possible. The way to such independence was not, however, through radical redistribution schemes but through the acquisition of plentiful land. Adams observed in a May 26, 1776, letter to James Sullivan:

“The balance of power in a society accompanies the balance of property in land. The only possible way, then, of preserving the balance of power on the side of equal liberty and public virtue is to make the acquisition of land easy to every member of society, to make a division of land into small quantities, so that the multitude may be possessed of landed estates. If the multitude is possessed of the balance of real estate, the multitude will take care of the liberty, virtue and interest of the multitude, in all acts of government.”

Americans at the Founding and for several generations thereafter saw themselves and their communities as naturally fit for republicanism precisely because they were “a people of property; almost every man is a freeholder.”

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.

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“to preserve liberty, it is essential that the whole body of the people always possess arms.” – Richard Henry Lee, Federal Farmer XVIII, January 25, 1788.

A significant point of contention in the debates over the proposed United States Constitution was the maintenance of a peacetime army. Some stalwart opponents, like Eldridge Gerry of Massachusetts, wanted a ban on a “standing” army written into the Constitution. Others wanted the text to specify a maximum number and an expressly limited peacetime use, such as for border garrisons. In the minds of many Americans, standing armies were a direct and dire threat to the people’s liberties. Recalling their use by the last Stuart kings and the debate over them in the English Glorious Revolution of 1688, those Americans saw such an army as a tool of monarchical absolutism unfit for a republican system.

Instead, those critics wanted to rely on the militias of the states as the principal armed forces. Militia service long had been the mainstay of colonial self-government. It extended to all men able to bear arms, with some variations as to age and race. Universal service was a practical necessity to suppress insurrections and counter Indian raids. It also maintained the ancient republican connection between military service and qualification to participate in the community’s public affairs. Laws required individuals to keep arms sufficient to serve in the militia and, in some communities, to bear those arms while walking about.

The critics’ alarms about the Constitution were only magnified when they saw that the proposed charter also gave Congress the power to organize, arm, and discipline the militia, and to govern the militia employed in the service of the United States. They considered this to be an obvious attempt to deprive the states of control over their militias by establishing a highly trained national “select militia” composed of only a small portion of the whole eligible militia, in effect creating a standing army by another means. The distinction between the whole militia and a select militia was a common practice at the state level and was also followed by the federal government with the Militia Act of 1792. Although men fifty-five years old might be part of a state’s whole militia, they were unlikely to be called out for actual service at that age. Alternatively, critics charged that these provisions allowed Congress to neglect funding and training the militia altogether.

Supporters of the Constitution pointed to the Revolutionary War to expose the deficiencies in armament and training of the militias. General George Washington wrote the Continental Congress about his wartime experience with the militia:

“To place any dependence on the Militia, is, assuredly, resting upon a broken staff. Men just dragged from the tender Scenes of domestic life; unaccustomed to the din of Arms; totally unacquainted with every kind of military skill, which being followed by a want of confidence in themselves, when opposed to Troops regularly trained, disciplined, and appointed, superior in knowledge and superior in Arms, makes them timid, and ready to fly from their own shadows….”

The general tenor of Washington’s letter reflected a common critique. Alexander Hamilton, a former militia officer who also served in the regular Continental Army, was more generous in Essay No. 25 of The Federalist, but nevertheless made similar points:

“The American militia, in the course of the late war, have, by their valour on numerous occasions, erected eternal monuments to their fame; but the bravest of them know and feel, that the liberty of their country could not have been established by their efforts alone, however great and valuable they were. War, like most other things, is a science to be acquired and perfected by diligence, by perseverance, by time, and by practice.”

It was not enough for the Constitution’s supporters to point out the practical need for a regular army. Thoughtful critics might accept that, but still be alarmed by the danger an army posed to republican liberty. James Madison in Essay No. 46 of The Federalist sought to assuage those concerns:

“Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still, it would not be going too far to say, that the state governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence.”

Madison lay great stock in three facts, that Americans were armed, that they could form themselves into militias that would still be commanded by men chosen by them or their states, and that there existed subordinate governments—the states—to which they were more attached than to the national government. As he wrote, “Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.”

The critics were not persuaded. True, even if Congress set up a select militia, or, worse, if Congress refused to fund the militia, the states could still, under their reserved powers and general principles of federalism, maintain militias outside those parameters. That authority was eventually confirmed by the Supreme Court in 1820 in Houston v. Moore. The problem was what else Congress might do. After setting up a select militia, Congress could, the critics reasoned, then pass laws to disarm the rest of the citizenry. Something else was needed to protect the people’s liberties.

Madison in that same essay had noted the distinction between the American states and other countries. In the kingdoms of Europe with their military establishments, “the governments are afraid to trust the people with arms.” But something more concrete than reliance on the willingness of politicians to trust the people was needed. American politicians are not necessarily and inherently more respectful of the people’s liberties or less prone to oppressive actions than the European versions. If Congress and the President join to form a national tyrant, and the states have been rendered impotent, the people have the right to organize themselves to oppose that tyrant, just as the Minutemen did to King George and his regular army. As the Declaration of Independence averred, each person is endowed by the Creator with certain “unalienable rights,” and each person individually has the right to defend his life and liberty, even if the right as a practical matter sometimes might be carried out collectively. As concerns a tyrannical government, that right normally might be exercised through the state’s formal militia structure, but it does not depend on such a structure.

It is this right of self-defense exercised through a personal right to keep and bear arms that is reflected in the language of the Second Amendment. Supreme Court Justice Joseph Story made that point in a famous passage in his influential 1833 work on the Constitution. “The militia is the natural defence of a free country,” he wrote. “The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers.”

The right to life, including the right to defend oneself and others from those who wantonly pose an imminent threat to that right, is the most fundamental of all rights. No government may deprive an individual of that right, including the right of defense by means reasonable and commensurate to the threat. That right of defense extends to defense of the community. It is an individual right. While, in the latter case, it is usually exercised collectively, that is not a requirement and is not the basis of the right’s existence.

The connection between the individual nature of the right and its practical collective application when used in defense of the community is reflected in the words of the Second Amendment. As the late Justice Antonin Scalia explained for the Supreme Court in D.C. v. Heller, the right protected in the amendment’s operative clause is the individual right to keep and bear arms. The prefatory clause explains the concerns that drove the adoption of the amendment, the right of the people to organize themselves into a militia to resist tyranny even if Congress and supine state governments seek to disarm them.

The formulation of the Second Amendment through a prefatory and an operative clause is unusual among those in the Bill of Rights. But the approach was not uncommon in other settings. The original proposal by James Madison was clearer, but the definition of the right and its distinction from the concerns that gave rise to the amendment are similar: “The right of the people to keep and bear arms shall not be infringed; a well regulated militia being the best security of a free country ….”

Likewise, various state proposals to amend the Constitution followed this structure. Thus, the Virginia convention observed in relevant part on June 27, 1788, “That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit ….” Lest the formulation “the people” suggest only a collective right, that same term was used by the Virginia convention to define the right of the people to freedom of speech and of writing and publishing their sentiments. Yet such a right is clearly one that is exercised individually.

Other state ratifying conventions generally used the same structure for various proposed amendments. The report of the Pennsylvania Minority declared, “That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals, and as stranding armies in the time of peace are dangerous to liberty they ought not to be kept up ….”  The New York convention urged, “That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defence of a free State ….” [Emphasis in the original.]

What if there were no Second Amendment? Ultimately, that would make no difference. The right to life and self-defense is a fundamental or natural right conferred not by the Constitution as a matter of political grace but, in the language of the Declaration of Independence, by the Creator. It is a long-recognized right inherent in each human that even as fervent an apologist for powerful government as Thomas Hobbes accepted. As to the right to defend the community by organizing a militia, that is exactly what the colonists did at Lexington and Concord when the British sent a military force to seize American weapons. It was this engagement that started the Revolutionary War and led directly to the Declaration of Independence with its endorsement of armed resistance to tyrannical government.

The Supreme Court has embraced this reasoning as to state and local laws in cases such as McDonald v. Chicago. After all, the Second Amendment, like the rest of the Bill of Rights, only applies to the federal government. States and cities are, however, limited by the Fourteenth Amendment, which includes protection against legislative violation of fundamental rights of life, liberty, and property. The rights to individual and collective self-defense, including the right to keep and bear arms and the right to organize a militia, are integral to all three.

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.

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The principle of establishing justice through the rule of law is a means of guarding against gradual erosion of law and order into chaos to break down America’s system of self-governing. It guards against eventually ushering in tyranny to control the people rather than protect liberty by protecting the rule of law.

“…you seem…to consider the judges as the ultimate arbiters of all constitutional questions: a very dangerous doctrine indeed and one which would place us under the despotism of an Oligarchy. our judges are as honest as other men, and not more so. they have, with others, the same passions for party, for power, and the privileges of their corps. their maxim is ‘boni judicis est ampliare jurisdictionem,’ and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective controul. the constitution has erected no such single tribunal knowing that, to whatever hands confided, with the corruptions of time & party it’s members would become despots.” – Thomas Jefferson in a letter to William Charles Jarvis, Monticello, September 28, 1820.

The quoted passage by Thomas Jefferson addresses an issue that has been a repeated topic of controversy since the United States Constitution was proposed to the state conventions, namely, the role of the unelected federal courts in a system grounded in popular consent and self- government. Courts are supposed to apply the law prescribed by the people’s representatives but not be swayed by popular opinion in particular cases. An independent judiciary long has been recognized in Western constitutionalism as a fundamental component of any political system which takes seriously the individual liberties of its citizens. In ordinary criminal cases or civil suits the role of the courts as guardians of individual rights and as dispassionate decision-makers is indisputable. In cases of constitutional law and judicial review of the constitutionality of the acts of elected officials, the matter becomes more ambiguous.

Such cases are inherently political in that they present a challenge to self-government and call into question the particular competence of judges to resolve them. True, some topics, such as foreign affairs, are more political than others, such as specific guarantees of individual rights. But, as has been noted by various writers, each time a court strikes down a law, that action can be seen as a blow against self-government. When the Supreme Court decides a constitutional law case, the holding affects the entire country, not just the specific litigants. Moreover, those litigants often do not represent the opinions of a popular majority on the issue. To be consistent with the fundamental republican principle of majority rule, should unelected courts be making such decisions at all, then?

Abraham Lincoln made the point succinctly in his first inaugural address when he pledged non-interference with the specific decision in the Dred Scott case about Scott’s inability to sue for his freedom but also declared, “At the same time, the candid citizens 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 instant they are made, in ordinary litigation between parties, in personal actions, 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.” Clearly, our constitutional system has decided that judges ordinarily should make such decisions, but the inherent contradictions among first principles created thereby do not disappear.

Republican government is premised on the idea that the people, or some portion thereof deemed sufficiently qualified, decide the important public matters. Unlike in a democracy, they do so through representatives selected by them directly or, in the original design for the Senate and the President, more circuitously. Should a 5-4 majority of the unelected Supreme Court effectively have the final word, or should a majority of the people’s representatives have the power to override the Court’s holding on the matter? This is a particular problem in that the Supreme Court is selected from a very small class in society, an elite whose cultural and political values differ sharply from those of the American people as a whole. Should federal judges be elected, rather than appointed? Indeed, considering the classic republican principle that the greater the power, the shorter the term in office in order to avoid oligarchic control, should federal judges serve very short terms before returning to their ordinary stations in life? In turn, would such alternatives adequately preserve the necessary independence of judges?

All these questions were raised by various Anti-federalist writers during the debate over the adoption of the Constitution. The potential life tenure of federal judges was a glaring red flag for critics of the proposed charter. As a textual matter, the Constitution fixes their tenure by “good behavior,” but that ambiguous concept itself was tied to the practice of impeachment. Because impeachment in England had come to be seen as a limited tool requiring something more than political disagreement or general unpopularity, the Constitution expressly provided specific, and quite restricted, grounds for removal of officers by that method, effectively creating “life tenure.” But Antifederalist attacks on the federal courts were not limited to the issue of life tenure. Although the Constitution is silent on the matter, the opponents soon focused on the perceived ability of the Supreme Court to sit in judgment of the constitutionality of the actions of the people’s representative in Congress and the state legislatures.

A very sophisticated attack on the Supreme Court appeared in 1787 and 1788 in various essays of Brutus, one of two pen names generally attributed to the New York judge, and eventual state chief justice, Robert Yates. Yates had been selected as one of New York’s three delegates to the Philadelphia Convention but, along with Judge John Lansing, Jr., had left that assembly early because he objected to the nationalizing tendencies he saw in the emerging draft. His essays were authoritative during the debates in the critical New York ratifying convention.

In Essay No. 11, published January 11, 1788, Brutus observed that Article III, Section 2, of the Constitution vests the power to determine all questions that may arise under the Constitution. He questioned whether that power would be used for the general good. He explained his concerns, “[I[n their decisions, they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or controul their adjudications. From this court there is no appeal. And I conceive the legislature themselves, cannot set aside a judgment of this court, because they [the judges] are authorised by the constitution to decide in the last resort.”

Brutus worried that the federal courts would interpret the Constitution’s often ambiguous language broadly in favor of the general government to the eventual “subversion of the legislative, executive, and judicial powers of the individual states.” Applying the history of the English court of exchequer, he charged that the courts would extend their jurisdiction and influence well beyond that understood at their creation. “Every body of men invested with office are tenacious of power; they feel interested, and hence it has become a kind of maxim, to hand down their offices, with all its rights and privileges, unimpaired to their successors; the same principle will influence them to extend their power, and increase their rights; this of itself will operate strongly upon the courts to give such a meaning to the constitution in all cases where it can possibly be done, as will enlarge the sphere of their own authority. Every extension of the power of the general legislature, as well as of the judicial powers, will increase the powers of the courts; and the dignity and importance of the judges, will be in proportion to the extent and magnitude of the powers they exercise. I add, it is highly probable the emolument of the judges will be increased, with the increase of the business they will have to transact and its importance.”

In Essay No. 15, published March 20, 1788, Brutus again addressed the danger to the people’s liberty and to the existence of the state governments from the lack of any control over the constitutional rulings of the Supreme Court. “There is no power above them, to controul any of their decisions. There is no authority that can remove them, and they cannot be controuled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.”

For Brutus, the solution would have been to make such Supreme Court rulings subject to review by the legislature, much as English court holdings often were subject to review by the House of Lords. “Had the construction of the constitution been left with the legislature, they would have explained it at their peril; if they exceed their powers, or sought to find, in the spirit of the constitution, more than was expressed in the letter, the people from whom they derived their power could remove them [through elections], and do themselves right; … A constitution is a compact of a people with their rulers; if the rulers break the compact, the people have a right and ought to remove them and do themselves justice; but in order to enable them to do this with the greater facility, those whom the people chuse at stated periods, should have the power in the last resort to determine the sense of the compact; if they determine contrary to the understanding of the people, an appeal will lie to the people at the period when the rulers are to be elected, and they will have it in their power to remedy the evil; but when this power is lodged in the hands of men independent of the people, and of their representatives, and who are not, constitutionally, accountable for their opinions, no way is left to controul them but with a high hand and an outstretched arm.” [Emphasis in the original.]

The convincing effect those and similar other critical essays Yates wrote had on New Yorkers finally prompted Alexander Hamilton to write a response published on May 28, 1788, just ahead of the meeting of the New York ratifying convention on June 17. Essay No. 78 of The Federalist is among the longest of the papers and the one most frequently cited by the Supreme Court. Hamilton agreed with Yates that the federal courts would interpret the Constitution, because the Constitution being law, it “is the proper and peculiar province” of them to do so. Because judges owed their powers to the Constitution, just as did the legislators, the courts would, and must, disregard statutes which conflicted with the fundamental law of the Constitution. Hamilton dismissed Yates’s contention that this implied a superiority of the judicial branch, claiming instead that “[I]t is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.” Thus, Hamilton laid the groundwork for an independent federal judiciary in matter of constitutional law.

As his quoted letter attests, Jefferson shared Yates’s concerns and discomfort about the federal courts, especially the Supreme Court’s power of constitutional judicial review. Jefferson believed that the rule of law and the fundamental structure of a government of divided powers created under the Constitution was best served under a “departmental theory” of final authority. While the Supreme Court might have the final say as to how the courts will decide cases, their opinions about the constitutionality of a co-equal branch’s acts, although entitled to respect, were not binding on those other branches. The remark from Lincoln’s first inaugural speech, quoted above, is an application of that theory. So is the admonition, perhaps apocryphal, attributed to President Andrew Jackson on the occasion of an unpopular opinion by Chief Justice John Marshall in Worcester v. Georgia, “John Marshall has made his decision, now let him enforce it.”

Hamilton was not insensitive to such criticisms in his essay. He adamantly insisted that the judges’ life tenure was necessary to preserve their independence. Still, the scope of the courts’ constitutional judicial review must be limited. He wrote, “To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; …” The rule of law demands that such rules be clear and constant, knowable, and predictably applied. This was particularly important with the Constitution, which was “law” because it was written. Therefore, it was the letter of the document, not some vague notion of its “spirit” that the courts must apply, lest their opinions become exercises of “WILL instead of JUDGMENT,” which would merely be the “substitution of their pleasure to that of the legislative body.” [Emphasis in the original.]

Moreover, courts could disregard only those statutes which were clearly unconstitutional.

“If there should happen to be an irreconcilable variance between the two [a statute and the Constitution], that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.” Using tortuous arguments to discover theretofore unknown penumbras and emanations from constitutional language, or investing that language with personal notions of good policy or better morality would not suffice.

Finally, Hamilton laid down a crucial limitation by specifying the object of constitutional judicial review. Judges must be independent and zealous protectors of liberty rooted in law. But there was a limit to judicial independence, lest it become itself a threat to republican rule. “This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors [tempers], which the arts of designing men or the influence of particular conjunctures sometimes disseminate among the people themselves; and which, though they speedily give place to better information and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.” Judicial review was to be conservative, in the sense of protecting the received constitutional order from the excesses of momentary popular passions as well as from “the cabals of the representative body.” That, too, is consistent with the order provided by the rule of law. It is also consistent with republican self-government, as it merely seeks to slow down a heedless rush to action by allowing for further reflection and the triumph of reason.

What is not consistent with republican self-government and legitimate Hamiltonian judicial review is when the judiciary assumes the role of constitutional innovator. For example, when the Supreme Court abruptly overturns long-settled and widespread laws that affect basic institutions of society or traditional social relations, the justices are exercising independence. But they are not guarding the liberty of individuals or political minorities from temporary majoritarian passion. They are, in effect, amending the Constitution by a simple majority vote of one branch of government composed of a few members enjoying life tenure, the branch that has no accountability to the public and is drawn from a very small elite. That is consistent with neither the stability and predictability associated with the rule of law nor republican self- government. In taking such actions, the Court assumes the role of a constitutional convention.

Relying on the postulate of popular sovereignty, Hamilton, Madison, and other supporters of the Constitution emphasized as a first principle the people’s right to change their constitutions at any time and for any reason. Such innovations should not be undertaken lightly, and at least as codified in Article V of the Constitution, require a difficult super-majoritarian process involving multiple governmental bodies, radically different from judicial constitutional amendment by a 5-4 vote.

There is much to admire in a culture which has preserved for so long an independent judiciary within its constitutional structure. One hopes that this remains the norm, and that voices who have suddenly now discovered a political advantage from changing the rules of the game will go unheard. The Supreme Court has warranted the respect it has enjoyed overall as an institution, because in most cases the justices have performed their roles with wisdom and sagacity. But they are political actors, and their judgment has not been infallible. To preserve that respect and the independence required to counteract majoritarian passions when the need arises, the Court is well-advised to stay true to its role as the guardian of the rule of law and the received Constitution, not as a constitutional lawgiver leading a compliant people.

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.

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There are however some things deducible from reason, and evidenced by experience, that serve to guide our decision upon the case. The one is never to invest any individual with extraordinary power; for besides his being tempted to misuse it, it will excite contention and commotion in the nation for the office. Secondly, never to invest power long in the hands of any number of individuals. The inconveniences that may be supposed to accompany frequent changes are less to be feared than the danger that arises from long continuance.” – Thomas Paine, Dissertation on First Principles of Government, 1795.

Advocates of republican systems long have insisted on certain features in a government to qualify it as a republic. Among those are the right to vote vested in a variable, yet sufficiently substantial, portion of adult residents, the election of the important figures in government, regular elections, short terms for those elected, rotation in office through restrictions on re-election, and the right of voters to recall elected officials. The objectives of these conditions are to keep the governing members responsive to the people’s wishes, to promote fresh blood in positions of authority, and to allow more persons to participate in governing, thereby bestowing legitimacy on the system even in the eyes of those who may lose a particular political contest.

The opponents of the United States Constitution found much to criticize in what they saw as the deficient republicanism of the proposed charter. Colonial practice had been annual or even semi-annual terms for legislators. Early state practice generally continued that tradition, although some permitted longer terms for the upper house of a bicameral legislature. Annual or biennial terms became the norm for governors. For example, the Massachusetts Constitution of 1780 provided that the governor, lieutenant governor, and senators and representatives in the state legislature be elected annually. The Virginia constitution of 1776 provided for annual election for the House of Delegates, the lower house of the state legislature, but allowed four-year terms for state senators, the terms ending on a rotating basis, with one-quarter of senate offices up for election each year. The governor was elected annually. He could be re-elected for three terms but then became ineligible for re-election for at least four years.

At the level of the national government, the Articles of Confederation left the precise mode of choosing delegates to the states, but limited their terms in Congress to three years in six. Virginia, for example, chose its delegates to the Confederation Congress anew annually. The Northwest Ordinance of 1787, enacted by the Confederation Congress to govern the Old Northwest territory also required annual election to the territorial legislature.

It is today taken for granted that only citizens might vote. But that was not always the American practice. The Constitution requires citizenship for those elected to either house of Congress and to the Presidency. But there is no similar qualification required for those doing the electing. The Constitution left it to the states to sort out. The Massachusetts Constitution of 1780, for example, discussed voting by “inhabitants” and imposed age, residency, and property qualifications, but not separate citizenship.

Nor was there a lack of awareness of the concept of citizenship versus residency. The Northwest Ordinance provided that voting for territorial representatives was open to two classes: those who were citizens of other states, had resided in the territory for one year, and owned a specified amount of property; and those who were not citizens, but had resided in the territory for three years, and owned the same specified amount of property. The Ordinance made a similar distinction between citizens and non-citizens for candidates for election to the territorial legislature.

States generally allowed non-citizens to vote well into the 19th century to attract immigrants. It is a common trope in historical accounts to write about urban political machines whose operatives at election time waited at the docks to welcome those fresh off the ships from Europe with job opportunities, a small gift, and a voting card filled out in favor of their benefactors. At the level of presidential elections, it was not until the election of 1928 that all states restricted voting to American citizens. Even today, about a dozen municipalities, mostly in Maryland, allow non-citizens to vote in local elections.

While there was no significant debate about citizenship for voting, the length of terms of office was a matter of significant contention at the convention in Philadelphia and in the state ratifying conventions. The Constitution’s supporters tried different approaches to blunt attacks. One was to cherry-pick the length of terms of particular state offices or offices in Great Britain. As to the two-year terms of the House of Representatives, James Madison in No. 53 of The Federalist agreed that there must be frequent elections, but “what particular degree of frequency may be absolutely necessary for the purpose, does not appear to be susceptible of any precise calculation,…” Thus, a range of terms of service reasonably would be sufficiently republican.

To illustrate his point, Madison contrasted the terms of the lower houses of various state legislatures:

“In Connecticut and Rhode Island, the periods are half-yearly. In the other states, South Carolina excepted, they are annual. In South Carolina they are biennial; as is proposed in the federal government. Here is the difference as four to one, between the longest and the shortest periods; and yet it would be not easy to show, that Connecticut or Rhode Island is better governed, or enjoys a greater share of rational liberty, than South Carolina;…”

If anything, shorter terms were undesirable, in that they encouraged electoral fraud, a concern not unheard of today: “[S]purious elections cannot be investigated and annulled in time for the decision to have its due effect….Hence a very pernicious encouragement is given to the use of unlawful means, for obtaining irregular returns.” It might be added that representatives complain that, even with modern transportation, two-year terms are burdensome because they need to spend so much time campaigning for re-election. It should be noted that these complaints have increased as the members of Congress have become full-time legislators and the size of the government has expanded.

Even if long terms of office might be undesirable as a matter of general consideration, there might be more justification for a longer term in Congress than in state or local legislative councils. National affairs regulated by Congress require greater acquisition of knowledge of complex policies and of the needs of other states. Hence, more time is needed to become sufficiently familiar with these complexities, whereas in a state the laws are uniform and the people and their needs are less diversified. In the end, Madison argued, “the business of federal legislation must continue so far to exceed, both in novelty and difficulty, the legislative business of a single state, as to justify the longer period of service assigned to those who are to transact it.”

The six-year terms for Senators came in for especially harsh criticism. Madison and other Federalists frequently defended the Senate’s long terms on two grounds, the need for a stabilizing influence over the popular passions likely to influence the short-term focus of the more democratic House of Representatives, and the Senate’s role in the potentially complex matters of foreign relations. After a brief attempt to analogize the terms of office of United States Senators to the five-year terms of senators in the state of Maryland, Madison in Essay No. 63 of The Federalist emphasized the role of the Senate as a stabilizing influence on the House of Representatives both by taking a “longer” view on policy and because of 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.” As well, there was the Senate’s function in foreign affairs which required sophistication, wisdom, and knowledge. Moreover, longer terms gave that body the stability to provide a “national character” needed for the United States to be effective in dealings with foreign nations.

The critics were not convinced. Even moderate opponents saw the Senate’s terms as dangerous. In Essay of Brutus No. 16 of April 10, 1788, the New Yorker Robert Yates agreed that the Senate’s stabilizing role and its tasks in foreign affairs required longer terms than those of the typical state legislature or of the House of Representatives. Yates also agreed that the Senate was to represent the country’s “natural” aristocracy. But the danger to republicanism remained. “Men that hold office for long become detached from their constituents.” This is especially a problem with the Senate, as “they will for the most part of the time be absent from the state they represent, and associate with such company as will possess very little of the feelings of the middling class of people. For it is to be remembered that there is to be a federal city, and the inhabitants of it will be the great and the mighty of the earth.” [Emphasis in original.]

The solution for Yates and for his fellow New York Anti-federalist Melancton Smith, writing as The Federal Farmer, was to reduce the term to four years. In addition, there must be rotation in office—Yates proposed a limit of three terns for Senators—and recall as existed in the Articles of Confederation. Otherwise, the reality will be that Senators will be reelected over and over for life, due to the influence of their “friends.” “Everybody acquainted with public affairs knows how difficult it is to remove from office a person who is long been in it. It is seldom done except in cases of gross misconduct. It is rare that want of competent ability procures it.”

The concerns of the Constitution’s critics found their way into proposals for reform even as the states approved the new plan of government. Among the list of proposed amendments from the Virginia convention sent on June 27, 1788, was one that called for rotation in office as a very useful tool to limit the potential threat to the people’s liberty from an entrenched political class: So that members of legislative and executive branches “may be restrained from oppression by feeling and participating the public burdens, they should, at fixed periods, be reduced to a private station, return into the mass of the people, and the vacancies be supplied by certain and regular elections,…”

None of the proposals have been adopted. Senate terms are still six years. There is no rotation in office, and an attempt by the people of Arkansas to provide “term limits” for members of both houses of Congress elected in Arkansas was struck down as unconstitutional by the United States Supreme Court. Likewise, an attempt by people in New Jersey even to collect signatures to allow a recall vote for a Senator was blocked by the state supreme court as unconstitutional. Meanwhile, members of Congress, especially Senators, generally hold office for decades, often until death. It is common for them to be “absent from the state they represent.” They live in the “federal city,” returning to their states only at election time. The environs of the District of Columbia include the wealthiest areas of the United States, so it may also be rightly said that they associate with “the great and mighty of the earth,” who “possess very little of the feelings of the middling class of people.”

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.

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The Framers of the United States Constitution considered ex post facto laws and bills of attainder so repugnant to justice that the document expressly bans them twice. In Article I, Section 9, the prohibition applies to the federal government. The subsequent section of the charter likewise targets state enactments. These provisions are a proto bill of rights in the body of the original document, which makes them unusual in that opponents of the Constitution often cited the lack of a bill of rights as the reason for their stance. Still more thought-provoking is the claim often made then that such laws would be invalid even without an express constitutional provision. That position required its advocates to appeal to higher principles of justice or law as limiting the power of legislatures.

Emblematic of that approach was the opinion of Justice Samuel Chase in the 1798 case of Calder v. Bull. The suit involved a Connecticut case in which a will initially had been denied probate, to the benefit of certain of the deceased’s heirs at law, Mr. and Mrs. Calder. The state legislature then enacted a law which provided for a new hearing that was not permitted under the statute in effect when the original proceedings were held. The will was then admitted to probate, which benefitted the beneficiaries under that will, Mr. and Mrs. Bull.

Justice Chase defined ex post facto laws as,

“1st. Every law that makes an action done before the passing of the law and which was innocent when done, criminal and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the offender.”

He also gave examples of English precedents to illustrate the dangers of such laws. Bills of attainder were acts of Parliament that imposed the death penalty on an individual for a criminal act. If Parliament imposed a lesser penalty, the law was a bill of pains and penalties. Either one was odious. Often, but not always, they operated ex post facto:

“These acts were legislative judgments; and an exercise of judicial power. Sometimes they respected the crime, by declaring acts to be treason, which were not treason, when committed; at other times, they violated the rules of evidence (to supply a deficiency of legal proof) by admitting one witness, when the existing law required two; by receiving evidence without oath; or the oath of the wife against the husband; or other testimony, which the courts of justice would not admit; at other times they inflicted punishments, where the party was not, by law, liable to any punishment; and in other cases, they inflicted greater punishment, than the law annexed to the offence.”

But Chase went further and declared that a legislature could not pass bills of attainder or other ex post facto laws, even if there were no express constitutional prohibition. He urged that such laws were against the social compact through which people enter into political society and against fundamental principles of free republican government. A legislature that undertook such an action might engage in an “act” but had not made a “law,” because a law must not conflict with the fundamental purposes for which governments are formed by the people, to protect their persons and property.

He provided examples of the types of laws that are so destructive of personal liberty and private property and so manifestly unjust, that they are obvious and flagrant abuses of power:

“A law that punished a citizen for an innocent action, or, in other words, for an act, which, when done, was in violation of no existing law; a law that destroys, or impairs, the lawful private contracts of citizens; a law that makes a man a Judge in his own cause; or a law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it. The genius, the nature, and the spirit, of our State Governments, amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them.”

If bills of attainder and ex post facto laws were so obviously contrary to justice, reason, and the essential purposes of governments, why then is there a need for specific prohibitions in the Constitution? Some delegates in the Philadelphia convention and in the state ratifying conventions raised that very question. A couple of reasons present themselves.

Consider another opinion in Calder, that of Justice James Iredell. He agreed about the definition of ex post facto laws and their unconstitutionality under the express provisions of the Constitution. But he also warned that, in their absence, a court was incompetent to declare such laws void.

“If, then, a government, composed of legislative, executive and judicial departments, were established by a constitution which imposed no limits on the legislative power, the consequence would inevitably be that whatever the legislative power chose to enact would be lawfully enacted, and the judicial power could never interpose to pronounce it void. It is true that some speculative jurists have held that a legislative act against natural justice must in itself be void, but I cannot think that under such a government any court of justice would possess a power to declare it so.”

The reason was that natural justice was not a sufficiently precise concept to allow judges to override the legislature’s power to make all laws which are not expressly prohibited to it: “The ideas of natural justice are regulated by no fixed standard; the ablest and the purest men have differed upon the subject, and all that the court could properly say in such an event would be that the legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice.”

Another reason was that, in fact, there had been such laws passed. During the debate in the Virginia ratifying convention in June 1788, Patrick Henry defended the use of bills of attainder and ex post facto laws in some circumstances. His example was the case of one Josiah Philips, a loyalist guerrilla leader during the Revolutionary War. Philips’s band had repelled a militia sent by then-governor Patrick Henry. Henry then had sought an attainder of Philips. None other than Thomas Jefferson had drafted the bill of attainder which the legislature had adopted unanimously on May 28, 1788. The bill accused Philips and his associates of various crimes amounting to treason and directed that they be executed expeditiously after their capture. Moreover, if those attainted had not turned themselves in to the authorities, the act directed that “it shall be lawful for any person with or without orders, to pursue and slay the said Josiah Philips and any others who have been of his associates or confederates… or otherwise to take and deliver them to justice to be dealt with according to law provided that the person so slain be in arms at the time or endeavoring to escape.”

Edmund Randolph, the state attorney general at the time, had opposed the attainder. Instead, when Philips was caught, he was tried and convicted by a jury for grand theft of 28 hats and five pounds of twine. That made little difference in the end, as the punishment for that conviction also was death by hanging. Both Henry and Jefferson years later still defended the attainder of someone they considered the equivalent of a pirate engaged in crimes against humanity and therefore hostis humani generis, beyond the protection of the law.

Nor was Virginia alone. Many other states engaged in the practice against Loyalist Tory sympathizers. It must be noted, however, that actual executions under such attainders were rare, estimated by one authority to number 15 during the entire war. The Pennsylvania legislature, acting on its own initiative or at the instigation of its judiciary, enacted attainders for treason in hundreds of cases, although only four ended in hangings, all of Quakers. Due to its pacifism, that religious minority was broadly suspected to be at least unfriendly to the Patriot side. A particularly colorful tale is that of the members of the extended Doane family of Loyalist Quakers who helped the British while marauding in the countryside.

Several states used such attainders, even though their own constitutions prohibited them. It was to these events that James Madison was reacting in The Federalist No. 44 in language similar to Justice Chase’s,

“Bills of attainder, ex post facto laws, and laws impairing the obligations of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. The two former are expressly prohibited by the declarations prefixed to some of the state constitutions, and all of them are prohibited by the spirit and scope of these fundamental charters. Our own experience has taught us, nevertheless, that additional fences against these dangers ought not to be omitted.”

Although all justices in Calder v. Bull agreed that ex post facto laws were those that retroactively altered rules about conduct to the detriment of the now-accused, there apparently was less unanimity about that definition during the debate over the Constitution. Some constitutional historians, most notably Professor William Crosskey writing in the mid-20th century, have argued that the phrase ex post facto was commonly understood in the 18th century to apply to any retroactive law. They have reviewed the records of the debates at the Philadelphia convention, primarily the printed Journal of the Convention, James Madison’s notes and notes taken by another delegate, David Brearley, a future New Jersey chief justice, and by convention president George Washington. Crosskey also analyzed numerous other contemporary English and American sources of 18th-century usage of the term.

The more restricted definition arose when, according to Madison’s notes, some delegates registered confusion about the phrase. John Dickinson, a much-respected authority on constitutional law at the time, then claimed to have researched the matter by consulting Blackstone’s influential Commentaries on the Laws of England. He concluded that Blackstone defined the phrase as applying only to retrospective criminal laws. The problem is that this definition appears to conflict with the Journal and with another part of Madison’s notes recording a debate about the clause a day earlier, on August 28, 1787, where the speakers assumed that the phrase applied more broadly to all retrospective laws. As well, the notes of Brearley and Washington reflect that earlier, broader understanding and say nothing about Dickinson’s remarks. Dickinson’s own papers about the Constitution do not show that he made those remarks.

Ten months later, during the intense debates in the Virginia ratifying convention, Patrick Henry also charged that the ex post facto clause applied to all retrospective laws, criminal and civil. Henry objected that, if no such laws were permitted, would the old worthless continental paper dollar notes have to be repaid at face value with gold and silver because no law could discharge such payment retroactively. Faced with such assertions, it is surprising that neither Madison nor his fellow delegate to the Philadelphia convention Edmund Randolph cited Dickinson or Blackstone. As a result, these historians speculate that Madison’s position in the Virginia convention and in essay No. 44 of The Federalist, which was adopted in Calder was not correct and that, indeed, Madison made up the Dickinson remarks and added them to his notes some years after the events.

Whatever the understanding about the scope of ex post facto was in 1787, the more limited meaning put forth by Madison in his essay and in the Virginia convention, and adopted by the justices in Calder is the accepted meaning today. Retroactive criminal laws create profound instability in that no one can predict whether one’s conduct is outside the law, because the law might be changed retroactively at any time. Their potentially destructive effect on people’s lives justifies Justice Chase’s description of ex post facto laws as contrary to basic conceptions of justice and a fundamental violation of the proper relationship between the government and the governed.

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.

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State flags on each state within its border inside of a map of the United States

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

“Sir, I contemplate the abolition of the state constitutions as an event fatal to the liberties of America. These liberties will not be violently wrested from the people; they will be undermined and gradually consumed. On subjects of the kind we cannot be too critical…Will it not give occasion for an innumerable swarm of officers, to infest our country and consume our substance? People will be subject to impositions which they cannot support, and of which their complaints can never reach the government.” – Melancton Smith, Delegate, First Provincial Congress in New York; June 27, 1788 Notes during days beginning the New York Ratifying Convention.

Melancton Smith is not a household name when considering the adoption of the United States Constitution. But he was well known to the members of the crucial 1788 New York ratifying convention. Through his writings, his ideas became well known beyond his state, even if his name did not. In the convention, Smith was aligned with Governor George Clinton, Aaron Burr, and the upstate Albany faction against John Jay, Alexander Hamilton, and the downstate New York City faction. Clinton was a wily politician and powerful political figure in the state and, later, in the country. He was also a prominent and effective antifederalist leader, who traditionally has been thought to be the writer of a series of antifederalist essays appearing under the pseudonym Cato.

Smith, too, was a prolific critic of the proposed Constitution. Indeed, he was such an effective advocate in the state ratifying convention for the opponents of the Constitution that Alexander Hamilton and other federalists felt obliged to respond to his challenges and criticisms. Smith had been a lawyer and was a merchant, so his style was logical, and his substantive critique was moderate and pragmatic. He appears to have been the author of a series of antifederalist essays previously attributed to the Virginian Richard Henry Lee and published anonymously under the name “Letters from a Federal Farmer to the Republican.”

Like the essays by Cato (George Clinton) and Brutus (attributed to Judge Robert Yates), those of the Federal Farmer posed a real threat to the adoption of the Constitution. Alexander Hamilton replied to them directly by name in Nos. 67 and 68 of The Federalist, the only antifederalist authors whom he named expressly. But there was a difference. With some justification, Hamilton considered the Cato essays to be works of political expedience, and Governor Clinton to be swayed by personal concerns about looming restrictions on the powers of state governments, should the Constitution be adopted. He castigated Cato as presenting deliberate falsifications of the constitutional structure of the executive branch. Falling into passages of purple prose at times, Hamilton singled out Cato as an example, “This bold experiment upon the discernment of his countrymen, has been hazarded by the writer who (whatever may be his real merit) has had no inconsiderable share of the applauses of his party; and who, upon this false and unfounded suggestion, has built a series of observations equally false and unfounded.”

By contrast, the Federal Farmer received, reluctantly, some faint praise. Hamilton noted that the method of selecting the president had received little criticism. Referring specifically to Federal Farmer, he wrote, “The most plausible of these, who has appeared in print, has even deigned to admit, that the election of the president is pretty well guarded.”

Smith eventually broke rank with the antifederalist opposition and voted in favor of the Constitution for practical reasons. By the time the convention voted, the requisite nine states had already approved it, so the Articles of Confederation had been supplanted. Then, the Virginia convention, where the result had been uncertain, voted narrowly to approve the Constitution. Virginia was the largest and wealthiest state. With Virginia out, there was reason to believe that the Constitution ultimately was not viable as a plan of union. With Virginia committed to the new charter, New York’s hand was forced, Smith believed. His defection helped the Constitution’s supporters gain a crucial 30-27 favorable vote, although the price was a letter that listed 25 proposed provisions in a bill of rights and 31 amendments to the Constitution, to be addressed through a second “general convention,” which never materialized.

Particularly because he was such a voice of moderation, Smith’s concerns about the threat of a far-away general government to the liberty of the people struck a chord. Moreover, his warnings were closely tied to the historical perceptions of Americans regarding Great Britain, including the charge that the people’s complaints would fall on deaf ears with a distant government, that such a government would tax and control them in ways that the people could not support, and, recalling sentiments from the Declaration of Independence, that such government would send in “an innumerable swarm of officers, to infest our country and consume our substance.”

Finally, his criticism simply “made sense.” Government close by is more likely to respond to local needs and to mirror local values than government in a remote location. It was a self-evident truth to classic republican writers that republics were homogeneous, with many shared traits and values among the people, and small in area and population. Although republics could be larger than pure democracies and exercise self-government through the principle of representation, the sacrifice that civic virtue often demanded under either system was rooted in notions of friendship and cultural affinity. Social science research has shown that the larger and more diverse the population of a polity is, the less civic engagement occurs. The result is that a ruling elite becomes distant from the general population, and self-government becomes a cherished fiction, a Platonic “noble lie,” more theoretical than real. Such homogeneity and small size have potential downsides of provincialism and inflexibility, of a “small-town” staidness, but there is a limit to the size of what truly could be characterized as a community.

Antifederalist writers made much of this connection among size, cultural affinities, civic virtue, and republican government. They repeatedly invoked the danger of “consolidation” under the new Constitution, that is, the fusion of the states into a single large unitary government, an empire, destined to become tyrannical. As Melancton Smith warned, that process of effective abolition of the state constitutional systems would not be a sudden event. Rather, it would be gradual but irresistible and inevitable, as the general government grew and expanded its powers ever more intrusively into traditionally local matters. “These liberties will not be violently wrested from the people; they will be undermined and gradually consumed.”

The potency of this republican challenge to the Constitution created an urgency for the charter’s supporters to respond vigorously. They used several arguments. Federalist writers commonly pointed to the limited powers which the Constitution vested in the general government in contrast to what they described as the vast reserved powers of the states. For example, James Madison used this tactic in The Federalist, No. 45:

“The powers delegated to the federal government, are few and defined. Those which are to remain in the state governments, are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers of the several states will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the state.”

Another approach was to emphasize the effect of the natural rivalries of politicians fostered by the horizontal separation of powers in the structure of federalism. In the classic essay No. 51 of The Federalist, James Madison presented as a key feature of the Constitution the simultaneous separation and blending of powers in a system that guarded against oppressive government not by a myopic focus on civic virtue but on structures that enabled “Ambition…to counteract ambition.” “In a single republic [such as the several states], all the power surrendered by the people, is submitted to the administration of a single government; and the usurpations are guarded against, by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people, is first divided between two distinct governments [state and national], and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other; at the same time that each will be controlled by itself.”

Still another was to go on the offensive and to point out that even most American states at the time barely qualified as classic republics in view of their large territorial spread and population, and to note concurrently that the state constitutions lacked various protections so dear to antifederalist writers. As to size of republics, antifederalists cited Montesquieu, but Hamilton rejoined in No. 9 of The Federalist that “the standards he had in view were of dimensions, far short of the limits of every one of these states. Neither Virginia, Massachusetts, Pennsylvania, New York, North Carolina, nor Georgia, can by any means be compared with the models from which he reasoned and to which the terms of his description apply.”

As to protections of liberty, Hamilton objected in The Federalist No. 84,

“The most considerable of the remaining objections is, that the plan of the convention contains no bill of rights. Among other answers given to this, it has been on different occasions remarked, that the constitutions of several of the states are in a similar predicament. I add, that New York is of the number. And yet the persons who in this state oppose the new system, while they profess an unlimited admiration for our particular constitution, are among the most intemperate partizans of a bill of rights.”

In similar vein, Madison asserted that the danger of factions, the bête noire of republican belief, was much greater in the states than in the union. Waxing metaphorical, he insisted in No. 10 of The Federalist,

“The influence of factious leaders may kindle a flame within their particular states, but will be unable to spread a general conflagration through the other states: a religious sect may degenerate into a political faction in a part of the confederacy; but the variety of sects dispersed over the entire face of it, must secure the national councils against any danger from that source: a rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the union, than a particular member of it; in the same proportion as such a malady is likely to taint a particular county or district, than an entire state. In the extent and proper structure of the union, therefore, we behold a republican remedy for the disease most incident to republican government.”

Finally, the Federalists pointed out the psychological tendency of voters to connect with local politicians. Hamilton described this in No. 17 of The Federalist:

“It is a known fact in human nature, that its affections are commonly weak in proportion to the distance or diffusiveness of the object. Upon the same principle that a man is more attached to his family than his neighbourhood, to his neighbourhood than to the community at large, the people of each state would be apt to feel a stronger bias towards their local governments, than towards the government of the union, ….”

Madison echoed that analysis in No. 46 of The Federalist and challenged Smith’s assertion that the new government would infest the country with swarms of bureaucrats:

“Many considerations, besides those suggested on a former occasion, seem to place it beyond doubt, that the first and most natural attachment of the people, will be to the governments of their respective states. Into the administration of these, a greater number of individuals will expect to rise. From the gift of these, a greater number of offices and emoluments will flow…. With the affairs of these, the people will be more familiarly and minutely conversant; and with the members of these, will a greater proportion of the people have the ties of personal acquaintance and friendship, and of family and party attachments.”

It is notable that the defenders of the Constitution at the time agreed that a distant government had systemic tendencies towards unresponsiveness and autocracy. They sought to blunt that criticism by defending their new “confederated republic.” As noted above, a significant part of that defense was that the general government’s powers were few and directed at truly “national” concerns which would arise in only unusual and occasional situations, whereas the states would deal with the everyday matters most directly and closely affecting the people. In hindsight, a fair observation is that many of the alarms the Antifederalists raised about an intrusive and overweening central government have materialized. The Federalists’ responses often appear quaint and unrealistic, perhaps even utopian, in light of events. Their own perceptions of human nature must have alerted them to the weaknesses of their positions and the veracity of the objections of calm and pragmatic critics such as Smith.

That said, Madison, Hamilton, and the other Federalists were not disinterested commentators. They were intent on completing their project of adopting the Constitution. As well, just because the Antifederalists appear prescient in their criticisms of the national government does not mean that their confidence in the republican attributes of state governments would have resulted in less control and regimentation of people’s lives. States and localities in fact do still control the main of people’s lives, just as the Federalists argued. Can it really be said that many state governments have not also “undermined and gradually consumed” the liberties of the people, that those governments have not created “an innumerable swarm of officers, to infest our country and consume our substance,” and that the people have not become “subject to impositions which they cannot support, and of which their complaints can never reach the government”?

We live in a country nearly one hundred times the population and four times the area of the United States when the Constitution was adopted. The principle of subsidiarity espoused by Melancton Smith in a republican constitution has the virtues of more direct popular participation and influence, more efficient implementation of political decisions, better reflection across broader domain of the diversity of local values and needs, and, hence, more immediate claims to political legitimacy. The many commentators on effective self-government who have warned over the centuries about the practical limits of republics in terms of area, population size, and cultural heterogeneity were keen observers of political systems. A devolution of more power away from the national government to the states and from the states to the localities well might be consistent with better republican government. Yet, with many current cities and metropolitan areas each exceeding the entire population of the United States in 1787, there will be further questions about how realistic it is today to expect republican government in anything but name even at the local level. Benjamin Franklin’s challenge remains, when he said about the nature of the government under the Constitution, “A republic, if you can keep it.”

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.

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Guest Essayist: Joerg Knipprath
King John signing Magna Carta, 1215. Depicted is a signature, though typically an official seal would be affixed. Illustration by James William Edmund Doyle, 1864.

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

“I am an Enemy to Vice, and a Friend to Vertue. I am one of an extensive Charity, and a great Forgiver of private Injuries: A hearty Lover of the Clergy and all good Men, and a mortal Enemy to arbitrary Government and unlimited Power. I am naturally very jealous for the Rights and Liberties of my Country; and the least appearance of an Incroachment on those invaluable Priviledges, is apt to make my Blood boil exceedingly.” Silence Dogood, a pseudonym used by Benjamin Franklin in an opinion editorial, No. 2, published April 16, 1722 in the New-England Courant.

In the 1215 version of Magna Carta, King John acknowledged, “We have granted moreover to all free men of our kingdom…all the liberties below…” “Free men” were the knights, barons, and small class of free tenants of land, not the large majority of the population who were villeins or other serfs. There follows a long list of such “concessions,” some profound, others whose inclusion must have been due to some alarming event, or some quirk of history or contemporary custom or feudal practice. Whatever the reason, even fundamental matters, such as that no tax shall be imposed except by the common council of the kingdom, or that criminal convictions —at least for nobles and free men—must be through trial before a jury of peers, were cast as matters of the king’s grace. Perhaps that formulation was due to the fact that the barons were holding King John hostage until he agreed to their terms, and those barons wished to make the matter look like a voluntary arrangement. But what the king grants, the king can take away, which John promptly did by repudiating the charter once he was released.

By the time of the American drive for independence, the original Magna Carta had little legal effect in England, with only a few provisions remaining in force after the subsequent issuance of differing versions and the enactment of various English statutes that overrode most of those provisions. However, Magna Carta retained a mythical hold on Americans, who argued that they were not rebelling against their constitutional government but preserving their ancient rights as Englishmen against usurpations by the king and Parliament. Americans believed the Whig perspective that Magna Carta protected the right of common Englishmen against arbitrary royal government and placed the king under the ancient common law. The jurist Sir Edward Coke had been the most influential originator of this idealized interpretation during his political clashes with the Stuart kings early in the 17th century. Not everyone agreed, most certainly not James I and Charles I. A bill introduced in Parliament in 1621 to confirm Magna Carta as law failed.

Appealing as Magna Carta was symbolically as a written constitution that represented a contract between king and people, when Americans actually read it, they could not avoid the fact that the language of the charter assumed that the rights involved originally belonged to the king. Moreover, the king had granted the enumerated rights only to a select few. This stood in clear contrast to the dominant theory at the time of the American revolution that every person is endowed by God with certain rights. Those were inherent in such persons by the grace of God, not by that of the king.

The theory of universal natural rights inherent in each person was a distinct derivative of the much older theory of human law and relations controlled by universal higher moral laws or by principles of natural justice. It was distinct because it focused on the sovereignty of each person, independent of all others and connected to the exercise of the person’s own rational self-interest. It placed the individual at the center of social community and required, at least as a general theory, the consent of each to form a political commonwealth. Duties undertaken to others arose out of the free exercise of one’s right to consent to do so.

The more traditional approach of writers on natural law and natural justice had assumed the operation of a universal order external and antecedent to human society. It functioned concretely, as manifested in the physical universe and human society, and morally, through human reason. Each person was a part of both aspects of that order. Moral and, ultimately, legal duties to others could arise only in humans as creatures who have the capacity to participate in the moral structure of that order. From these natural duties arose rights to make it possible to meet those obligations. In Nicomachean Ethics, Aristotle distinguished between natural and conventional justice: “Political Justice is of two kinds, one natural, the other conventional. A rule of justice is natural that has the same validity everywhere, and does not depend on our accepting it or not.”

In a similar manner, the Roman philosopher and political leader Cicero, expressing a Stoic interpretation, repeatedly explored the connection among law, justice, nature, God, and reason. Just a few select passages from his book Laws suffice as examples. “Law is the highest reason, implanted in Nature, which commands what ought to be done and forbids the opposite…. But in determining what Justice is, let us begin with that Supreme Law which had its origin ages before any written law existed or any State had been established.” Once it was established that there was a superintending structure of natural law commensurate in its essence with reason, Cicero explained how human beings can participate in that order, and can understand the duties created thereunder and exercise the correlative rights. “[T]hat animal which we call man, endowed with foresight and quick intelligence, complex, keen, possessing memory, full of reason and prudence, has been given a certain distinguished status by the supreme God who created him; for he is the only one among so many different kinds and varieties of living beings who has a share in reason and thought, while all the rest are deprived of it.” Such a momentous project is the work of an all-powerful and all-knowing superhuman mind. “[Natural] Law is not product of human thought, nor is it any enactment of peoples, but something eternal which rules the whole universe by its wisdom in command and prohibition. Thus they have been accustomed to say that Law is the primal and ultimate mind of God, whose reason directs all things ….” Finally, a human enactment, no matter the political system which created it, cannot truly be law if it conflicts with the higher natural law. “[N]either in a nation can a statute of any sort be called a law, even though the nation, in spite of its being a ruinous regulation, has accepted it. Therefore Law is the distinction between things just and unjust, made in agreement with that primal and most ancient of all things, Nature; and in conformity to Nature’s standard are framed those human laws which inflict punishment upon the wicked but defend and protect the good.”

Cicero has not been alone in distinguishing between a statute which is not truly law and one which is because of its conformance to justice represented by higher law. The distinction was clearly expressed by, among others, justices of the early Supreme Court. For example, in a colloquy between himself and Justice James Iredell, Justice Samuel Chase declared in 1798 in Calder v. Bull, “An ACT of the legislature (for I cannot call it a law) contrary to the great first principles of the social compact cannot be considered a rightful exercise of legislative authority.” The “first principles” to which Chase referred are those of natural law and natural rights, as shown by Iredell’s skeptical response: “It is true that some speculative jurists have held that a legislative act against natural justice must in itself be void, but I cannot think that under such a government any court of justice would possess a power to declare it so…. The ideas of natural justice are regulated by no fixed standard; the ablest and the purest men have differed upon the subject, and all that the court could properly say in such an event would be that the legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice.”

St. Paul acknowledged the universality of natural law and its connection to the God of all mankind. In his letter to the Romans, Paul explained that “When Gentiles who do not possess the law do instinctively what the law requires,” it proves that God’s universal law exists outside any particular received commands. Those Gentiles “show that what the law requires is written on their hearts, to which their own conscience also bears witness; and their conflicting thoughts will accuse or perhaps excuse them” on the day of judgment. In that manner, enlightened pagans such as Plato, Aristotle, and Cicero might have keen insight into the moral order created by God, and they would be judged the same as those who had received the declared law. They were accountable for their thoughts, words, and deeds under the natural moral law, although their ignorance of specific aspects of the declared law might not be held against them.

Then why was it necessary to have revealed law at all? Philosophers and theologians have long made clear that not all people possess equal capacity to understand what God has written on their hearts, but also that the reason of all humans is imperfect due to the human condition. Humans lack the omniscience of God and His perfect reason to comprehend the full extent of the natural law. Revelation is necessary both for those matters whose substance is beyond human understanding and, at least for some people, “about those religious and moral truths which of themselves are not beyond the grasp of human reason,” in the words of Thomas Aquinas.

Alexander Hamilton in essay No. 33 and James Madison in essay No. 44 of The Federalist made similar arguments about a rather different matter. In Article I, Section 8, the United States Constitution expressly grants Congress the power to legislate regarding certain substantive matters. The question presented was why the Constitution also gave Congress the power to make all laws “necessary and proper” to carry into effect its other powers, when Congress already had the implied power to make such laws as a means for effectuating the ends specified in the Constitution. As Madison pointed out,

“Had the constitution [sic] been silent on this head, there can be no doubt that all the particular powers requisite as means of executing the general powers, would have resulted to the government, by unavoidable implication. No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it, is included.”

Hamilton concluded that “it could only have been done for greater caution, and to guard against all caviling refinements in those who might hereafter feel a disposition to curtail and evade the legitimate authorities of the union.” In other words, the implied power to make such laws already existed under universally accepted and applicable principles of government. But the extent of implied powers is ill-defined and subject to considerable debate and uncertainty. The express enumeration, then, provides a more concrete statement less subject to manipulation and deception.

If the immutable laws of nature represent the work of the divine reason, good human laws are the result of human reason applied to concrete conditions and problems. But human laws are sometimes the product of passion, often temporary, rather than of reason, in denigration of the classic definition. Hamilton addressed this problem in essay No. 78 of The Federalist, where he characterized judicial review of legislation as itself an act of reason to control the ill effects of popular passions:

“This independence of the judges is equally requisite to guard the constitution and the rights of individuals from the effects of those ill humours which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information and more deliberate reflection, have a tendency, in the mean time, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.”

As Cicero taught earlier, the fact that these laws, enacted as the result of temporary public passions, may have been approved by the nation does not lessen their incompatibility with the Constitution and with reason.

Mob rule would be another, perhaps even more blatant, triumph of passion over reason than the arbitrary human law hastily produced by the legislature. That body had more of an opportunity to calm those passions or might at least blunt their force in the eventual statute. However, there is another side to be considered. What is mob rule? Does the uncoordinated broad refusal of the people to go along with an arbitrary statute qualify as such, in what has been dubbed “Irish democracy”? Is direct peaceful opposition by large numbers in the form of demonstrations and petitions? Is rioting and violent opposition? Is insurrection by destroying government property, tarring and feathering government officials, and shooting at soldiers? Or is even the last a legitimate form of opposition to allegedly arbitrary government, at least if those opponents eventually win and write the history books? After all, to the British in the 1760s and 1770s, Americans often engaged in mob rule by a violent minority faction, which then escalated to insurrection and, eventually, full rebellion in a civil war.

The Constitution is positive law, proposed by humans in Philadelphia and approved by assemblies of humans in the several states. The charter incorporates what the Supreme Court has accepted as universal principles of natural law, such as prohibitions of ex post facto laws or of  laws which interfere retroactively with the obligations and rights in contracts, take property without compensation or as mere redistribution for a private person’s benefit, deny basic protections of due process, burden one’s right of self-defense, or interfere with fundamental rights of conscience by abridging rights of free speech, assembly, press, and religion. If Thomas Paine is correct, and there is a natural right of self-government, the Constitution even protects that right, at least within broad bounds.

Still, even the Constitution is not at one with the immutable, constant laws of nature. What the human lawgiver gives, it can take away, just as King John did with Magna Carta. The Constitution can be amended, and nothing in its text prevents the nullification of the rights mentioned earlier. Nor is the discovery by the Supreme Court of unenumerated rights through flexible and creative interpretation of “liberty” under the due process clauses of the Constitution inherently immutable. Such discoveries can be reversed or neutralized by the Supreme Court itself, as happened recently with the retraction of the right of a woman to obtain an abortion, first discovered rather belatedly in 1973. Or a formal amendment can be adopted which overrides an earlier Supreme Court opinion, as has happened several times.

Nor does the Constitution address all principles of natural law and natural rights. It was not until adoption of the 13th Amendment in 1865 that the Constitution took a clear position against slavery, although Western philosophers of ethics and politics and theologists had wrestled with that issue for millennia and had found slavery to be contrary to nature and natural law at least under many circumstances. Worse, the Constitution itself may conflict with natural law and natural rights. After all, a mere five years earlier, on the eve of the Civil War, President Abraham Lincoln and other Northern politicians had advocated for another, far different 13th Amendment, one that would have expressly protected at the level of constitutional law that very same institution of slavery in the states where it then existed. Only the refusal of Southern radicals to accept the geographical limitation in that proposal and the force of the process already set in motion in the Southern states towards secession prevented its further consideration by Congress.

Another difficulty lies in this. To the extent that the Constitution’s text falls short of manifesting the immutable, constant laws of nature and the extent of natural rights, may the Supreme Court fill in those gaps? The Ninth Amendment does no more than state the obvious, that the enumeration of certain rights in the Constitution does not exhaust the scope of rights each person has. It provides no express license for the Supreme Court to substitute its judgment for that of the people or the people’s representatives. Moreover, as Justice Iredell objected in Calder, the commands of the natural law and natural justice are difficult to discern, especially in application to specific and varied circumstances, and have long been the object of philosophic speculation.

Of course, the people or their representatives should make law only in accordance with natural law. But the problem is precisely that they often are driven by self-interest and passion, not by the requisite reason. Nor are the people generally, or the legislators, inherently qualified as moral philosophers any more than the judges. This quandary requires inquiry into the role of private and public virtue in the promotion of proper self-government and the establishment of a political order and human law consistent with the natural law and the protection of each person’s natural rights.

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.

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Guest Essayist: Joerg Knipprath
Thomas Paine, oil painting by Laurent Dabos, 1791.

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

Thomas Paine became an immensely popular figure during the American War of Independence, primarily on the basis of his works Common Sense, a pamphlet initially published anonymously in 1776, and a series of pamphlets collectively referred to as The American Crisis, published from 1776 to 1783. They were ringing defenses of the American cause, well-written in uplifting and patriotic language easily accessible to ordinary readers.

Yet, only a handful of mourners attended that same Thomas Paine’s funeral three decades later, he having estranged many American leaders by his attacks on the character of George Washington in an open letter published in 1796. As well, his many occasions of writing negatively about organized religion, especially in the three parts of the pro-deism Age of Reason, had alienated much of the American public.

In between, Paine lived in England, where he soon became the target of official displeasure after publishing vigorously anti-monarchist and anti-aristocratic tracts in the two volumes of Rights of Man. While these works were widely read in England, his enthusiastic support of the French Revolution cost him popularity. Fearing prosecution, he fled to France.

Paine was initially very well received in the revolutionary French Republic. He was elected to the National Convention and appointed to its committee to draft a constitution. However, he soon made himself unpopular with the radical faction and eventually was imprisoned and slated for execution. He was saved from a date with the guillotine by the fall of the radical leader Maximilien Robespierre and subsequently was released from prison by the intervention of the new American ambassador, James Monroe.

He stayed a few more years and met Napoleon Bonaparte, who spoke admiringly about him, at least until Paine denounced the future emperor as a charlatan. Not long thereafter, Paine decamped for the United States at the invitation of one of his more steadfast friends, President Thomas Jefferson.

What raised Paine to such heights of fortune was his talent for “plain speaking.” That was also a cause for his lows, when his direct style rubbed influential persons the wrong way. His works during the Revolutionary Period were said to have made independence inevitable by bringing the common people to the cause, the people who might not have understood some of the more refined philosophical arguments made by elite American intellectuals citing elite European and ancient intellectuals. His most famous work, Common Sense, sold 500,000 copies by the end of the war in a country of fewer than 3 million free persons, including children. Jefferson, comparing him to Benjamin Franklin as an essayist, opined that, “No writer has exceeded Paine in ease and familiarity of style, in perspicuity of expression, happiness of elucidation, and in simple and unassuming language.”

The first installment of The American Crisis began with a stirring call to action for a demoralized American army: “These are the times that try men’s souls: The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country; but he that stands it now, deserves the love and thanks of man and woman. Tyranny, like Hell, is not easily conquered; yet we have this consolation with us, that the harder the conflict, the more glorious the triumph.” Four days after its publication in a Philadelphia newspaper, General George Washington had the pamphlet read to his soldiers recovering near the Delaware River after a long retreat from New York. The following night, Christmas Eve, the army crossed that river during a winter storm and, on Christmas Day, won a resounding victory at Trenton, New Jersey.

Paine’s value as a propagandist was not just in the cause of revolution and independence. He was a committed republican, to the point that it alienated some of his erstwhile admirers. The purpose of the quoted document, Dissertation on First Principles of Government, was to reiterate  and develop the points about hereditary versus representative government made in Rights of Man. Having concluded that hereditary government was a form of tyranny, and even treason against successive generations, Paine rooted representative government in the inherent equality of human beings. The most significant right which flows from that equality is the right of property in oneself. If government is to be formed, as it must for the better protection of people in their persons and estates, each adult has the right to participate in that process on the principle of equality. If much of this sounds like the philosophy of John Locke, that should be no surprise, in light of the popularity of Lockean ideas at that time. But Paine made those ideas more accessible to ordinary people. Unlike many American state constitutions at the time, Paine rejected property qualification for voting. He did not address female suffrage, although his frequent reference to “man,” if used generically, did not foreclose that possibility.

In the minds of many 18th-century writers on politics, the problem of a general franchise and a purely elective government was the danger it posed of degenerating into a democracy. Paine did not reject such a democracy outright, although he considered it impractical for large political entities such as France and the United States. Those parts of the Dissertation could have fit comfortably in The Federalist. Others, such as the paragraphs addressing the nature of executive power and its formulation in the Constitution of 1787, sat less well.

Paine’s discussion of the importance of voting was consistent with classical American republicanism, which also considered the “republican principle” of the vote as the mainstay of liberty. As a matter of practical application, Paine emphasized the use of majority rule, whether exercised through direct democracy in a town or a representative body. As he wrote in the Dissertation, “In all matters of opinion, the social compact, or the principle by which society is held together, requires that the majority of opinions becomes the rule for the whole and that the minority yields practical obedience thereto.”

Paine was not nearly as agitated about the baleful influence of factions as James Madison was in The Federalist. That noted, Paine’s solution to the potential problem of majority dominance over a political minority was similar to Madison’s explanation in No. 10 of The Federalist about the relative lack of danger from an entrenched majority faction in Congress compared to town or state governments. Paine observed that political majorities change depending on the issues involved, so there is constant rearranging of the composition of whatever constitutes a majority. “He may happen to be in a majority upon some questions, and in a minority upon others, and by the same rule that he expects obedience in the one case, he must yield it in the other.” Like Madison at that time, Paine could not know about the subsequent emergence of organized political parties and party discipline over elected officials.

There is, however, a danger from straight majority rule, whether that rule is exercised through direct voting by whatever class of persons is qualified to vote or in a legislature composed of some class of persons deemed qualified to stand for public office and represent the people. No matter how many laudatory words 18th-century American republicans might put forth about voting and representation, consent of the governed, and majority rule, the temptation to vote for self-interest rather than the res publica, the general wellbeing of society, and to call forth the “spirit of party,” becomes irresistible. As has been noted by cynics, without additional protections “Democracy is two wolves and a lamb deciding what is for dinner.” Or, as the 19th-century New York lawyer and judge Gideon Tucker quipped, “No man’s life, liberty, or property are safe while the legislature is in session.” Jefferson commenting in Notes on the State of Virginia on the structure of the Virginia Constitution of 1776, insisted “An elective despotism was not the government we fought for.” One of the great fallacies of modern political discourse is that we just need to get more people to vote to bring about a just society and to protect personal liberty.

Paine recognized the danger of party spirit and the need for a constitution to restrain the excesses of government, including of government by popular mandate. He decried the brutality of the French Revolution and noted, “[I]t is the nature and intention of a constitution to prevent governing by party, by establishing a common principle that shall limit and control the power and impulse of party, and that says to all parties, THUS FAR SHALT THOU GO AND NO FARTHER.” [All emphases in the original.] In addressing “party,” Paine was referring to self-interest, in this context the interest to gain and exercise unrestricted power. He opined that, “[h]ad a constitution been established [in 1793] … the violences that have since desolated France, and injured the character of the revolution, would … have been prevented.”

Instead, “a revolutionary government, a thing without either principle or authority, was substituted in its place; virtue and crime depended upon accident; and that which was patriotism one day became treason the next.” Lacking a constitution that protects inherent rights causes an “avidity to punish, [which] is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty, he establishes a precedent that will reach to himself.”

Paine’s insistence on a constitution as a check on government focused on the need for the type of protections found in the American system mainly in the Bill of Rights. A declaration of rights had to be more than a collection of meaningless slogans. It had to limit governmental action directly and expressly. Moreover, such limits were not a matter of political grace. “An enquiry into the origin of rights will demonstrate to us the rights are not gifts from one man to another, not from one class of men to another; for who is he who could be the first giver? Or by what principle, or on what authority, could he possess the right of giving? A declaration of rights is not a creation of them, nor a donation of them. It is a manifest of the principle by which they exist, followed by a detail of what the rights are; for every civil right has a natural right for its foundation, and it includes the principle of a reciprocal guarantee of those rights from man to man.” The Constitution likewise enumerates certain rights but expressly does not purport to provide an exhaustive list. As the Ninth Amendment declares, there are other rights retained by the people. It is disheartening to hear so often from law students that the Constitution “grants us rights,” an understanding of the nature of rights at odds with that of the people who drafted and adopted the Declaration of Independence, the Constitution, and the Bill of Rights.

In the American system, the Constitution is not merely a collection of customs and traditions of political practice. It is a legal charter and has the essence of law enforceable, within limits, in courts of law. It is higher law in the sense that, in case of conflict between it and ordinary federal or state statutes, the Constitution prevails. But it addresses expressly only limited topics. Almost since the Constitution’s adoption, there has been debate about the authority of courts to look to other forms of higher law reflective of the principle of inherent rights to limit legislative authority, such as theories of natural law or natural rights. That debate continues, often in trying to define what the ambiguous term “liberty” means in the Constitution, for example, in relation to abortion, marriage, or gun ownership.

Another unresolved question is whether such higher law is superior to the Constitution itself. After all, the Constitution can be amended with the requisite supermajority votes prescribed in Article V of that charter. Suppose that a constitutional amendment were adopted that protected infanticide or that repealed the prohibition of slavery. Would infanticide or slavery, at that point constitutionally permissible, yet be consistent with natural law or natural rights? If the answer is “no,” it shows a recognition that certain rights inhere in each person as a matter of essence, not as a grant from a legislative majority or a constitutional supermajority. The religious skeptic in Paine might not allow him to go as clearly to the source of those rights as did the language of the Declaration of Independence that we are endowed with them by our Creator, but Paine would readily acknowledge the existence of such higher law.

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.

Guest Essayist: Joerg Knipprath

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

The Declaration of Independence famously announced that all human beings not only are created equal, but are endowed by their Creator with certain “unalienable” rights. Among those rights are life, liberty, and the pursuit of happiness. These were, as the Declaration also held, self-evident Truths, even to someone like Thomas Jefferson, the document’s author, often described as irreligious, a Deist, or a lukewarm Christian. The phrasing was not unique to the Declaration, but differed slightly from the version by John Locke from whose writing this selection of “natural rights” was drawn. Locke had assigned “property” as the third category of natural rights, the most common formulation, also used, for example, in the Bill of Rights. Moreover, Locke had urged that property was the foundation of liberty and happiness, because of the property each had in his own person, and because government’s abusive power over property, such as through arbitrary taxation, threatened one’s personal liberty and happiness.

Humans derive their equality from being God’s creatures, king and commoner, master and slave, prince and pauper alike. This is essential Christian teaching. The Creator is not an impersonal force or one who has set in motion the laws of nature but otherwise sits back and watches that creation passively as if enjoying a model railroad layout. Rather, he has actively endowed each person with certain unalienable rights. Those rights exist for the purpose of each person’s flourishing as a human being. It is for that end also that governments are established, and on consideration of which the powers of rulers are inherently limited. There is a purpose for government and, by implication, for human law, all directed by the Creator.

There is, then, a normative test for all acts of government. Such acts must be directed only to this purpose and must not violate one’s sacred rights which are beyond the authority of others to transgress. Governmental legitimacy depends on conforming to those Truths. This constitutes the very basis of the social compact, the construct by which, through the consent of the governed, political society was established in the minds of Americans in the late 18th century.

Supreme Court Justice Samuel Chase expressed these principles in 1798 in Calder v. Bull, about the constitutionality of a Connecticut law.

There are certain vital principles in our free Republican governments, which will determine and over-rule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty, or private property, for the protection whereof the government was established. An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority.”

Chase’s distinction between an act of government and a law defines an inherent quality in the latter. It is not enough that a particular statute was adopted by a properly constituted governmental entity in accordance with prescribed procedure. The statute’s substance must meet the standard of a “good” law. Government can bind people to obedience to its directives in two ways. One is through the law’s moral legitimacy, in that it promotes human flourishing and does not conflict with those natural rights. The other is through sheer power of enforcement. The former is stable. The latter is the path to suffering, discontent, and revolution, as set out in the Declaration’s list of grievances against King George.

The natural rights framework of external ethical limits on law builds on a long Western tradition of a universal higher moral law that obligates human lawmakers. Norms for judging a human law must exist outside the structure of that human law itself. The older tradition, going back to ancient Greek and Roman philosophers, conceptualized an order based on law, within which physical and metaphysical forces operated predictably and constantly. Laws imply a lawmaker. As a result, expositors of this approach always assumed a connection between natural law and some divine or morally perfect eternal existence.

There is, however, a difference, in that natural rights metaphysics focuses not on a classic universal order of creation of which humans and the moral laws to which they respond through their reason are a part. Rather, natural rights are inherent in the sovereignty of personhood of each adult derived from existence in a hypothesized state of nature. Some of those natural rights are surrendered as individuals choose to leave that state of nature and join a social compact to form a political society. Others, among them the rights listed in the Declaration, are retained even upon entry into political society.

In the version of John Locke and subsequent expositors of Lockean political philosophy, the decision to enter into such a social compact is made out of rational self-interest to gain better protection of one’s property in person and estate. The decision is made by free will consenting to be governed. Although Plato had written much earlier about government formed by such consent, the concept was insignificant in his work on the best government. It was the influence of the Renaissance and the secular ramifications of the Protestant Reformation that shifted the focus from humans as part of a universal order governed by divine reason and intelligible through our reason, to humans at the center of everything and controlling their destiny through their wills. The philosophic shift to a focus on rational self-interest as the ethical foundation of the state matured in the Age of Reason and the Enlightenment of the 17th and 18th centuries, respectively.

Yet even as the metaphysical cosmology of a divinely-directed order was challenged, there remained a significant problem. Where do these rights originate? Why do humans have rights at all, while horses, rhubarb, and iron ore did not? Why are some rights “unalienable”? Which rights? Some social contract theorists veered close to severing the entire matter from its ancient connection to divine morality. Thomas Hobbes’s version of the social contract laid out in Leviathan, a work best considered as an apologia of rational totalitarianism and glorification of the absolute State, is a prime example. The German philosopher Samuel Pufendorf, writing in the late 17th century, studied Hobbes. He was less anticlerical and less militant than Hobbes, but still deified the State by establishing it as a “moral person” charged with the ordering of rights and duties. His work became a source of legitimacy for European “enlightened despots” in the 18th century.

But old concepts die hard, especially if they reflect crucial foundational considerations. Locke quite overtly connected his theory of rights to God. Near the beginning of The Second Treatise of Government, Locke defined man’s liberty in his state of nature as governed by a law of nature that none may harm another “in his life, health, liberty, or possessions.” Why not? Because “men being the workmanship of one omnipotent and infinitely wise Maker—all the servants of one sovereign master, sent into the world by his order, and about his business—they are his property whose workmanship they are, made to last during his, not another’s pleasure;…” Because of that essential equality, “there cannot be supposed any such subordination that may authorize us to destroy one another.” Neither may anyone, “unless it be to do justice to an offender, take away or impair the life, or what tends to the preservation of the life, the liberty, health, limb or goods of another.”

The connection to God as Creator is as fundamental to the existence of inherent, natural rights in humans and the correlative duties owed to others as it is to the existence of a universal moral order within which humans live and which is the source of their duties and rights. Moreover, recognizing this relationship and the existence and unalienability of these basic rights is an exercise of reason itself. Hence, these are self-evident Truths to any rational being and need no further proof for Locke, Jefferson, or the Americans of the Founding Era more generally.

There are problems with this reasoning. It depends on assumptions that some may not share, such as a belief in the existence of God. Some may scoff at the idea of a pre-political “state of nature” as either an anthropological fact or even an appropriate political construct. Less intellectually rigorous individuals may get lost by its hyper-rationalism.

Certainly, there has been no shortage of critics. In Candide, the French philosopher and satiric writer Voltaire mocked the Enlightenment’s faith in reason and the propensity of his academic contemporaries to construct idealized systems for the progress of humanity based on those writers’ conception of self-evident truths in turn based on reason. The Scottish parliamentarian Edmund Burke, representing the views of many conservatives, reacted against the version of natural rights in the French Declaration of Rights as revolutionary and as delusional about the “monstrous fiction” of equality when viewed thorough the experience of “men destined to travel in the obscure walk of laborious life.”

Liberal utilitarians reacted against the lack of concreteness of the doctrine. The English philosopher Jeremy Bentham derided it as “nonsense on stilts.” He described such rights as ambiguous and not empirically verifiable. He asserted that rights can only come from human law, not from “imaginary” natural law. Thus, to call “liberty” and such concepts natural “rights” was a perversion of language to Bentham. The idea that humans might possess rights beyond the control of human law was anarchic and directed “to excite and keep up a spirit of resistance to all laws—-a spirit of insurrection against all governments.”

Romanticism in the 19th century and its resultant European nationalism, especially in Germany, turned away from the Enlightenment’s optimistic universalism and refocused rights and law through a historical lens, the peculiar history and ancient customs of each national community. The Anglo-American movement of legal positivism taught that rights were the result of human law, and that the only criterion for law was that it was the command of a political sovereign. Thomas Hobbes would have approved. The Progressives of the 20th century reduced the notion of law to utilitarian legislation or administrative regulation, and characterized rights as whatever such legislation or regulation permitted. Formerly, such grants would have been described as “privileges.”

The current approach continues to retreat from the Founders’ self-evident Truths about the relationship among humans, their Creator, and their unalienable rights. All over the Western World, there is a trend away from the traditionally dominant view of God directly involved in human flourishing. The deification of the State continues.  With a few unorthodox exceptions, rights today are not viewed as something with which each individual is inherently endowed. Rather, rights increasingly are claimed to belong to certain groups, with a manichaean division of humanity into oppressors and victims, which reflects the Marxist origins of the approach. Unlike the economic classification of traditional Marxism, today’s groups are defined by characteristics of physical or psychological identity.

Rights today are those activities which the community or some elected or merely appointed official is willing to let people undertake. Rights fundamental to human vitality as social creatures, such as the right to interpersonal association and the liberty of moving about, are curtailed or prohibited by stoking fear and panic over contrived emergencies earlier generations would have scoffed at. At best, today we exercise rights at the sufferance of a majority of the community. We have none inherently, because everything is based on human will and consent. Today’s human rights declarations are simply lists promulgated by functionaries of, for example, the United Nations. The drafters of its Declaration of Human Rights consciously refused to include Jeffersonian language about the nature and source of rights in the document. One might be excused for being unimpressed by such lists overseen by a council composed of China, Cuba, Eritrea, and other habitual violators of essential human rights. What one human lawmaker can legitimately grant, a subsequent one can legitimately rescind. Before their War of Independence, Americans pointed to the Magna Carta of 1215 as a source of their ancient rights which the British government was said to be violating. But that tactic fell out of favor when it was discovered that the document repeatedly said that the king was “granting” those rights, not that people possessed them inherently.

Finally, there are today no Truths with a capital “T,” self-evident or otherwise, except, perhaps, an unassailable Truth that there are no Truths. In the past, skeptics claimed that our minds and reason are not sufficiently incisive to discern such Truths, and that, therefore, the best we can humbly do is to make utilitarian decisions on what is perceptible to us and appears to be the best result for our society at the time. These are truths with a small “t,” which can claim no inherent superiority over another society’s truths.

Today, following radical “critical studies” theory, “truth” is deemed a narrative imposed by oppressors to perpetuate power relations. In short, there simply is no Truth. Everyone can create his or her own truth. At the same time, in an ironic twist, no one (at least not those denounced as oppressors) may disagree or may challenge another’s truth, no matter how absurd such “truth” might appear to an observer. Not only may one not say that the emperor has no clothes. One must profess that the emperor is truly wearing clothes if he identifies his naked body as clothed. Who can really know? There is no “right” answer, because there is no objective reality. Plato weeps.

The result of such extreme subjectivism is the chaos it creates in society. To achieve a fulfilled life that balances both parts of human nature, the unique aspects which shape each individual and the character of humans as social creatures, people seek order. That is why revolutions always end, and Maoist plans for “permanent revolution” are merely dreams, albeit nightmarish ones. But when there is no inherent right or wrong, just competing random perceptions with no hope of shared objective reality, order comes about through the unrestrained exercise of power.

However, no government claims to act simply on the basis of raw power. The reason is that humans also have an innate attraction to ethics, although the extent of such innate moral sentiments has long been a topic of debate. Therefore, an ethical basis for government is quickly put forth, a justification for the duty to obey society’s rules. In the past, the ruler’s legitimacy might simply have been based on a claim that he is the embodiment of a divine entity, as was the case in many non-Western cultures. Today, “oppression theory” seeks to vest political legitimacy in the actions of those or which benefit those who are anointed the oppressed and to divest it from those stigmatized as the oppressors.

The contribution of Western political philosophy has been to desanctify the ruler, first by bringing him down to the rest of the community within a broader order governed by a universal moral law created and administered by God. The price for his rule was that he must not transgress against that moral law, which sought to protect the community from arbitrary exercises of power contrary to human flourishing. Though the conceptual structure later was secularized and redefined on the basis of rule by popular consent, the ruler still must not transgress against certain individual rights essential to humans and their flourishing. Those rights, too, are universal, and arise out of the universal moral law created by God.

The very longevity of such basic assumptions about the relationship among individuals, their rights, the rulers, the moral law, and God attests to their conformity with human nature and their connection to human flourishing. That longevity is evidence of their Truth. Indeed, it may be said, perhaps with some embellishment, that such Truths are self-evident. The words of the Declaration of Independence are expressions of optimism and hope. They will prove to be more significant and will outlast the current depressing fads of sanctifying or demonizing persons or actions based on arbitrary group identity, decoupling law and political action from ethical standards founded in a higher order, and rejecting the existence of an objective reality.

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.

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Guest Essayist: Joerg Knipprath
John Adams, author of “A Defence of the Constitutions of Government of the United States of America” and principal drafter, Massachusetts Constitution of 1780.

Essay Read By Constituting America Founder, Actress Janine Turner

 

 

The direct and essential connection among education, civic virtue, and good republican government was a self-evident truth for many late-18th-century American political and religious leaders. There was far less agreement, however, as to what exactly constituted virtue, to what extent “the people” were capable of exercising civic virtue, and if one could count on virtue to restrain political leaders, either because the leaders themselves would possess a sufficient measure or because the people would use theirs to keep the leaders in check. During the debates in 1787 and 1788 over the adoption of the new federal constitution, civic, or public, virtue was a frequent topic of discussion. To opponents of the proposed government, it was axiomatic that, however virtuous the people might be, they would not be able to control corrupt factional leaders in a far-away central government. Supporters, in turn, scaled heights of flattering rhetoric to extol the strength of republican virtue among the American people.

Virtue might be the coin of the realm for good government in the minds of American republicans of the time, but there was no consensus about its proper alloy. To New Englanders, such as Adams, their Puritan heritage saw virtue in private frugality and sobriety, and public virtue in service and sacrifice for the common good. Moreover, public virtue necessarily arose from private virtue. “Public virtue cannot exist in a nation without private, and public virtue is the only foundation of republics,” John Adams wrote to the historian Mercy Otis Warren in April, 1776. Moreover, republican government was essential to “true Liberty.”

However, man, being fallen, lacked virtue by nature. Virtue had to be taught, but that was a difficult project. Education, though necessary, was not sufficient. Coercion must always be kept near at hand. As John Adams wrote to Thomas Jefferson in October, 1787, “I have long been settled in my own opinion that neither Philosophy, nor Religion, nor Morality, nor Wisdom, nor Interest, will ever govern nations or Parties, against their vanity, their Pride, their Resentment, or Revenge, or their Avarice, or Ambition. Nothing but Force and Power and Strength can restrain them.”

It should be noted that Adams, like many others of the founding generation of American republicans, distrusted pure democracy. In a letter in April, 1814, to the Southern agrarian philosopher John Taylor of Caroline, he wrote, echoing classical political thought,

“Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There never was a democracy yet that did not commit suicide. It is in vain to say that democracy is less vain, less proud, less selfish, less ambitious, or less avaricious than aristocracy or monarchy. It is not true, in fact, and nowhere appears in history. Those passions are the same in all men, under all forms of simple government, and when unchecked, produce the same effects of fraud, violence, and cruelty.”

There were limits to the degree to which all people could be trained to civic virtue, limits which inhered in man’s corruption through the passions and in the frailty of the human mind to control them.

For Southern agrarian republicans, private virtue, even if successfully inculcated in the people, could not guarantee civic virtue in the halls of government. Adams’s assertion, “Public virtue cannot exist in a nation without private, and public virtue is the only foundation of republics,” might well be true as far as it went. However, as John Taylor of Caroline wrote, “By expecting publick good from private virtue, we expose ourselves to publick evils from private vices.” The New England solution of using the strong hand of an intrusive government to control private vices was unpalatable to the Southern agrarian class. Instead, they agreed with James Madison in The Federalist No. 51, that there was a “need for auxiliary precautions.”

Those auxiliary precautions included a structure of divided powers where “ambition must be made to counteract ambition.” Good republican government could be fostered by relying not on the public virtue of either political leaders or a civically militant people, but on embracing the reality of conniving and power-hungry politicians whose mutual jealousies would check each other. In similar manner, political factions, that bane of good republican government, being driven by self-interest, would jockey for influence in constantly changing coalitions. Among factions, none would become entrenched, as there were no permanent allies or enemies, only permanent interests, to borrow from Lord Palmerston’s policy description of 19th-century British international relations.

National republicans, such as Alexander Hamilton and George Washington, rejected a fundamental premise that underlay other conceptions of civic virtue. Rather than treat virtue and passions or self-interest as antithetical, and fusing public virtue to private virtue, national republicans simply redefined that relationship. Some private vices were rooted in self-interest, such as the desire for fame, honor, or even wealth, but they could be harnessed to produce great public benefit and, therefore, should be considered civic virtues. Government could create incentives for persons to engage in such “good” passions to produce great public benefit.

Nor were all members of the American elite without doubt about the scope of virtue among the American people or about their capacity to attain a sufficient measure of it. John Adams, as prolific a writer on the connection between virtue and good republican government as lived at the time, warned in a letter in June, 1776,

“The only foundation of a free Constitution, is pure Virtue, and if this cannot be inspired into our People, in a greater Measure, than they have it now, They may change their Rulers, and the forms of Government, but they will not obtain a lasting Liberty.—They will only exchange Tyrants and Tyrannies.”

Whatever their differences about the meaning of virtue and about the capacity of private virtue to produce sufficient public virtue, the expositors of virtue politics generally agreed with Aristotle that education and training in private virtue were necessary to its practice. For most of them, only the broad distribution of land ownership rivaled virtue in promoting and protecting liberty and republican government. Thus, education to virtue was an essential task, even if the outcome was uncertain and incomplete. Education had to be grounded in religion and morality, as those were the sources of virtue. The Northwest Ordinance of 1787, perhaps the greatest peacetime achievement of the Confederation Congress, codified this premise:

“Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools, and the means of education shall forever be encouraged.”

President George Washington in his lengthy Farewell Address, published in September, 1796, gave a succinct rhetorical overview of the connection among religion, morality, virtue, and good republican government:

Of all the dispositions and habits which lead to political prosperity, religion and morality     are indispensable supports. In vain would that man claim the tribute of patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of men and citizens….And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.

It is substantially true that virtue or morality is a necessary spring of popular government. The rule, indeed, extends with more or less force to every species of free government….

Promote then, as an object of primary importance, institutions for the general diffusion of knowledge.”

There was cause for optimism, as the American population had a high rate of literacy compared to that even of European countries. “Ours are the only farmers who can read Homer,” a self-satisfied Thomas Jefferson boasted in a letter to St. John de Crèvecoeur in January, 1787. Jefferson is well-known for his efforts in the founding of the University of Virginia in 1819, for the design of which he also developed architectural plans. His educational activism was not limited to creating a university. As early as 1785, in his Notes on the State of Virginia, Jefferson laid out a plan to educate younger children of both sexes for three years at public expense, with higher grades open to the boys of parents who could afford the tuition and to a limited number of other boys selected on the basis of their intellectual capabilities. In Jefferson’s somewhat indelicate language to modern ears, “By this means twenty of the best geniuses will be raked from the rubbish annually, and be instructed, at the public expence, so far as the grammar schools go.” His ambitious plan was not realized in any form in Virginia until after the Civil War.

Along with the general goals of imparting knowledge for its own sake and for practical pursuits, Jefferson saw education as a necessary process for republican government. Perhaps his best-known aphorism regarding the importance of education appeared in a letter he wrote to Colonel Charles Yancey in January, 1816, “If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be.” The antidote to such a doomed expectation was education. “The qualifications for self government in society are not innate. They are the result of habit and long training,” Jefferson wrote to Edward Everett in March, 1824.

Other famous Americans echoed these sentiments. As supposedly worldly and skeptical as he was, Benjamin Franklin nevertheless advised, “A Bible and a newspaper in every house, a good school in every district—all studied and appreciated as they merit—are the principal support of virtue, morality, and civil liberty.” James Madison declared that the Constitution required “sufficient virtue among men for self-government.” Otherwise, “nothing less than the chains of despotism can restrain them from destroying and devouring one another.” The old Son of Liberty, Samuel Adams, opined in a letter to James Warren in 1779, “If Virtue & Knowledge are diffused among the People, they will never be enslav’d. This will be their great Security.”

None of the founding generation appear as convinced of the importance of education and religion to virtue and of virtue to liberty preserved through republican government as Samuel’s cousin John Adams. Despite his occasional doubts and pessimism, Adams was a staunch virtue republican. His writings are filled with quotable passages about the subject. A few will give the essence of his thoughts. Perhaps his best known, expressed in a letter in October, 1798, to officers in the Massachusetts militia, is “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” This sentiment, embraced the then-common belief that the American experiment in self-government, more than aristocratic or monarchic systems, relied on virtue widely diffused among the general population, or at least among those who would have the privilege to vote or to hold public office.

In the same letter in 1776 in which Adams expressed concern about the state of virtue among his fellow Americans, he also wrote,

“Statesmen my dear Sir, may plan and speculate for Liberty, but it is religion and morality alone which can establish the principles upon which freedom can securely stand. The only foundation of a free constitution is pure virtue.”

To complete the causal chain, one may point to his 1765 Dissertation on the Canon and Feudal Law, where he asserted, “Liberty cannot be preserved without general knowledge among the people.”

These quotations are not merely a string of disjointed musings. The writers put practical efforts behind their firm and constant beliefs, beliefs shared by Americans generally. Jefferson’s contributions to education have already been noted. Adams was the principal drafter of the historically important Massachusetts Constitution of 1780. That charter declared that “the happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion, and morality ….” Article V formally encouraged the development of publicly-funded primary and grammar (secondary) schools. To justify that effort, the section began, “WISDOM and knowledge, as well as virtue, diffused generally among the body of the people, [are] necessary for the preservation of their rights and liberties ….”

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.

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Guest Essayist: Joerg Knipprath
Independence Hall, Philadelphia, Pennsylvania

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

In The Federalist No. 6, Alexander Hamilton sought to refute the claim that commercial republics, such as the thirteen original united states, do not go to war with each other, and that, therefore, there was no threat of eventual disunion to be feared from the looser structure of the Articles of Confederation. He cited numerous historical examples, from ancient Greece to more modern times, to challenge that comforting assertion. Hamilton urged, “Let experience, the least fallible guide of human opinions, be appealed to for an answer to these inquiries.” His approach was characteristic of many discourses and arguments in The Federalist. James Madison frequently referred to the history of ancient Greece, while Hamilton repeatedly looked to the fate of the Roman Republic and to the history of English constitutional practice. Other antagonists engaged in similar mode of argumentation in the debate over the fate of the proposed Constitution of 1787.

Indeed, that tactic was not limited to the debates over the Constitution. For example, John Adams extensively discussed the history of Italian republics in his multi-volume work on contemporary state constitutions, A Defence of the Constitutions of Government of the United States of America, written from 1786 to 1788. After all, history is recorded human experience. The lessons that history might teach are drawn from the often-painful experiences and frequently tragic responses of those who went before us. The need to examine those experiences and debate their lessons was particularly acute when the undertaking was a new political order, Novus ordo seclorum, as the new motto placed on the Great Seal of the United States by the Confederation Congress promised. As Adams wrote to an acquaintance in connection with the publication of Defences, “They [the Italian republics] are the best Models for Americans to Study, in order to show them the horrid precipice that lies before them in order to enable and Stimulate them to avoid it.”

While history is the record of experience which subsequent generations can use as a primer in guiding their affairs, tradition (or custom) is the collective manifestation of that experience. It is “how things are done here.” Tradition sometimes is rejected because it is outdated for modern conditions, or at least appears to be so. But before rejecting tradition, it is wise to remember the precautionary principle captured in G. K. Chesterton’s Fence, an admonition best summarized as, “Do not remove a fence until you know why it was put up in the first place.” Tradition allows us to live in a social community without the chaos and inefficiency of having to learn anew each day how to organize complex human relationships.

The use of tradition to guard against rash, irrational, or oppressive political action has a long heritage. Reliance in ancient Roman republican constitutional practice on the mos maiorum, the tradition of the forefathers, sought to restrain arbitrary actions by ambitious politicians who might threaten the stability of the republic and the well-being of its citizens. Violations of tradition might have disastrous consequences. In Sophocles’s Oedipus Cycle, the Theban princess Antigone attempted to bury her dead traitorous brother in accordance with the ancient tradition rooted in divine commands. In doing so, she defied King Kreon’s decree to let the body be torn apart by animals. The deadly consequences of that decree for Antigone and for Kreon and his family is the stern lesson taught by the dramatist.

Another literary example is in Homer’s Iliad. The downfall of Troy results from the violation of the ancient Greek tradition of hospitality (xenia) by the Trojan prince Paris in running off with Helen, the wife of his host, the Spartan king Menelaus.

A more recent case in point is the Great Proletarian Cultural Revolution instigated in the 1960s in Red China by Chairman Mao. He urged radical Red Guards to destroy the “Four Olds,” old ideas, culture, customs, and habits. The disastrous result for the Chinese people was an exemplification of the chaos, misery, and suffering when the bonds of tradition are sundered, and societal fences are torn down irrationally.

American writers of the Founding appealed relentlessly to tradition to justify their actions. Their claims that the British government was violating their ancient rights as Englishmen by enacting statutes, such as the Stamp Act, might have been dubious politically and self-interested economically. Their references to Magna Charta might have been strained as a matter of history. Still, those arguments reflected an attitude Americans maintained throughout the period that theirs was a “conservative” reaction against dangerous constitutional usurpations that went against the very reason for government, namely, to protect human flourishing.

In the same manner, during the debates on the Constitution of 1787, the new charter’s supporters repeatedly rejected the argument that it was a radical anti-republican proposal. Instead, the writers of The Federalist Papers, particularly James Madison, claimed that the new document was built on the Articles of Confederation, with some modifications needed to correct the earlier charter’s most glaring deficiencies. Madison’s claim might have been in tension with the approach adopted early by the Philadelphia Convention of writing a new document rather than proposing amendments to the Articles. It might contradict some of his own positions in that collection of essays. But it was an argument frequently repeated in the state conventions. Indeed, the preamble to the Constitution itself declares that the object was to form a “more perfect Union,” not to create one.

The accumulated wisdom of those who have gone before us, which is reflected in living traditions, plays a particularly prominent role in law. “Law” is associated with constancy, predictability, and knowability. We speak of “laws” of physics, which means that the associated phenomena manifest themselves universally and regularly, that we can predict specific results from their applications, and that we can understand them through observation and reason, often expressed through the language of mathematics. Universal “law” in the context of human action is more speculative, but not entirely so. Discovering such law is predicated on observation and reasoned interpretation primarily of the experiences of people within one’s own culture at different times, but also of those of people in other cultures. Such universal prescriptions of “right” conduct, whether called natural justice, natural law, divine law, or something else, animate not just particular political decrees and legislation but also customs which direct how one should comport oneself more generally.

“Natural law” in that sense is a construct primarily of metaphysics, but also has clear connections to religion. It is an application of tradition to matters of government and politics, but it also has an inherent moral content, rooted in an external source. Consider, for example, the words of Saint Paul in his letter to the Romans that the Gentiles, who do not have the Mosaic law, nevertheless can in their nature act in accordance with the law because it has been placed on each person’s heart by God and is exercised through conscience.

Although natural law has an inherent moral content that exists independently of human practice, that content is best gleaned through investigation of how “things are done” over time and consistently, in other words, experience reflected in tradition. As Aristotle declared in Politics, “observation tells us that every state is an association, and that every association is formed with a view to some good purpose.” The manner in which something operates successfully over time is evidence that it acts in accordance with its true nature or essence.

In jurisprudence and juristic practice, the force of tradition is expressed in one form through the doctrine of stare decisis (“to stand by things decided”), the presumptive adherence to precedent in judicial decisions that promotes the stability and predictability which are the attributes of law. For example, a determination by the Supreme Court of what a provision of the Constitution means is binding on the lower courts. But even in matters heard by subsequent panels of the Supreme Court, the earlier Court’s holding is unlikely to be disturbed. Although this is not an invariable rule, the longer and more frequently that earlier precedent has been followed, the less likely the Court is to disregard it in a similar subsequent case. Many are the paeans that various justices have penned to the doctrine of stare decisis, although the cynic might say that the doctrine lasts only as long as it fits the author’s conception of the “right” result in a particular case. Adherence to precedent allows the courts to guard against the “dangerous innovations in the government,” the function to which Alexander Hamilton pointed in The Federalist No. 78 as the core purpose of judicial review of the constitutionality of legislation.

Because the object of the ethical state is to provide the conditions for human flourishing, those political arrangements which are most successful at that endeavor are the best. Human law is useful to provide the order needed for individual flourishing within a community. But not just any law, only law directed towards that end. The philosophic speculations of Aristotle about the limits imposed by natural justice on the human lawgiver, and the intellectually rich and politically significant investigations of “natural law” by philosophers from the classical Cicero to the medieval scholastic Thomas Aquinas, to the more modern Francisco Suarez and Hugo Grotius address ways to establish an ethical basis for ordinary human law and a proper balance between liberty and order, individual and community.

“Order” can mean many things. Fundamentally, the word conveys stability, rules, and limits. Tradition, law, and order are essentially bound. The concept of natural law is founded on the idea of an orderly universe governed by stable laws of physics and, regarding human action, universal rules of morality. The preeminent expositors of natural moral law, the European scholastics of the Middle Age, lived and wrote in a highly ordered society, where everyone had a designated place in that feudal order. Moreover, it was understood that human society itself existed in a universal order governed by God.

The advent of modernity rejected the strict structural approach of a universal order of which each person was a part. Instead, the focus became on voluntary association and consent as the basis of society, and on individual natural rights, rather than duties and rights derived from one’s place in the “natural” order of things and persons. The problem with a focus on individual will and consent as the basis for individual action is that it invites atomization, subjectivism, moral relativism, and nihilism, concerns vividly raised many centuries ago by Plato in his discussion of the “democratic man” in The Republic. Unbridled liberty is chaotic and threatens to veer into license, as there exist no external standards that can claim inherent legitimacy based on higher moral authority or the moral force conveyed by tradition. Each person becomes a moral standard only onto himself or herself.

Yet the need remains for structure and stability in an orderly society, lest the relations among people devolve into a competition defined solely by power, resembling a Hobbesian state of nature of a war of all against all. The solution proposed by various “left” writers, from Rousseau to Marxist-Leninists of various stripes, of a government where the rulers embody a stylized “general will” of the collective in place of the expression of individual wills inevitably has led to dictatorship and oppression. To have that necessary stability, yet foster individual flourishing, there must be, as various Supreme Court opinions have pronounced, “ordered liberty” whose fundamental principles are protected under the Constitution. The difficulty, of course, lies in striking that balance, of achieving practically what otherwise is only an aspirational slogan.

The Framers of the Constitution and other Americans of that era understood all of this quite well. John Adams and the New Englanders came to this knowledge and conviction easily, based on their Puritan culture. Hard-headed and practical statesmen, such as Alexander Hamilton and George Washington, understood this from life experience in political and military conflict. Even those drawn to more utopian ideas and more naive idealism, such as Thomas Jefferson, were brought down to earth by revulsion at the excesses of the French Revolution set in motion by radical ideologies. Liberty and order, change guarded by tradition, were the guiding principles of the Founders, informed by the lessons of history and by their own experiences.

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.

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


The United States Constitution is the product of a process which attempted to address perceived inadequacies of the Articles of Confederation in dealing with practical problems of governance. Its writers sought to provide practical solutions, shaped by their experiences. On that matter, it was irrelevant whether the Philadelphia Convention technically acted outside its charge from the states and the Confederation Congress and produced a revolutionary new charter, which argument James Madison disputed in The Federalist, No. 40, or whether the Constitution was a mere extension of the Articles and “consist[ed] much less in the addition of NEW POWERS to the union, than in the invigoration of its ORIGINAL POWERS,” as he averred in essay No. 45.

There are numerous devices in the Constitution to frustrate utopian schemes. Most of them are structural. The drafters understood that utopian schemes were more likely to succeed in smaller and more homogeneous communities. Madison in The Federalist, No. 10, identified the problem as one of faction, where members of a community joined by a common passion to gain power. Derived from the natural inequalities among human beings, factions are a foreseeable part of society. While democracies are most susceptible to control by an entrenched faction, small republics are not immune. The danger somewhat abates across a state but is least likely to occur in the nation and within its general government. As he explained. Vividly:

The influence of factious leaders may kindle a flame within their particular states, but will be unable to spread a general conflagration through the other states: a religious sect may degenerate into a political faction in a part of the confederacy; but the variety of sects dispersed over the entire face of it, must secure the national councils against any danger from that source: a rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the union than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district, than an entire state.

Madison continued along the same vein in essay No. 51, “In the extended republic of the United States, and among the great variety of interests, parties, and sects, which it embraces, a coalition of the majority of the whole society could seldom take place upon any other principles, than those of justice and the general good …. And happily for the republican cause, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the federal principle.” [Emphasis in the original.]

In Madison’s view, emergence of a permanent majority faction was more concerning, as minority factions would be controlled through majority voting. Fortunately, the diversity of religious, economic, ethnic, and customary influences creates shifting alliances among various factions, none of which would become an established majority at the national level. This creates a protective moat for society against dangers from radical policies which one faction might seek to impose on the country. In addition, the structural balance of formal constitutional powers between the national government and the states, further prevents any utopian faction in one state from readily spreading to another. This “federal” structure is enhanced by what Madison considered to be the adoption within the Constitution of the principle of subsidiarity, that is, that most political matters would be handled at the lowest level of political units, rather than by Congress.

In essay No. 51, Madison also explained another protection against a radical utopian faction gaining hold of the national government, the separation of powers. That separation consists of two parts in the Constitution, namely, provisions which guarantee to each of the branches a degree of immunity and independence from the other, as well as provisions which create a blending and overlapping of functions and require the different branches to collaborate to create policy. Examples of the first group of provisions are the control each branch of Congress has over its membership and the immunity of its members from prosecution for debates in Congress; the President’s privilege to withhold information from the other branches protected under, among other sources, the “executive power” clause; and the Supreme Court’s tenure during “good Behavior.” Examples of the second are the Congress’s power of the purse, the requirement that both chambers agree to the same legislation, the President’s qualified veto over legislation, and the Court’s power of judicial review. These protections help guard against rash policies and, as Alexander Hamilton phrased it in The Federalist, No. 78, “dangerous innovations in the government, and serious oppressions of the minor party in the community.” Moreover, many state constitutions incorporate similar principles of separate, yet overlapping, powers.

Leaving aside the unelected judiciary, the selection process for these positions supports the protection against radical utopian factions. Much of the operation of the political system under the Constitution, as distinct from its substantive powers, is ultimately founded in the federal system of states. Madison addressed the complex interrelationship between national and federal characteristics of the Constitution in The Federalist, No. 39. The people elect the House of Representatives, and representation is apportioned among the states on the basis of population, which are “national” characteristics. However, the states respectively determine the qualifications of the voters through their control over the electoral franchise for their own legislatures. Moreover, each state is guaranteed at least one seat, so even the population basis of the House is qualified by the existence of the states. The Senate is organized on the basis of the equality of the states in their corporate political capacities, a “federal” characteristic, and members originally were elected by the state legislatures. The president is selected by a body which is based on allocations of electoral votes among the states through a combination of population and state equality. Moreover, these electors are selected by the state legislators. As Madison explained in essay No. 39, the eventual election of the president was expected to be made by the House of Representatives, but on that occasion voting by state delegations.

The state-centric nature of these operative aspects of the constitutional structure helps diffuse power among various constituencies within a state and among different states. House members today are typically elected in single-member districts, whose constituents might be quite diverse from district to district. As originally envisioned, presidential candidates were selected by electors through a national, or at least regional, frame of reference. With the advent of modern political parties and the demographic changes over the past century, the president today is elected by a national constituency. Still, having to gain the endorsement of one of the two major political parties by having to appeal to different types of constituencies complicates the efforts of a radical faction’s candidate to gain sufficient power to orient the nation’s policies in a utopian direction. Political pragmatism and compromise is the inertia within the system.

One might add to these constitutional rules others of a more institutional origin. One such device which protects against utopian projects by a majority faction is the Senate’s “filibuster” rule. Another is the collection of arcane parliamentary procedures in the houses of Congress which can be used to derail or moderate legislation. Yet another is the committee structure and, at least in the past, the seniority system for chairmanships when powerful committee chairmen could frustrate the demands of the majority.

The problem with this presentation of a system of machine-like operation under clear constitutional rules that create a carefully-calibrated balance among various political actors, all while allowing government to function, yet protecting minority rights and guarding against dangerous utopian tendencies, is that it flatters irrationally. Seeing the political system only through the technical functioning of the rules is slanted and presents what one might call a “utopian” view. In fact, a hard look at the current system is needed to see how differently it operates.

At the level of national versus state governments, both consume a vastly greater percentage of Gross Domestic Product than a century ago, never mind two centuries ago. The national government’s share in particular has increased manifold. The national debt is at a record peacetime high in relation to GDP. The current use of debt by all levels of government would make the schemers in the state governments of the 1780s blanch. Congress today uses its legislative powers over interstate commerce, taxing, and spending to intrude into the most local and personal activities. Madison’s explanation in essay No. 39 of The Federalist that the national government’s jurisdiction extends to only a few enumerated ends, while the states have “a residual and inviolable sovereignty over all other objects” seems quaint and quizzical. Indeed, the very concept of residual state sovereignty has been neutered through Congress’s use of its taxing and spending powers, just as the Anti-federalists predicted and Hamilton attempted to refute in essays No. 32 and 33 of The Federalist. Prodigious government grants of money are a lifeline for much academic research, and those funds are readily applied to advance utopian projects by their recipients. As to legislation at the state and local levels, the ubiquity of laws far surpasses that of the earlier time, a product perhaps of a more complex society or the fact that legislating has become a full-time occupation for many politicians today.

As to the separation of powers, the contrast between the Constitution’s text and the operation of the system is if anything, starker. The proliferation of “alphabet agencies,” unencumbered by doctrines of separated functions, make rules, enforce them, and adjudicate violations of those rules in formally civil, but functionally criminal, proceedings. Those rules, adopted by generally unaccountable “independent” commissioners, administered by career functionaries, and virtually immune from judicial challenge, constitute the vast majority of the American corpus juris. There has been significant research into the political tactic of “regulatory capture,” whereby private entities, be they businesses, unions, or ideological “NGOs” (Non-Governmental Organizations) effectively take control of regulatory agencies. The danger with the last of these is that they often pursue utopian agendas behind the label “public interest,” rather than the more prosaic economic benefits to which the first two usually direct themselves.

There has been a concomitant expansion of executive power. The growth of the White House budget for various in-house offices, agencies, and directors which often parallel the domains of the formal constitutional departments, yet are independent of them, is one measure. As well, vast delegations of authority by Congress to the executive branch occurred as early as the Woodrow Wilson administration. The Supreme Court took some desultory steps against such delegations during the 1930s. Justice Felix Frankfurter warned about the expansion of executive power in his concurrence in Youngstown Sheet & Tube v. Sawyer, the famous Steel Seizure Case in 1952. Yet the Supreme Court has not struck down such a delegation in nearly a century. Some of this delegation, as well as broad ritualistic claims of inherent executive authority, arose in connection with war or other emergencies. Unsurprisingly, those powers continued during peace. A claim of discretionary power to act in emergencies inevitably produces more claims of emergencies. As shown by quite recent history, similar displays of broad executive power and uncontrolled administrative governance are part and parcel of state and local systems, as well.

As to constitutional barriers to utopianism provided by the electoral structure, or institutional barriers through the filibuster, one must wonder about their continued efficacy. Gerrymandering of districts has produced many “safe” partisan districts, where primary elections control the eventual outcome. Primary elections—or local party caucuses—attract the most ideologically committed participants. Such gerrymandering has been blamed for the election of candidates committed to ideologically pure, but practically harmful, utopian policies.

The mobility of American society and the advances in communications technology and entertainment have challenged Madison’s basic assumption about the diversity of interest groups rooted in different geographical areas. The electorate has become much more homogeneous and “national,” so that a nation-wide electoral majority might degenerate into an ideological faction similar to what Madison described was the danger in a local democracy. Candidates, too, are less dependent on the moderating influences of party organization. One need only to consider the emergence of billionaire-politicians and celebrity-politicians who can use their money or status to capture a party’s nomination and, subsequently, the office, without the support of the party’s established apparatus. Institutional restraints, such as the filibuster, have been weakened and are threatened with elimination, which would further undermine protections against a bare majority faction in Congress imposing utopian projects on the country.

Madison dismissed the dangers of a minority faction controlling Congress because of the “republican principle” of majority vote. But a minority faction driven by utopian fervor is much more likely to coalesce than a majority, and Madison’s faith in the vote is too blind to that danger. It has long been established that an ideologically committed organized minority can control an unorganized majority in politics or otherwise. The large economic or psychological benefits of a policy to the members of the minority outweigh the proportionally smaller costs to each member of the majority. With the increased and hidden power of unelected entities described earlier, the danger becomes more acute. One example should suffice: Before his inauguration, President-elect Donald Trump challenged leaked, unsubstantiated claims by American intelligence agencies that Russia had hacked the 2016 election. Senator Charles Schumer then warned President Trump, “You take on the intelligence community—they have six ways from Sunday at getting back at you.” Schumer was not alone in that prognosis. The specter of the hidden intelligence apparatus undermining the president in pursuit of an ideological objective has been raised many times over the past decades and is in direct conflict with the constitutional order.

In similar manner, the doctrine of judicial review has increasingly been used to advance constitutional novelties. The Constitution provides a formal amendment process, based on broad super-majoritarian approval that is, in Madison’s description, partly federal and partly national. It requires broad consensus in Congress and among the people or legislatures of the states. There has also developed an informal amendment process which retains elements of popular approval and consensus. For example, when Congress passes a law, the president signs it, and there is no successful constitutional challenge brought to the law in the courts, continued and open adherence to that law by the people over time makes that law’s political essence part of the constitutional fabric. A similar development occurs if a significant number of states pass laws respecting a particular matter of state control, if those laws do not conflict with a clear constitutional provision. A constitutional challenge to such well-established laws years later ordinarily should be rejected, because, as Hamilton stated, the purpose of judicial review is to prevent sudden popular passions from passing laws which violate established constitutional rules and threaten individual rights.

In that sense, judicial review is “conservative.” Judicial review is not intended to have five unelected judges decree a novel constitutional order by overturning long-established laws. That is the function of lawmakers in legislatures or constitutional conventions. Yet, the Supreme Court at times has taken on that function by discovering fanciful, previously unheard-of constitutional meaning in ambiguous clauses. These discoveries typically reflect the views of a narrow socio-political elite more than those of the citizenry at large. An ideologically committed minority faction is thus able to impose its utopian vision on the majority.

One can easily come up with more examples of current functional weaknesses and dysfunctions in the constitutional system described by the writers of The Federalist. The Anti-federalists broadly predicted many of the current developments, although it is to be doubted that their proposals, to the extent they had any, would have worked better to preserve the republican nature of the original order. Nor is it to be understood that all changes are necessarily bad. One might well agree with the social benefit of some of the constitutional innovations from the Supreme Court, yet be concerned about the way in which those changes came about. One might accept that some of the actions of the unelected agencies have been for the public good, yet worry about the threat to republican self-government posed by the bureaucratic state of self-declared “experts.” One might favor certain policies enacted into law by Congress, yet question the desirability of a system which increasingly micromanages life from thousands of miles away.

There are many ominous signs which suggest that we have lost our republican form of government as envisioned by the Framers. What we have left, it often appears, are certain trappings and rituals, much as happened with the Roman senate and other republican institutions during the Roman Empire and beyond. Perhaps the classic expositors of republics were right, that such a form of government cannot exist over a large area with many diverse groups of people. Perhaps Madison’s faith in the representative system was shaped by an implicit acceptance of the Aristotelian assumption that self-government was possible only in a community small enough that one could speak of “friendship.” There was much debate among classic writers about the size limits of community. One person did not make a polis. With 100,000, one no longer had a polis. At the time of the Philadelphia Convention, the largest state, Virginia, had a population over 800,000, including slaves. The next largest, Pennsylvania, had under 500,000. The debate over proper-sized districts for the House of Representatives, the most “republican” part of the government, settled the number at 30,000 residents per representative. The Anti-federalists challenged this ratio as too high and unrepublican by pointing out that in Pennsylvania’s state legislature, the ratio was one representative for each four to five thousand residents. Madison replied in essay No. 55 that the House of Representatives would only deal with national matters which do not require particular knowledge of local affairs or connection to specific local sentiments. Today, each congressional district approaches the then-population of Virginia, and the Congress regularly passes laws which have profound local effects. Whether or not Aristotle was correct about the precise limits of “community,” surely it beggars belief to say that today’s congressional districts are republican in anything but name.

Long tenures in office were another danger, according to republicans. The Articles of Confederation limited the number of terms a member of Congress could serve. The Constitution does not. Hence it is common for representatives to spend decades in office, which results in part from the difficulty of ousting incumbents in large districts gerrymandered to protect them. It is problematic to claim that such effective life tenures are “republican.”

Another important role in republican systems is played by various non-governmental social associations, such as the family, religious institutions, unions, and charitable groups. The 18th-century Anglo-Irish philosopher and politician Edmund Burke centered his theory of constitutional stability on the vitality of such institutions, which represent tradition and continuity and thereby guard against radicalism and turmoil. Burke was quite familiar to Americans for his vindications of their political claims before and during the Revolutionary War. He contrasted the stability of the English constitutional system with the situation in France. He was horrified by the violence of the French Revolution which grew from its utopian radicalism. It is inevitably the object of totalitarian governments to destroy or subjugate such intermediary institutions which threaten the power of the state over the people.

One must consider, then, some uncomfortable topics. To what extent has the American family structure been undermined by divorce, single parenthood, and various incentives created through the welfare state? How significant are religious institutions in the life of Americans today compared with preceding generations? With the exception of public employee unions, how significant are labor unions today? The same question must be asked about the vitality of local business associations and related service clubs, which played such significant roles in communities in the past.

The great Northwest Ordinance of 1787 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 goal reflects the inculcation of private virtue which the different groups of American republicans agreed were a necessary basis for the preservation of republican government, even if some argued that it was not a sufficient basis. Are educational institutions fulfilling their task of teaching the heritage, morals, and substantive knowledge upon which the founding generation staked the success of their republic, or has the radicals’ long march through those institutions corrupted that mission?

Is the current dynamic of identity politics leading us to a dangerous tribalism which tears the social bonds necessary for a stable and peaceful community? If factions are the bane of republican systems, will the stress of this anarchic impetus ultimately lead to a collapse into the tyranny which the Anti-federalists feared?

If freedom of the press is needed for “republican form of government,” are the media providing useful information to the public or at least performing their self-appointed task of bravely and indiscriminately “speaking truth to power”? Or have they become so ideologically blinded to convince themselves of the righteousness of their quest to indoctrinate the public, that they have vindicated Thomas Jefferson’s indictment of the press in his 1807 letter to John Norvell, “Nothing can now be believed which is seen in a newspaper. Truth itself becomes suspicious by being put into that polluted vehicle….The man who never looks into a newspaper is better informed than he who reads them, inasmuch as he who knows nothing is nearer to truth than he whose mind is filled with falsehoods and errors.”

Many of these dysfunctions were spawned by utopian schemers who without thought or hesitation cast aside rules and institutions forged in human experience. They failed to heed G.K. Chesterton’s warning in his parable of the fence built across a road not to tear it down until one clearly understands why it was erected in the first place.

As explored over these 90 sessions, the Constitution’s drafters constructed a framework of republican government and the means to preserve it. The structural components of the system, functioning as intended, assist that task. However, the Framers understood their own fallibility and the fragility of their creation. The Constitution is just a parchment. To give it life requires the attention of a civically militant citizenry committed to the preservation and functioning of its parts. That is the politics of the true “living constitution.” And, as has been said, politics is downstream from culture. The French philosopher Joseph de Maistre pungently observed, “Every nation gets the government it deserves.” Although his comment was about Russia, it would have particular relevance for a republic. Likewise, in his famous aphorism, Benjamin Franklin did not just say to Mrs. Elizabeth Powel that the convention had produced a republic. He added, wittily but ominously, “if you can keep it.” The question is whether the American people continue to be up to the challenge.

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.

 

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Guest Essayist: Joerg Knipprath


Utopianism appears to be inbred in the human brain—the desire for the perfect life, however a person might define that. Parents tell children to “follow their dreams.” Adults, too, often follow suit. Examples abound, from the ‘49ers of the California Gold Rush, to the “drop-out” hippie communes of the 1960s, to current athletes and entertainers. From print publications to electronic media, the protagonists of many stories—fictional or true—are those who “followed the beat of their own drum.”

This human trait is admirable and is something which marks us as more intellectually complex than brute animals. Aristotelian understanding of “happiness”—eudaimonia—is that quest for a fulfilled and flourishing life, to be “truly human.” One might never fully attain that state, or, Aristotle advises, one might not fully comprehend it until one is close to death. Even the failure of such a quest, though, can teach valuable lessons. A person might end the journey to become a singer, once she realizes that the agitation among the neighborhood’s cats stem from the sounds she emits. Instead, perhaps a new dream to become a talent agent forms to motivate her. Looked at another way, even if her utopian vision fails completely, it likely affects only her and perhaps a few around her.

By contrast, utopianism at the level of societies is much more dangerous to human flourishing. At that scale, failure, such as the collapse of a polity, affects multitudes in a profoundly existential manner. The ship of state requires a calm hand at the wheel. Phronesis, the classical virtue of practical wisdom, must control, not utopian passion. The statesman must have the clear ability to make the moral and practical choices which conduce best to the well-being of the community.

Still, there lurks the unsatisfied yearning to achieve, or to return to, the perfect society. It is the psychological desire to return to a Garden of Eden and a state of perfect innocence. From a Neo-Platonic perspective, which influenced the writings of St. Augustine and other early Christians, this yearning might reflect the human soul’s longing to attain union with the ultimate Good, or God.

Writers since ancient times have dabbled in philosophic creation projects of ideal societies. Plato’s 4th-century B.C. Politeia (The Republic), his prescription for a government run by a “guardian class” of philosopher-kings, is an early example. Thomas More’s 1516 book Utopia about an ideal society dwelling on an idyllic island, is another. More recently, Karl Marx’s writings about the process of historical transition which ultimately would end class strife through the establishment of a classless, communist society, dazzled many acolytes. Common to these three particular works, it should be noted, was opposition, in some manner or another, to private property. Another commonality was a degree of hostility to the traditional nuclear family structure.

At least the first two of these works are not necessarily to be taken at face value. The revolutionary changes which would be necessary to establish Plato’s ideal republic conflict with fundamental philosophic views he expressed in other writings. Moreover, he was quite clear about the inevitability that the project would fail due to the passions which are part of human nature. His work is a warning at least as much as it is a blueprint.

More’s work is satirical through and through, from the book’s title (a play on two similar sounding Greek words meaning no place—Utopia—and perfect place—Eutopia), to the names of various places and persons within the work, to the customs of his island’s denizens. It was satire of English society, but also a warning about societies unmoored from Christian ethics.

Along with utopian philosophies have come utopian projects. The Plymouth Rock Colony of the Pilgrim Fathers in 1620 was organized initially along communist principles of land cultivation. The disastrous economic consequences from that brief, two-year experiment threatened the very existence of the colony. Fortunately, the misstep was soon corrected. A similar fate awaited Robert Owen’s utopian “socialist” colony New Harmony, Indiana, which turned from a prosperous religious settlement when sold to Owen in 1825 to an economic shambles by 1828. The religious predecessor had also held property in common, but within a tightly-knit religious community. Owen’s associates lacked any strong bonds of community. As one contemporary commentator noted, “There are only two ways of governing such an institution as a Community; it must be done either by law or by grace. Owen got a company together and abolished law, but did not establish grace; and so, necessarily, failed.” He might have added one additional approach, the use of relentless force.

Often, these utopian communities are driven by a fervent vision of a new type of society founded on religious principles. They seek to create an earthly community close to God. Besides the Pilgrims, the Shakers and other charismatic groups come to mind. Others, like the Owenite socialists are motivated by more secular ideologies. Sometimes, an odd brew of messianic zeal and political ideology is blended, as in the “apostolic socialism” of Jim Jones’s People’s Temple in Guyana. These groups eventually adapt their dogma to the complexities of human nature and the real-world challenges of social living, as the Pilgrims and the Latter Day Saints did. Or, they disintegrate, as was the fate of the Owenites and the Shakers. Tragically, some come to a violent end under the thrall of a toxic “prophet,” as did the unfortunates of the People’s Temple.

Another factor which contributes to the instability of utopian projects is the scale of the venture. The communities previously mentioned were comparatively small. The Aristotelian ranking of associations from the family to the clan to the polis encompasses ever greater numbers. As those numbers increase and the members’ relationships to each other become more distant, the bonds become looser. Human nature is, essentially, selfish. Self-interest is not necessarily bad. Killing an attacker to save one’s own life has long been recognized as the most fundamental of natural rights. However, another human characteristic, more developed than in lesser species, is altruism.

Altruism, and one’s willingness to incur burdens for the benefit of another, is most pronounced in regards to those whom we “know.” The bonds of love are strongest towards immediate family members. They are also present, but less intensely, towards the extended family. Beyond that lie the still significant bonds of friendship about which Plato and Aristotle mused at length. Aristotle considered the highest form of friendship that which is maintained not for what one might get out of it, but, instead, what is done for the benefit of the other. He also considered friendship as the key measure of proper self-government in the polis. At some point, however, the number of residents within the community might grow too big for the mutual interactions required to maintain friendship. As that number grows, the psychological tension between self-interest and true altruism inevitably favors the former.

For example, a “communist” approach to work and reward can succeed within a family, perhaps even an extended one of longstanding relationships. Trouble arises when the relationships are not familial. To eliminate this inequality of sentiment, utopian societies seek to undermine or abolish the family and other voluntary affinity groups, which itself is doomed to fail and simply accelerates the group’s collapse. A large utopian society, whose members are not bound together by religion or by rules derived from long-established customs which reflect the traditional ordering within stable communities, requires increasingly brutal force to maintain commitment to the utopian project. Pol Pot’s devilish regime in Cambodia nearly half a century ago is a notorious example of this, as memorialized in the chilling movie The Killing Fields.

No matter how intellectually promising and rationally organized the effort is, human nature and passions will derail the utopian project. Plato laid the problem at the feet of eros—passionate love and desire—which upends the controlled marriage and mating program his ultra-rational utopia required. Among the rulers, nepotism and greed manifest themselves. It is hardly shocking that Fidel Castro acquired a wealth of nearly $1 billion at the time, all the while exhorting the unfortunate subjects in his impoverished nation to sacrifice for la Revolución. The inevitable failings of the system set off a hunt for scapegoats, those wreckers who do not show the requisite zeal and who harbor counterrevolutionary or other heretical views.

Within societies which are not openly pursuing some political or religious utopia, there may nevertheless be strong currents of utopianism. In our time and place, the extreme emphasis on risk avoidance is a utopian quest. It has resulted in a bloated legal and administrative apparatus as smaller and more remote and dubious risks are targeted. Economic and social costs are ignored as a health and safety security state takes shape. Those who dissent from the secular millenarian orthodoxy are liable to be marginalized or cast aside like religious heretics. Individual rights of association, religion, providing for oneself and one’s family, and bodily autonomy are subject to the guesses and whims of unelected credentialed “experts.” Yet these measures, when pursued robotically for some ideal beyond what practical wisdom would advise, fail or produce only marginal benefits, often at great cost. Even if they are abandoned, the damage has occurred.

In a related manner, there has been a decades-long quixotic quest to create emotional placidity. While not socially harmful if done on an individual, voluntary basis, compelled “treatments” have been a favorite of ideologues to deal with dissenters. The Soviet Union was infamous for its psychological analyses steeped in Marxist utopianism and its use of political dissent as “red flags” of psychological “deviance.” But the problem festers closer to home, as well. From state-applied electric shock therapy and lobotomies in the past, to the modern approach of psychotropic drugs, a therapeutic totalitarianism has been spreading. Those who dissent, especially parents who balk at such drug use or at school “safe zone” counseling done behind their backs, are liable to find themselves ridiculed or worse.

The delegates to the Philadelphia Convention were educated in classic writings and western history. They were not naïfs about human nature or politics. They understood lessons from the failures of regimes and the dangers of utopian projects, as did their opponents in the debate over ratification. Moreover, their own experience from the Revolutionary War, the Articles of Confederation, and service in their state governments had inured them to utopian speculations. Illustrative of the skepticism is a letter Alexander Hamilton wrote even as the struggle for independence still hung in the balance in 1781, “there have been many false steps, many chimerical projects and utopian speculations.” He noted that the most experienced politicians were Loyalists. He was registering his complaint about the lack of political sophistication among his co-revolutionaries in the conduct of the war, the adoption of the Articles, and the drafting of state constitutions.

That is not to say that the supporters and opponents of the United States Constitution lacked political and philosophic bearings. Most had a sense of what they wished to achieve, set within a coherent broader philosophic framework. The historian Forrest McDonald, in his far-reaching and detailed analysis of the framing of the Constitution, classifies the delegates into two groups, “court-party nationalists” and “country-party republicans,” analogous to the British Tory and Whig parties, respectively. Among the best-known such nationalists were Washington, Hamilton, Benjamin Franklin, James Wilson, Gouverneur Morris, and Robert Morris. Among the notable republicans were Elbridge Gerry, George Mason, Luther Martin, and Edmund Randolph. Others were more difficult to label. McDonald places James Madison in between the two groups and somewhat harshly judges the latter “an ideologue in search of an ideology.” He claims that by temperament Madison thought matters through to the detail and preferred “the untried but theoretically appealing, as opposed to the imperfections of reality.” Yet, he also concedes Madison’s willingness to abandon politically untenable positions as needed.

A third group, whom McDonald considers arch-republican ideologues, did not attend for varied reasons. They included Thomas Jefferson, John Adams, Sam Adams, Richard Henry Lee, and Patrick Henry. Some of these outsiders and other opponents of the Constitution presented more consistently “principled” arguments, but it is always easier to attack someone’s work than to provide a comprehensive and workable alternative.

None of the groups at the convention had a majority. Moreover, they were not ideological in the modern sense of positing a single abstract moving cause for all human action in the private and public realms. The closest might be the idea that humans act from self-interest. But there was nothing like Marxist economic determinism or Freudian psychoanalysis or current Marxism-derived Critical Race Theory. The various broader theories of government delegates favored still resulted in differences which must have seemed intractable, at times. Some delegates left out of frustration that their ideas about the proper constitutional order were not sufficiently realized.

But most held on and difficult compromises were eventually reached. Even the matter which deadlocked the convention for weeks and threatened more than once to tear it apart, namely the structure of Congress and the mode of representation, ultimately was resolved mostly in favor of the small states through Roger Sherman’s Connecticut Compromise. So was the controversy over Congress’s powers. The small-state proposal of an enumeration of specific powers supplemented by an enabling clause was adopted over a more national position favored by Madison that Congress would have power to address all issues which affected the nation where individual states would be “incompetent to act.” The slavery question was generally avoided. The concept was simply euphemized, rather than expressed. Specific issues, such as the fugitive slave clause and the three/fifths clause to apportion representatives and direct taxes were borrowed from the Northwest Ordinance of 1787 and a failed amendment to the Articles of Confederation. Whatever might have been the hearts’ desires of various philosophically committed members, compromise prevailed. The result was a system which was partly federal and partly national, as Madison laid out the particulars in Number 39 of The Federalist.

As remarked in previous essays, the authors of The Federalist emphasized the influence of experience, not idealism, on the convention’s deliberations, and the process of compromise, not purity, which resulted in a plan suited to the practical demands of governing. Aside from Hamilton’s noted aphorism in Number 6 of The Federalist, “Let experience, the least fallible guide of human opinions, be appealed to for an answer to these inquiries,” the authors repeatedly drew on experience under the Articles of Confederation, the state constitutions, and earlier European and ancient systems. That was, of course, also what the convention had done. In Number 38, Madison mocked the variety and inconsistency of objections and their often vague and general nature. While his sarcasm disparages the constructive and systematic efforts of opponents such as the “Brutus” essays by New York’s Robert Yates, Madison’s specific examples illustrate the spirit of pragmatism at the convention. He declared “It is not necessary that the [Constitution] should be perfect: it is sufficient that the [Articles are] more imperfect.” In Number 41, he acknowledged, “…that the choice must always be made, if not of the lesser evil, at least the GREATER, not the PERFECT good; ….” [Emphasis in the original.]

Perhaps the best summation of the pragmatism which steered the delegates as they proceeded with their work was voiced by Benjamin Franklin. He rose on the day of the final vote and implored his colleagues, “Thus I consent, Sir, to this Constitution. Because I expect no better, and because I am not sure, that it is not the best. The opinions I have had of its errors, I sacrifice to the public good….I can not help expressing a wish that every member of the Convention who may still have objections to it, would with me, on this occasion doubt a little of his own infallibility, and to make manifest our unanimity, put his name to this instrument.”

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.

 

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Guest Essayist: Joerg Knipprath


At the 1896 Democratic Party convention in Chicago, a former Congressman from Nebraska, William Jennings Bryan, gave a stirring oration in favor of the party’s “pro-silver” political platform. Filled with passion and a near-revolutionary fire, the speech concluded with a warning to those who wanted the United States to maintain a gold standard for the dollar, “You shall not press down upon the brow of labor this crown of thorns; you shall not crucify mankind upon a cross of gold.” Bryan underscored this patently religious analogy by posing at its conclusion with his arms outstretched like someone nailed to a cross. The convention erupted in pandemonium. The ecstatic reaction of the delegates resulted in the “Boy Orator of the Platte River” receiving the party’s nomination for president of the United States at age 36, the youngest major party nominee ever. He became the Democrats’ presidential standard bearer twice more, in 1900 and 1908, again the only major party nominee to do so. He lost each time.

In addition to the Democratic Party nomination, Bryan received that of the more radical, mostly rural-based Populist Party, which favored federal government intervention in the economy. The Populists split after the 1896 election, with most supporters voting for Democrats, while others, typically urban workers, drifted to the Socialist Party. Although historians have long debated the direct influence of the Populist Party on the Progressive movement of the turn of the 20th century, there are clearly identifiable connections between them in regards to economic and political reforms. One difference, however, is in their class identification. The Populist movement was working class and agrarian. The Progressive reformers were upper-middle class urbanites, many from the Midwest. Related to that difference was the greater support for Progressivism among intellectuals and “scribblers,” which produced a more coherent political program and a stronger ideological framework. Ultimately, this produced far greater political success for the Progressive agenda—and more lasting repercussions.

As that passage from the “Cross of Gold” speech suggests, Bryan had a strong evangelical and Calvinist bent. He had a religious conversion experience as a teenager and in his entire life remained a theological conservative who preached a social gospel. His resort to religious imagery and apocalyptic language was not uncommon among Progressives. Theodore Roosevelt could thunder to the assembled delegates at the Progressive Party convention in 1912, “We stand at Armageddon, and we battle for the Lord,” as his enraptured supporters marched around the hall, singing “Onward, Christian Soldiers” and similar spirited hymns.

Those Progressives who were more skeptical of religion nevertheless had similarly messianic visions of reform which would deliver the country from its ills and lead to the Promised Land. The forces for change would be a democratized political structure invigorated by mass participation; a concerted program to attack the root causes of societal dysfunctions, from poverty to alcohol, narcotics, gambling, and prostitution; laws to prevent exploitation of the large urban working class; and, most fundamental, a rational system of policy-making controlled by a strong executive and a stable bureaucracy of technological and scientific experts. As presidential nominee Woodrow Wilson announced in his campaign platform in 1912, “This is nothing short of a new social age, a new era of human relationships, a new stage-setting for the drama of life.” Certainly nothing picayune or transitory about that!

The first of those goals was accomplished over time with the popular election of Senators through the 17th Amendment, and through the adoption by many states of the initiative and referendum process, primary elections for nominations for public office, more expanded “home rule” for localities, and non-partisan elections for local offices. Further, the half of American women excluded from the franchise received it through the 19th Amendment, adopted in 1920. On the other hand, by the late 1920s, the Progressives’ nativism eliminated the previous practice in a number of states of letting non-citizen immigrants vote.

The second came in the form of state laws against vice. Lotteries became illegal. Prostitution, which was ubiquitous at the turn of the 20th century typically in the form of brothels, was already against the law; those laws began to be enforced more vigorously. Another of America’s periodic movements to ban alcohol got under way. Because state laws often proved unable to control interstate markets of vice made possible through easier modes of transportation, the federal government became involved. Narcotics were regulated through taxation under the Harrison Narcotics Tax Act of 1914. The interstate transportation of lottery tickets was prohibited in 1895 through a federal law upheld by the Supreme Court in Champion v. Ames in 1903. The Mann Act, or White Slave Traffic Act of 1910, prohibited taking a woman across state lines for immoral purposes. That law was upheld by the Supreme Court in Hoke v. United States in 1913 and extended to non-prostitution private dalliances in Caminetti v. United States in 1917. After 27 states declared themselves “dry,” and others adopted “local options” to prohibit alcohol, temperance groups, especially those connected to upper-middle class women’s organizations, succeeded in having the 18th Amendment adopted in 1919. That national ban on production, sale, and transportation of alcohol for drinking was quickly followed by enabling legislation, the Volstead Act, that same year.

The third area of social reform was advanced through the adoption of maximum hour laws, minimum wage laws, unionization protections, and anti-child labor laws around the turn of the 20th century. Some such efforts, especially by Congress, initially came a cropper before the Supreme Court as violations of the United States Constitution. They fared better during the next wave of Progressivism under President Franklin Roosevelt in the 1930s.

The fourth, a government and society directed by an unelected technocratic elite of policy-making experts, lay at the heart of the Progressive movement. It proved to be a long-term project. To understand the “Progressive mindset” requires a closer examination of two men, Woodrow Wilson and Herbert Croly. There were other influential intellectuals, such as Walter Lippmann (who wrote A Preface to Politics in 1913, among many other works) and Brooks Adams (who was a grandson of President John Quincy Adams and wrote A Theory of Social Revolution that same year), but Wilson and Croly were renowned.

Thomas Woodrow Wilson was dour, humorless, and convinced of the fallen nature of all but the elect few. For human progress to flourish, he postulated the need for strong leaders with proper principles who would provide the discipline and vision for the moral guidance of the weak at home and abroad. Calvinist in appearance, outlook, and family background (his father and grandfather having been Presbyterian ministers), he embodied the caricature of a Puritan divine. Those traits also made him a perfect Progressive.

Before becoming president of the United States, Wilson was a professor at Princeton University, later becoming its president. He also was elected governor of New Jersey. During his academic tenure, he wrote several influential books which set forth his criticisms of American constitutional structure. His proposed solutions cemented his bona fides as a Progressive.

Wilson was strongly influenced by 19th century German intellectual thought, especially Hegel’s views of the State as the evolutionary path of an Idea through history, and by contemporary adaptations of Darwinian theories to social science. Indeed, so enamored was Wilson of German philosophy and university research that his wife, Ellen, learned the language just to translate German works of political science for him.

Wilson enthusiastically embraced the nascent ideology of the State. He characterized that entity as organic and contrasted it with what he described as the mechanical nature of the Constitution with its structure of interacting and counterbalancing parts. As he wrote in Constitutional Government in 1908, “The trouble with [the Framers’ approach] is that government is not a machine, but a living thing. It falls, not under the theory of the universe, but under the theory of organic life. It is accountable to Darwin, not to Newton.”

The “organic” State tied to the people in some mystical union must not be shackled by a fusty piece of parchment with its artifice of checks and balances. An entirely new constitutional order must be created that reflects the inevitable ascendancy of the State in human affairs. If that was not a realistic option due to reactionary political forces or sentimental popular attachments, the parchment must be broadly amended. During Wilson’s first presidential term, constitutional amendments to authorize a federal income tax and to elect Senators by popular vote were approved.

Beyond formal amendment of the Constitution, the various components of the government had to be marshaled into the service of Progressivism. Thus, Congress must pass far-reaching laws that increase state power at the expense of laissez-faire individualism. The result was a series of federal regulatory laws in union-management affairs, antitrust, child labor, tax, and—through the creation of the Federal Reserve system—banking. That activism was replicated in many states. The era of big government had arrived.

As usual, the Supreme Court took longer. Though the Court upheld various particulars of Progressive legislation, the organic theory of the state was not embodied forthrightly in its decisions until the later New Deal years and the post-Second World War emergence of the “Living Constitution” jurisprudence. Adherents to the Progressive deification of the State, then and now, have sought to remake judicial doctrine by untethering it from formal constitutional structure in favor of ideological dogma. Their efforts have focused on an expansive interpretation of Congressional powers, disregard of the prohibition against excessive delegation of power to bureaucracies, and a transformation of the Equal Protection Clause into a contrivance for “positive” equality. On that last point, success has been slow in coming. But since every political entity necessarily has a constitution, for Progressives it is beyond cavil that their “organic state” requires a progressive living constitution, one that prioritizes social justice and secures equality of condition. Exempting, perhaps, the governing elite.

That left the Presidency. Wilson’s early work, Congressional Government from 1885, reflected his contempt for American separation of powers and urged constitutional change to a parliamentary-style system with centralized power and an expanded federal bureaucracy. He dismissed the president as a mere “clerk of the Congress.” Over the next two decades, his perceptions about the Presidency changed significantly. Wilson regarded the administrations of Grover Cleveland and Theodore Roosevelt as exemplary. His last major work, Constitutional Government, published in 1908, focused on the Presidency as the engine for change.

Wilson’s eventual views of the Presidency were thoroughly 20th century. He treated the formal constitutional powers of the office as minor matters and regarded its occupant as increasingly burdened by obligations as party leader and as executor of the laws and administrator of Congressional policies. That burden had become impossible for a single man, a refrain frequently heard before and since. This fact of political life would only become more pressing with the inevitable—and welcome—evolution to a more powerful and controlling State.

Therefore, a president will and must leave the performance of those duties increasingly in the hands of subordinates. The appointment of trusted officials was more important than the selection of wise men of different opinion to give him counsel, as George Washington did, or of leaders of prominent factions within the party coalition, as was the practice of, among others, Abraham Lincoln. Instead, as Wilson wrote, presidents must become “directors of affairs and leaders of the nation,—men of counsel and of the sort of action that makes for enlightenment.”

Theodore Roosevelt’s “bully pulpit” construct of the Presidency was the new model. The traditional chief executive dealt with the congressional chieftains to influence policy as it emerged within those chambers in response to the broadly-felt needs of the times. Instead, the modern president would bypass the ordinary channels of political power and appeal to the public to shape policy to his creative vision. Wilson wrote, “The President is at liberty, both in law and in conscience, to be as big a man as he can. His capacity will set the limit….” This Nietzschean conception of the Presidency as a vessel for its occupants to exercise their will to power is quintessentially fascist. The focus on the charismatic and messianic leader as the ideal of government and the vehicle for progress to a utopian just society is a hallmark of American progressivism to this day and has also characterized the more virulent forms of collectivism. There are telling appellations:  Il Duce Mussolini, Der Fuehrer Hitler, Vozhd Joe Stalin, El Líder Castro, and North Korea’s Kims (Great Leader, Dear Leader, and Respected Leader). All convey the same meaning. Personality cults inevitably accompany Progressive-style leaders.

Wilson’s descriptions of the Presidency and the reality of political practice had a core of truth, lest his prescriptions not be plausible. To get to those prescriptions, however, he set ablaze many constitutional straw men. Though he paid lip service to the Constitution’s framers’ sagacity, he understated their practical appreciation of the office. Alexander Hamilton wrote several Federalist Papers that extolled the need for energy and accountability in the Presidency which he argued were furthered by the Constitution’s structure of the unitary executive. Through his Pacificus Letters, Hamilton became the foundational advocate of a theory of broad implied executive authority on which later presidents relied, including Wilson’s model, Theodore Roosevelt. George Washington shaped the contours of the Executive Branch by his actions within the purposely ambiguous contours of presidential powers under the Constitution. There were serious debates in the Washington administration about the nature of the president’s cabinet and the constitutional relationship between the president and the officers, debates that were generally resolved in favor of presidential control over those officers.

Wilson decried what he saw as a lack of accountability in the Constitution’s formal separation of powers. Yet it was his system where the president is “above the fray,” while little-known and uncontrolled subordinates carry out all manner of critical policies without, allegedly, his awareness. Events over the past two years have amply demonstrated the flaws of rule by credentialed, but unaccountable “experts” at all levels of government. Their decrees, too often based on misunderstood or even fabricated “evidence” and produced in a closed culture implacably hostile to dissent, affected Americans in profound economic, psychological, and social ways. Long-cherished individual rights were brushed aside, selectively, by this pretended clerisy through appeals to the greater health of the society and the common good, appeals which were frequently shown not to affect the behavior of the elite elect. All the while, politicians sought to deflect responsibility onto those bureaucrats.

Herbert Croly was perhaps the most important intellectual of Progressivism, next to Wilson. That seems odd, given the tortuous language and convoluted emotive passages that characterize his work. The Promise of American Life, published in 1909, is Croly’s most significant contribution to public debate, one that supposedly so influenced Theodore Roosevelt it is said to have been the catalyst for Roosevelt’s return to politics as a third-party “Bull Moose” presidential candidate in the 1912 election. Whereas Wilson dealt with constitutional structure and politics, Croly focused on political economy.

In Promise, Croly described himself and his vision as Hamiltonian. But it painted as “Hamiltonian” something that Alexander Hamilton would have foresworn. Croly argued for organization of the economy through coordination among large nationalized corporations, powerful and exclusive labor unions, and a strong and activist central government. This was the classic corporatist model of “rationalizing” the economy. It embraced the essence of fascist political economy and, with some tinkering, of socialist and Progressive systems. Whereas Hamilton proposed to use government incentives to unleash the entrepreneurial and inventive spirit of Americans to create wealth which ultimately would benefit all, Croly wanted the national government to throttle such entrepreneurial opportunity in favor of large entities, enhance the powers of the few, and use public policy to legislate a welfare state for the poor. However, haphazard social welfare legislation would be inadequate. As noted, the program had to be comprehensive of the whole of society. Independent small businesses, as elements within traditional American republicanism, were the bane of Progressive true believers in mass organization. Theirs would be a coalition of the wealthy few, an administrative elite, the working class, and the mass of poor against the broad middle.

Another book, Progressive Democracy from 1914, extended Croly’s Progressive canon. It rested on the usual Progressive premises, such as the omnipotent, all-caring, and morally perfect Hegelian God-state that would be the inevitable evolutionary end of Progressive politics. It posited the notion—so common in Progressive and other leftist theory—of stages of human social and political development that have been left behind and whose outdated institutions are an impediment to ultimate progress. Hence, Croly insisted, the Constitution’s structure of representative government and separation and division of powers needed to be, and would be, changed. Unlike the societal realities of the late 18th century which had produced American republicanism in the form of representative government within a federal structure, “In the twentieth century, however, these practical conditions of political association have again changed, and have changed in a manner which enables the mass of the people to assume some immediate control of their political destinies.”

The new political mechanism was direct democracy, the most authentic expression of popular will. It was beloved of leftists of all stripes. At least in theory. However, Croly considered reforms such as the initiative, referendum, primaries, and popular election of Senators to be misdirected and inauthentic if they were used only to restrict government power and to correct government abuses. As such, they were still shackled by old conceptions about the primacy of individual rights and by the suspicion of powerful government that had characterized the earlier period of Jeffersonian republicanism. “If the active political responsibilities which it [direct democracy] grants to the electorate are redeemed in the negative and suspicious spirit which characterized the attitude of the American democracy towards its official organization during its long and barren alliance with legalism [the Constitution as a formal system of checks and balances that controls the actions of the political majority], direct democracy will merely become a source of additional confusion and disorganization.”

There were, then, bad and good direct democracy. The good form was one that produced the proper, Progressive social policy, and accepted the dominance of powerful state organs which could accomplish that policy: “Direct democracy…has little meaning except in a community which is resolutely pursuing a vigorous social program. It must become one of a group of political institutions, whose object is fundamentally to invigorate and socialize the action of American public opinion.” Note some key words: A political system must be measured by “meaning,” such as the quintessentially Progressive “Politics of Meaning,” long associated with manifestos of the American Left. “Vigor” and “action,” two words that were markers of Progressive ideology and rhetoric at the personal, as well as the political, level. Wilson, the two Roosevelts, and John and Robert Kennedy strove mightily to present themselves as embodying those very characteristics, often to hide physical limitations. Finally, “social” or “socialize,” as the antidote to the traditional American insistence on the rights of individuals that were derived from sources outside the State and which trumped the demands of the collective.

In that “good” form, popular participation was, in effect, a thermometer to measure the temperature of the public’s support for an activist political program. Croly advised, “A negative individualistic social policy implies a weak and irresponsible government. A positive comprehensive social policy implies a strong, efficient and responsible government….A social policy is concerned in the most intimate and comprehensive way with the lives of the people. In order to be successful, it must rest on the basis of abundant and cordial popular support.” Instead of a structure constrained by the text and the received traditions of fundamental law, government would be limited only by vague measures of its policies’ popularity.

Despite Croly’s perfunctory disclaimer, popular participation was to be little more than a plebiscite on actions to be taken by a legislature otherwise unrestrained by the formal structures of the “Law.” “The government must have the power to determine the Law instead of being circumscribed by the Law,” he wrote in Progressive Democracy. As Croly—and Wilson— recognized, legislatures would not be up to the task of supervising such an increasingly intrusive paternalistic State. Hence, a powerful administrative apparatus was required. That signature component of the modern regulatory state—the vast, unelected bureaucracy—was necessarily beyond the control of the people. True, it might be a dictatorship of the technocratic elite, but it would be a benevolent one, we are assured, always loyally and selflessly laboring for our weal.

But like H.G. Wells’ society of Eloi and Morlocks in The Time Machine, the Progressive state was not as benign as its propagandists depicted it on the surface. The Progressives had a strong Darwinian bent. If Woodrow Wilson identified the State as an organism governed by the biological laws of Darwin, those laws raised some uncomfortable topics. Evolution and change are the constants of such a system; evolution requires adaptation to change. But in the State, unlike nature, adaptation could not be left to chance but must be directed rationally. Where survival of the fittest was the rule, only the fittest could rule. That the government was not under more direct control of the people was due to what Croly euphemistically described as the small size of the fund of social reason.

In view of that scarcity of social reason, Croly explained, “[the] work of extracting the stores of reason from the bosom of society must be subordinated to the more fundamental object of augmenting the supply of social reason and improving its distribution.” This was a task critical to the success of government unconstrained by the old Constitutional structures. “The electorate must be required as the result of its own actual experience and unavoidable responsibilities to develop those very qualities of intelligence, character, faith and sympathy which are necessary for the success of the democratic experiment.”

While Croly proposed that education would provide the means of human progress and the nurturing of social reason among the mass of people, there were those who were unfit for such efforts. Croly, like Woodrow Wilson and unlike William Jennings Bryan, believed in the need for state regulation of marriage and reproduction to combat crime and insanity and to promote the propagation of the truly fittest. When he was governor of New Jersey, Wilson signed a law of just such tenor that targeted various “defectives” for sterilization. Therein is mirrored one of the traits commonly attributed to the progressive intellectual. He professes to idolize humanity and the principle of popular government, but he despises humans and distrusts individual autonomy and political choice.

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.

 

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Domenica del Corriere, Italian newspaper, drawing by Achille Beltrame depicting Gavrilo Princip assassination of Archduke Franz Ferdinand of Austria & his wife Sofie, in Sarajevo, Bosnia, June 28, 1914.


Supporters of the proposed United States Constitution of 1787 frequently warned that there was no mechanism under the Articles of Confederation to prevent what they saw as the inevitable commercial rivalries between the states from escalating into armed conflict. Such rivalries had begun to appear through protectionist trade laws enacted by various states. Another event was the dispute between Virginia and Maryland over fishing and navigation in Chesapeake Bay and the Potomac River. The end, the Federalists charged, would surely be the dissolution of the union into some number of quarreling confederations.

The Anti-federalists had several responses. First, Number IX of the Articles authorized Congress, on petition by any state, to provide for the appointment of a court to resolve any conflict between that state and another. Second, they pointed to the Mount Vernon Conference of 1785 which had settled those very divisive claims between Virginia and Maryland. Third, they declared that it was fanciful to claim that republics, especially those with commercial relations as close as those within the Confederation, would go to war with each other. The history of republics wagered against such eventualities, they asserted. As William Grayson, a moderate opponent of the Constitution, put forth at length before the Virginia ratifying convention, the states were bound by mutually reinforcing commercial bonds and interests. He sarcastically described the Federalists’ panicky and hyperbolic claims as predicting that Pennsylvania and Maryland would attack like Goths and Vandals of old, and that “the Carolinians, from the south, (mounted on alligators, I presume), are to come and destroy our cornfields, and eat up our little children!” Such specters were “ludicrous in the extreme.” Others repeated Grayson’s contentions even more forcefully, often combined with sneering attacks on the writers of The Federalist.

Alexander Hamilton, among others, rejected Grayson’s dismissal of the danger. In essay No. 6 of The Federalist, he asserted that immediate national interests, including economic advantage, are more likely to precipitate war than more general and remote objects, such as justice or dominion. He asked rhetorically,

“Have republics in practice been less addicted to war than monarchies?…Are not popular assemblies frequently subject to the impulses of rage , resentment, jealousy, avarice, and of other irregular and violent propensities?…Has commerce hitherto done any thing more than change the objects of war? Is not the love of wealth as domineering and enterprising a passion as that of power and glory? Have there not been as many wars founded upon commercial motives, since that has become the prevailing system of nations, as were before occasioned by the cupidity of territory or dominion?”

It was as to these questions that Hamilton invoked the guide of experience for answers.

That experience he found in the history of Sparta, Athens, Rome, and Carthage. All of them he classified as republics, the last two as commercial republics. He detailed the numerous ruinous wars in which they engaged. Moving forward in time, he then indicted the commercial republic of Venice for its wars in Italy and the 17th-century commercial Dutch Republic for its wars with England and France. Britain came in for scorn as particularly bellicose for commercial advantage. Worse yet, Hamilton charged, the king was at times dragged into wars he did not want, by “the cries of the nation and importunities of their representatives,” so that there have been “almost as many popular as royal wars.” He singled out wars for commercial advantage between Britain and France and Britain and Spain. One of those wars between Britain and France overthrew a network of alliances which had been made two decades earlier. He acidly asked, “Is it not time to awake from the deceitful dream of a golden age, and to adopt as a practical maxim for the direction of our political conduct, that we, as well as the other inhabitants of the globe, are yet remote from the happy empire of perfect wisdom and perfect virtue?”

In addition to commercial incentives for war, Hamilton pointed to personal motives of rulers and other prominent individuals, or to intrigues hatched by influential advisers, as prompting wars between republics. Thus he blamed the Peloponnesian War, so disastrous to Athens, on the personal motives of the great statesman Pericles. England’s ill-advised war with France Hamilton assigned to the machinations of Henry VIII’s chief minister, Cardinal Wolsey, and his pursuit of political influence.

Whatever the merits of Hamilton’s predictably slanted analysis of specific historical events, his message was that political theory disproved by experience is not a sound basis for public policy. A more recent scenario which fit his skepticism about pacific republics was the Great War from 1914 to 1918, which led to the collapse of the 19th-century European political order and to revolutionary political and social change. The antagonists were the Central Powers of Germany, Austria-Hungary, and Ottoman Turkey against the Triple Entente of Britain, France, and Russia. The latter group was eventually joined by Italy, Japan, and the United States. Of the major participants, Germany, Britain, France, and the United States were commercial and industrial powerhouses. They were also outright republics or had sufficient political power vested in parliamentary bodies to qualify as quasi-republican constitutional monarchies. Each also had substantial overseas territories, Britain by far the most. Of the rest, Russia and Japan were rising industrial and commercial nations. In particular, Germany and Britain had considerable commercial interaction, but it likely was exactly that commercial and colonial competition which the British saw as a threat. The prewar German naval buildup did nothing to calm British nerves.

There was also a complicated system of alliances which emerged shortly before the war. This reshuffling of international arrangements changed the dynamics of the relatively stable post-Napoleonic international order in Europe which had even survived disruptive processes of unification in Germany and Italy and disunion in the old Austrian Empire. True, there had been revolutionary tremors and limited wars, such as between Prussia and Denmark, and Prussia and Austria, and the Franco-Prussian War of 1870-71. Skillful diplomacy, in particular by the German Chancellor Otto von Bismarck, had prevented any conflict of an existential nature from arising. Bismarck had isolated France after 1871 through alliances with Russia, Austria-Hungary, and Italy, first through the Three Emperors’ League, and then through the Triple Alliance of 1882 and the Reinsurance Treaty of 1887. Relations with Britain were preserved through family relationships and Britain’s preoccupation with her empire overseas. He had also smoothed frictions between the rival empires, Russia and Austria-Hungary, through the Congress of Berlin in 1878, and among various colonial powers through a conference in the same city in 1884.

Even after Bismarck was forced out of office, it appeared that strengthened international legal norms would prevent wars. International arbitrations settled disputes. Two Hague Conventions, the London Naval Conference of 1909, and the London Conference of 1912 convinced “the right kinds” of Europeans that large-scale war was anachronistic. The foreign offices of the various governments, staffed with forward-looking and educated internationalists, surely would extend the great-power stability of the 19th century’s Concert of Europe. Ignored was that these multinational conferences and conventions left some number of participants dissatisfied and nursing grudges. This was particularly true for the Balkan countries. While trying to establish their independence from the crumbling Ottoman Empire, they warred with the Turks, the Austro-Hungarians, and each other and resented their fates being controlled by larger powers. Over time, these perceived affronts to national honor during a time of heightened national consciousness overrode the rational self-interest served by commercial considerations. Moreover, various treaties and diplomatic agreements overlapped and indeed conflicted with each other. Alliances increasingly shifted around, which begot international uncertainty during an age of domestic demographic changes, increasing political militancy, and unequal industrial and technological prowess.

This new system of alliances had another potentially destabilizing element. It allowed the relatively weaker participants to act like big players on the international stage, counting on their more powerful allies to back them up. Instead, the bravado and exaggerated sense of national honor of less important states dragged the major powers into a disastrous conflict. Everything changed when a Bosnian Serb nationalist, supported by secret nationalist societies and Serbian military intelligence, assassinated the reform-minded presumptive heir to the Austrian throne, Archduke Franz Ferdinand, and his wife in Sarajevo, Bosnia, on June 28, 1914.

After some delay, during which it was hoped that the assassination might become just another deplorable act that would result in an appropriate punishment for the captured perpetrators, the Austrians responded. Having received some halting assurances from the German government that they would back Austria-Hungary’s response to Serbia, the Austrians sent an ultimatum to the Serbs. Serbia only partially accepted the Austrian demands, mobilized its army, and briefly sent troops into Austro-Hungarian territory. In quick response, Austria began partial mobilization of its army and, on July 28, 1914, declared war on Serbia.

At this stage, the conflict might yet have become another limited skirmish. But the Russian government, some of whose ministers had been informed of the plot ahead of time and whose military intelligence likely helped the plotters, had promised the Serbs that Russia would come to Serbia’s aid against any attack by Austria-Hungary. When Austria-Hungary began partial mobilization, Russia within two days ordered full mobilization of its forces. Fearing the large number of Russian troops, Austria-Hungary in turn mobilized fully. Germany, coming to her ally’s assistance, did likewise on July 31, 1914. At the same time, Germany issued a demand of neutrality to Russia. When Russia failed to acquiesce, a state of war existed on August 1. France, pursuant to a treaty with Russia from 1892, had rejected German demands for neutrality and had ordered a general mobilization the previous day. On August 3, 1914, Germany declared war on France. Britain, pursuant to her treaty obligations to France under the Triple Entente of 1907, declared war on Germany on August 5, 1914, after the latter ignored Britain’s demands for withdrawal from occupied Belgium. Italy, as was her wont during 20th-century wars, initially refused to stand by her treaty obligations to Germany and Austria-Hungary and eventually switched sides to the Entente.

The war took on a dynamic of its own. Occasional peace feelers went nowhere, in part because of objections by military leaders. There was, however, another equally significant hurdle, namely, political opposition based on the respective publics’ sentiments that their sacrifices demanded something more than a muddled armistice. It must be remembered that the war initially was very popular and welcomed with an almost giddy celebration of patriotic zeal by the citizenry of the combatants. Hamilton’s observation about monarchs having “continued wars, contrary to their inclinations, and sometimes contrary to the real interests of the state” due to public pressure, was being realized.

The Great War, infelicitously dubbed “the war to end all wars,” ended in the collapse of the Ottoman, Russian, German, and Austro-Hungarian monarchies. It also severely damaged the British and French empires around the world. The revolutionary chaos it unleashed and the national resentments its end ignited soon produced totalitarian movements and another world war. The tens of millions killed in those wars and the even higher number murdered by those ideological totalitarian regimes during the 20th century are a grisly monument to man’s potential to do evil, often cheerfully. The war should have put paid to the conceit that the world of human self-interest and passion can be readily subordinated to a legal artifice designed by a cadre of internationalists. Such idealism sounds marvelous in a university faculty lounge or in a graduate seminar in international relations, but, as Margaret Thatcher observed, “The facts of life are conservative.”

As fundamental challenges to the post-World War II United States-led international order have arisen over the past two decades, much debate has erupted over what system will replace it. The current conflict in Europe has once again tested the notion that commercial relations will make war obsolete. Russia has been dissuaded neither by Western economic pressures and commercial ostracism nor the military aid by NATO to Ukraine from taking a course of action which her government and people see, rightly or wrongly, as important to their national identity. One hopes that these broader fundamental geopolitical changes, such as the apparent emergence of a multi-polar international order, do not lead to the type of destruction World War I caused a century ago. But such hopes must rest on diplomacy based on experience, not on smug nostrums about pacific republics or the bonds of commerce.

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.

 

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John Adams, author of “A Defence of the Constitutions of Government of the United States of America” and principal drafter, Massachusetts Constitution of 1780.


“Virtue” and “republic” have long been connected to each other among philosophers of politics. The connection was frequently asserted in the rhetoric of Americans during the founding. Indeed, it was while states were writing constitutions that these ideas were more rigorously investigated and an increasingly sophisticated understanding emerged. The most widely read source on the experiences of republics and the importance of virtue was Plutarch’s Lives, which contained the biographies of Greek and Roman statesmen. Many intellectuals also read primary sources, such as Aristotle, Cicero, and Polybius, and interpreters of those sources, such as Machiavelli, Montesquieu, and various 18th century English political essayists. These investigations led to a political conundrum. Most Americans believed that mankind’s actions were driven by base desires, such as avarice, gluttony, and lust. Yet the success of republics had always been said to rest on public virtue, the requirement that the rulers and the people overcome their passion for personal gratification and act for the benefit of the community, “res publica.” Moreover, the wisdom received from ancient writers postulated that public virtue was derived from private virtue. The task became to reconcile this tension between private passions and republican virtue.

Three ideological theories of republicanism emerged, with attendant differences in their conceptions of private and public virtue and the connection between them. These three conceptualizations had significant geographic roots. One was an American version of classic republicanism, which might be called puritan republicanism. It is “positive” republicanism. The proponents looked to the firm hand of government to promote both aspects of virtue, private and public, and to insure their continued interrelation. It was founded in the religious tradition and political experience of New England communities, although its influence was not confined there. One of the best exponents of that tradition and its republican significance was John Adams.

Another was agrarian republicanism, which coalesced somewhat later, and was rooted in the experience of the South, especially its largest and wealthiest state, Virginia. Agrarian republicans also accepted the need rigorously to inculcate private virtue, but they were less optimistic about the conviction that private virtue assured public virtue. At the very least, they were skeptical that sufficient public virtue might be realized among those who would gain political influence. That skepticism was particularly acute when the matter became who would control the distant general government and thus be most removed from effective supervision by the people.

Best, then, not to rely on virtue among the rulers, but to look for other means to limit their ability to cause harm to the republic. If private virtue of the ruler or the people was inadequate to assure public virtue, the rulers’ self-interest must be channeled to serve the public good. James Madison worked out these ideas in his constitutional ideology, which found its way into basic structures in the United States Constitution. Madison was not alone, and he was not the most rigorous expositor of agrarian republicanism. That title goes to John Taylor of Caroline.

A third approach was national republicanism, represented by Alexander Hamilton as its most prominent ideological proponent and George Washington as its leading public figure. In many ways their views complemented those of the agrarians that private virtue was a necessary but also a regrettably flawed guardian of the success of republics. However, there was a crucial difference. Government would have a much more active role in using incentives to create conditions through which republican virtue of the public sort might be fostered. Moreover, republican virtue was not limited to those connected to the land, but extended to those engaged in commercial and even manufacturing enterprises. Hamilton, after all, was not part of the landed gentry, like Adams, or the Southern planter class, like Taylor. National republicanism was based in the emerging commercial centers, especially those of the mid-Atlantic states.

John Adams’s major work on constitutional government and republicanism was A Defence of the Constitutions of Government of the United States of America, a treatise on the emerging American constitutionalism with its emphasis on checks and balances of governmental powers. But Adams was also a prolific writer of letters to numerous correspondents. Many years before he wrote in his 1798 response to the Massachusetts militia, “Our government was made only for a moral and religious people,” he wrote to the chronicler of the period Mercy Otis Warren that republican government could survive only if the people were conditioned “by pure Religion or Austere Morals. Public Virtue cannot exist in a Nation without private, and public Virtue is the only Foundation of Republics.” Sounding the theme of positive classic republicanism, he continued, “There must be a positive Passion for the public good, the public Interest, Honor, Power, and Glory, established in the Minds of the People, or there can be no Republican Government, nor any real liberty.” [Emphasis in the original.]

In light of man’s fallen nature and his helpless soul’s inclination to sin, a firm hand was needed. Hence, three New England states had an official church, the Congregational Church, heir to the Puritans. Moreover, a Stoic virtue of private simplicity and public duty was cultivated, not the least by intrusive sumptuary laws. Such laws, passed in the name of protecting the people’s morals and sometimes dressed up in broader cloaks of liberty and equality, restricted various luxuries and excessive expenditures on jewelry, clothing, victuals, and entertainment. Adams, in his 1776 book Thoughts on Government, touted the benefits of such laws, “[The] happiness of the people might be greatly promoted by them….Frugality is a great revenue, besides curing us of vanities, levities, and fopperies, which are real antidotes to all great, manly, and warlike virtues.”

The historian Forrest McDonald, in his invaluable book Novus Ordo Seclorum, provides details about the constitutional and statutory sources of such laws. For example, Article XVIII of the Massachusetts Bill of Rights urged a “constant adherence” to “piety, justice, moderation, temperance, industry and frugality [which] are absolutely necessary to preserve the advantages of liberty.” Legislators and magistrates must exercise “an exact and constant observance” of those principles “in the formation and execution of the laws.” None other than John Adams had drafted that document in the Massachusetts convention. Other states had similar provisions. At the Philadelphia Convention, George Mason of Virginia sought to grant Congress the power to enact sumptuary laws, but his proposal was defeated.

Adams also lauded laws that resulted in the division of landed estates, because he perceived such laws as promoting relative equality of property ownership. Adams termed it the “mediocrity of property” on which liberty depended. This sentiment, drawn from an ancient republican pedigree, put him in good company with American republicans of other stripes. Indeed, “agrarian republicans” were, if anything, even more militant than Adams in their adoration of land ownership as the bulwark of republican virtue and personal liberty. Thomas Jefferson spoke for most Americans in his 1785 book Notes on the State of Virginia, when he declared that “those who labor in the earth are the chosen people of God if ever He had a chosen people, in whose breasts He has made His peculiar deposit for substantial and genuine virtue.” He expressed similar views in other writings. During the debate over the subsequent Louisiana Purchase during his administration, Jefferson was able to overcome his constitutional qualms with the satisfaction that the United States had acquired sufficient land to guarantee its existence as a republic of yeoman farmers and artisans for many generations hence.

As a theorist of agrarian republicanism, Jefferson was thin gruel compared to John Taylor, a Virginian planter, lawyer, and politician, who served off-and-on as Senator. To distinguish his branch of the family, Taylor is usually referred to by his birthplace, Caroline County. The aphorism “That government is best which governs least,” has often been attributed to Jefferson, although it appears first in Civil Disobedience by Henry David Thoreau in 1849. If, however, one might at least grant Jefferson the same sentiment, this aphorism even better describes Taylor’s philosophy. In particular, his 1814 book An Inquiry into the Principles and Policy of the Government of the United States sets out a systematic philosophy for land as the basis for personal happiness and republican vitality. Land gives its owners sustenance and trains them to self-reliance, which produces independence, which, in turn, is the source of liberty. A key to maintaining that independence is the right to keep arms.

The (mostly) Southern agrarian republicans shared with their (mostly) New England classic republican compatriots a belief that widely-shared land ownership is most conducive to private virtue. However, they parted ways on the connection between private and public virtue as crucial to the survival of republican government. Taylor wrote, “The more a nation depends for its liberty on the qualities of individuals, the less likely it is to retain it. By expecting publick good from private virtue, we expose ourselves to publick evils from private vices.” While a republican system, as a whole, is strongest when it rests on a broad base of a virtuous and civically militant citizenry, it is risky to rely only on that condition to produce virtuous politicians. Homo politicus is better known for seeking power for personal gain and influence over others than for personal sacrifice and care for the general welfare. As described by the modern school of “public choice” theory, politicians are self-interested actors, whose actions are best explained by their number one goal, to get re-elected. In addition, the puritan approach of an intrusive government which would police private behaviors raised red flags for the agrarians.

Taylor and other agrarians distrusted government generally, but the more removed from direct and frequent popular control officials were, the greater the danger to the republican form. The good news was that sufficient public virtue could be produced even if, for whatever reason, private virtue was lacking in those who would govern. To that end, it became incumbent on those who framed constitutions to recognize the inherently self-interested nature of politicians and to harness that self-interest through constitutional structures which would simultaneously authorize and limit the power of government officials of all types. Politicians would “do the right thing” not because they were sufficiently trained to private virtue, but because it would serve their own self-interest in preserving their positions.

Taylor’s prescription was not novel. The Scottish philosopher David Hume began his 1742 essay, “Of the Independency of Parliament,” by declaring, “Political writers have established it as a maxim that, in contriving any system of government and fixing the several checks and controls of the constitution, every man ought to be supposed a knave and to have no other end, in all his actions, than private interest. By this interest we must govern him and, by means of it, make him, notwithstanding his insatiable avarice and ambition, cooperate to public good.” The works of the charismatic and often controversial Hume were well known to educated Americans.

James Madison expressed these sentiments in a famous passage in Number 51 of The Federalist:

Ambition must be made to counteract ambition. The interest of the man must be

connected to the constitutional rights of the place…. In framing a government

which is to be administered by men over men, the great difficulty lies in this:

you must first enable the government to control the governed; and in the next

place oblige it to control itself. A dependence on the people is, no doubt, the

primary control on the government; but experience has taught mankind the

necessity of auxiliary precautions.

Those “auxiliary precautions” were the structural checks and balances in the Constitution.

Various historians have noted the importance of Taylor’s contributions to American political theory, even lauding him as in some ways the best which America has produced. Although his vision was republican, it may better be characterized as a branch of classical liberalism or liberal republicanism. Note that the term “liberal” does not have the current political connotation. Unlike today’s version, the classic liberalism emerging during that period was directly tied to the individual’s liberty to live free from state-enforced mandates beyond the minimum needed for social stability.

Taylor was not the first skeptic about the classic Aristotelian and Ciceronian connection between private and public virtue reborn in the puritan republicanism of John Adams. The history of 18th-century Anglo-American ideas reveals influential predecessors, such as Bernard de Mandeville and, as mentioned earlier, David Hume. Mandeville wrote his satirical Fable of the Bees in 1705, a famous parody of English politics of the time. In the poem, he describes a thriving colony of bees, where each individual bee seeks to live a life of luxury and ease, a sentiment not disagreeable to Taylor’s Southern planter class. But this prosperous existence comes to an end when some of the bees begin to denounce the personal corruption caused by luxury and to call for a life of simplicity and virtue to be imposed. Many bees die, their hive becomes impoverished, and they live in a hollow tree, “blest with Content and Honesty.” He concludes,

Bare Virtue can’t make Nations live,

In Splendor; they, that would revive

A Golden Age, must be as free,

For Acorns, as for Honesty.

In short, personal vices, such as greed and ambition, generate public virtue of industriousness and prosperity. Similar ideas also infused the writings of an important contemporary of the American founders, the political economist Adam Smith.

Even more than Taylor, it was the adherents of an emerging “national republicanism” who agreed with Mandeville, Hume, and Smith. Although all persons are driven by their passions, not all passions are the same. Some, especially those who already have material riches, might be gripped by a simple desire for fame or honor, or by love of country. Moreover, a properly constructed constitution, produced by those few motivated by such nobler passions, might harness the baser passions of lesser politicians towards the public good. The men who met in Philadelphia for the specific purpose of drafting the Constitution might qualify as men whose primary, if not sole, passions were fame and love of country. For most, no immediate financial gain or personal political success was to be gained. Indeed, contrary to the progressive theory advanced in the early 20th century by the historian Charles Beard that economic self-interest was the driving force behind the Constitution’s adoption, it is well-established that delegates voted in favor of proposals which would, if anything, hurt their financial interests.

Such “good” passions, although they manifested a self-interest, also produced the public virtue necessary for republican government. It produced policies for the general welfare and in the interest of the public. The problem, of course, is that all politicians—and, indeed, bureaucrats of all kinds—routinely claim to be driven by a passion for public service, and that their policy proposals are in the public interest. A multitude of unelected non-governmental organizations and litigious law firms also claim the title “public interest.” Alas, to consider, for instance, who benefits from pay-outs in the typical class-action lawsuit, the reality rarely matches the professed public virtue. One never hears a politician say that a policy, no matter how nefarious and self-rewarding, is done for anything other than the noblest public purpose. Rare even is a politician as honest as the 19th-century New York Tammany Hall leader George Washington Plunkitt. He famously distinguished between “dishonest” and “honest” graft and was frank about his practice of the latter. Dishonest graft meant working solely for one’s own interests. Honest graft was to work for one’s own wealth, while simultaneously furthering the interests of one’s party and state.

The big problem, then, for the national republicans was to constrain those politicians who would in fact hold political offices for a longer time and with less-defined objectives than those who drafted the Constitution. George Washington had long and carefully cultivated the public image of the man driven solely by a passion for honor. Whatever his motives in his private actions, such as, for example, acquiring huge tracts of land, Washington in his public life appears to have been driven by his concern about the public’s perception of him as a man of honor. Forrest McDonald and numerous other historians have painted the picture of a man who might be said to have “staged” his public life. Washington was deeply affected throughout his life by Joseph Addison’s play Cato about the Roman republican statesman Marcus Porcius Cato (“the Younger”). Cato, a committed Stoic, was famous for his unrelenting honesty.

But Washington was a rare specimen of homo politicus. The national republicans’ plan for more run-of-the-mill politicians was similar to that of the agrarians, to rely on one measure of citizen virtue and another measure of constitutional structure to produce public virtue from politicians driven by private passions. Unlike the agrarians, they were convinced that a strong national government must be a part of that structure. On that point Hamilton and at least the 1787 version of Madison could agree. Hamilton and the national republicans parted ways with Madison, and with Jefferson and the more resolute agrarian republicans such as Taylor, by enthusiastically embracing the role of manufacturing and banking in promoting public virtue.

Jefferson’s ideal republic of yeoman farmers and artisans, comprising a large middle class possessed of a rough equality of means, had little room for manufacturers, and none for bankers and other jobbers dealing in phantom “wealth.” Manufacturing, when combined with commerce, the fear went, would necessarily soon lead to two anti-republican results. One was a love for material luxury; the other was a life of drudgery for the impoverished masses. The history of the ancient Roman Republic was a vivid cautionary tale. Taylor and the agrarians accepted the benefit of commerce within their preferred system of political economy, because it facilitated the export of products from the agricultural South and the importation of manufactured goods from abroad. But, in a preview of the South Carolina Nullification Crisis of the 1820s and ‘30s, this required free trade. Like most Southerners, Taylor was a committed free trader and suspicious of any national government regulation of economic matters, especially tariffs.

The agrarians’ fear of manufacturing tied into a general belief among political writers going back to antiquity that political systems evolve and, ultimately, decay. Entropy is inevitable in politics as much as physics. Agriculture may be the most desirable occupation, but, sooner or later, the limited productive land area is fully occupied, as New England was discovering. People would flock to cities where manufacturing would become their occupation. As Adam Smith described the effect on people, “the man whose whole life is spent in performing a few simple operations, of which the effects are, perhaps, always the same … generally becomes as stupid and ignorant as it is possible for a human creature to become ….” This fate stood in sharp contrast to that of the farmer, artisan, and merchant, who must possess broad knowledge and understanding of many activities. If this process was inexorable and made those human brutes unfit to practice private virtues, it also made the demise of the republic inevitable. Even Benjamin Franklin believed in the dangers from this progression, which puts his remark to his interlocutor, “A republic, madam, if you can keep it,” in yet another light. It also explains the urgency which Jefferson and other agrarian republicans felt about the westward expansion of territory and the opening of western land to agricultural settlement needed to forestall this threat to republican governance.

At the conclusion of the passage quoted above, Adam Smith extended a saving hand. After all, he was not opposed to either manufacturing or banking as sources of wealth. The evils of a poor and brutish urban working class would happen, “unless the government takes some pains to prevent it.” Smith had his views of what that might be. In any event, Hamilton, as an enthusiastic believer in Smith’s ideas, agreed that wealth was not fixed, and that even a personal profit motive can contribute to the public welfare. Investing in new processes and useful products and services is a public benefit. Thus, actions of the manufacturer and even the banker exemplify public virtue, whether or not they are driven by self-interest. He, like Adam Smith, believed that private wealth-producing activities qualified as private virtue. While others might not go that far, Hamilton successfully advocated the connection between such activity and the public virtue needed to maintain republican government.

Having established that manufacturing and banking could be “virtuous” in the public sense, there remained the need to foster them in order to ameliorate the conditions of poverty which would threaten republican government. After all, if enough wealth is created for all, “poverty” ceases to be objective and becomes relative. A rising tide floats all ships. At least from a material standpoint, owning a car and various electric and electronic devices today, living in an abode with air conditioning, and having clean water, basic sustenance and medical care, are vastly better than the experiences of past generations.

Hamilton and his supporters believed that their strong national government was the best mechanism to adopt policies which would foster the growth of wealth. Hamilton’s later program in his four reports to Congress between 1790 and 1795 on the public debt, a national bank, and manufactures, laid out in considerable detail his plans to that end. These sophisticated reports were a monument to Hamilton’s intellect and experience applied to the economic problems of the early United States.  They had such potency, and were so hotly contested, that they precipitated the First American Party System of Federalists and Jeffersonian Democratic-Republicans and made Hamilton in effect the dominant figure of American politics in the 1790s.

It should be noted in conclusion that all republicans—classic puritan, agrarian, and national—opposed democracy. Even those delegates and political leaders who at one point had been most favorable towards broad public participation and involvement in politics, were shaken by Shays’ Rebellion in Massachusetts. That event in 1786 had created much tumult and political chaos and was put down by an army raised by the state. It was very much on the minds of the attendees at the Philadelphia convention. Some of the most vociferous detractors of the Constitution as insufficiently “republican” were also the harshest critics of democracy. For them, Shays’ Rebellion exposed the danger of relying on private virtue to provide the public virtue necessary for republican self-government. James Madison spoke for them all when he opined in Number 10 of The Federalist about the inadequacy of democracies to promote public virtue:

[Such] democracies have ever been spectacles of turbulence and contention; have

ever been found incompatible with personal security, or the rights of property;

and have, in general, been as short in their lives, as they have been violent in their

deaths. Theoretic politicians, who have patronised this species of government,

have erroneously supposed, that, by reducing mankind to a perfect equality in

their political rights, they would, at the same time, be perfectly equalized and

assimilated in their possessions, their opinions, and their passions.

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.

 

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Guest Essayist: Joerg Knipprath


During the Middle Ages, a distinct separation of church and state existed, at least in theory. The pope in Rome and his bishops and priests throughout Western Christendom took care to protect the souls of the people. The emperors, kings, and other secular nobles protected the physical safety of their subjects. The subjects would “repay to Caesar what belongs to Caesar and to God what belongs to God.”

In fact, matters were more ambiguous, because popes frequently called on secular rulers for protection, and the latter looked to the former to confirm the legitimacy of their rule in the eyes of God and their subjects. Moreover, the ecclesiastical rulers, including the pope, also exercised sovereign political control in various territories and sat in the political councils of others. The emperors and other nobles, in turn, frequently sought to control the appointment of ecclesiastical officials within their domains and, in the case of the king of France, to control the selection of the pope himself.

With the split in Western Christendom caused by the Reformation, and the emerging concentration of power in single political rulers in national kingdoms and lesser principalities, two significant changes occurred from the medieval order. Those changes are important for understanding what led to the Mayflower Compact.

First, in the struggle over who had supreme authority in the physical world, emperors or popes, kings or bishops, the balance shifted decisively in favor of the secular rulers. A secular ruler might become the head of a religious establishment, as happened in England beginning with Henry VIII. Less drastically, the ruler might ally with the bishops to control the authority of the pope in matters temporal or secular, as happened to the Church in France. Or, under the doctrine of cuius regio, eius religio (“whose realm, their religion”), the religion practiced by the prince became that of his subjects. The last was the situation in most German states after the Peace of Augsburg in 1555 ended the initial wave of religious wars between Lutherans and Catholics.

The second change was the renunciation among a number of Protestant dissenters of the episcopal structure of the Catholic, Anglican, and Lutheran churches. Whatever might have been the dissatisfaction of Anglican and Lutheran theologians with Catholic doctrine, practices, and administration, the dissenters viewed those established Protestants as merely paler imitations of the Church of Rome. Building on the teachings of the lawyer John Calvin in Geneva, they emphasized salvation through faith alone and living in a community of the faithful governed by themselves or by some elected elders.

In Scotland, these dissenters formed the Presbyterian Church. In England, the Calvinist dissenters became the “Puritans.” They sought to purify the Church of England from various Catholic practices and doctrines while continuing to associate their congregations with the official church. Their goals seemed within reach after the English Civil Wars in the 1640s. They were well represented in the Rump Parliament and among the military leaders, such as Oliver Cromwell and John Lambert. The Anglican majority proved too immovable, however, and, after the Restoration, many Puritan leaders left England. Another group, however, believed that the Anglican Church was hopelessly corrupt, and that the only available path to personal salvation was through separation. This group has become known as the “Pilgrim Fathers,” although they referred to themselves by other names, such as “Saints.”

Both groups of English dissenters established settlements in New England not far apart. Their theological differences, however, kept them separated for decades. Not until 1690 was the Pilgrims’ Plymouth colony absorbed by the much larger Massachusetts Bay Colony.

The two groups shared certain characteristics, which contributed to the development of American constitutional theory. It is part of American mythology that Europeans came to English North America in search of religious freedom, which they joyfully and readily extended to all who joined them. The matter is much more nuanced. While such toleration might well describe the Quaker colony of Pennsylvania and the Catholic colony of Maryland, both of which were formed later, the Pilgrims and Puritans had a different goal. Theirs was to establish their respective visions of a Christian commonwealth, the City of God in the New World. Having left England for a wilderness because of despair over the allegedly corrupt nature of the Anglican Church, never mind the Catholic one, neither group was inclined now to welcome adherents of such beliefs to live among them. Religious freedom, indeed, but for individuals of like beliefs in a community gathered together for mutual assistance in living life according to those beliefs. Conformity in community, not diversity of doctrine, was the goal. God’s revealed law controlled, and governance was put in the hands of those who could be trusted to govern in accordance with that law.

The two groups also shared another characteristic, alluded to above: voluntary community. The individual alone could find salvation through studying and following the Bible. As an inherently social creature, he could, of course, join with others in a community of believers. The basis of that community would be consent, individual will, not an ecclesiastical order based on apostolic succession. Some years after arriving in the New World, the Massachusetts Bay Puritans in the Cambridge Platform of 1648 declared that “a company of professed believers ecclesiastically confederate” is a church, with or without officers. This was the origin of the Congregational Church, founded on a clear separation from all forms of hierarchical church government.

The congregation would govern itself according to the dictates of its members’ consciences and the word of God, while in the secular realm it would be governed under man’s law. What would happen, if man’s law, and the teachings of the established church, conflicted with the word of God, as the believers understood it? What if, to resolve such conflicts, that religious community left the existing secular realm? A political commonwealth of some sort is inevitable, as most political theorists claim. That is where the experience of the Puritans and the Pilgrim separatists differed.

The Puritans formed their Massachusetts Bay Colony on the same basis as the Virginia Company had been formed to settle at Jamestown two decades earlier. It was a joint stock company, somewhat analogous to a modern business corporation, formed by investors in England. The company’s charter provided a plan of government, which included meetings of a General Court composed of the freemen of the Company. The charter failed to specify where these meetings were to occur. English custom was that such shareholder meetings took place where the charter was kept. Some historians have written that the charter was surreptitiously taken from the company’s offices and spirited to the New World, thereby making Boston the site of the General Court. That is a suitably romantic story of intrigue and adventure, indeed. More prosaic is that the change in locale occurred through the Cambridge Agreement of 1629 between the Company’s majority, composed of its members seeking to establish a religious community in Massachusetts, and the minority which was interested in the possibilities of commerce and profit. The majority was permitted to take the charter and thereby secure a de facto independence from English authorities for a half-century. The minority received certain trade monopolies with the colony.

The formation of the Massachusetts Bay Colony, like the Virginia Colony’s, was based on voluntary association and contract. Once the mercantile interest of the English investors was severed, the charter provided a political constitution for the colony’s governance. But the political consequence was the by-product of a commercial enterprise. The best example of an organic constitution created by consent of a community’s members for the express purpose of self-government was the Mayflower Compact concluded almost ten years earlier.

After vigorous attempts at suppression of them by King James I for their separatist beliefs, many Pilgrims fled to the religiously more tolerant United Provinces of the Netherlands. Eventually, however, English pressure on the Dutch induced the Pilgrims to leave their temporary domicile in Leyden. Having procured a ship and picked up additional travelers in England and a license from the Virginia Company to settle on its land, a group of Pilgrims embarked on their journey westward to their future Zion.

Upon reaching the New World in late November, 1620, at what today is Provincetown, Massachusetts, they discovered to their dismay that they had arrived a few hundred miles north of the Virginia Company’s boundary. Many of the 101 passengers aboard their small ship, the Mayflower, were ill, supplies were dwindling, and bad weather loomed. The group eventually decided to land on the inhospitable coast, rather than continue to sail to their allotted land. Before they did so, however, 41 men signed the Mayflower Compact on November 21, 1620, under the new calendar. It must be noted that fewer than half of the men were Pilgrims. Many were “adventurers,” a term of art which referred to individuals sent over by the Company of Merchant Adventurers to assist the colony, tradesmen and men such as the military leader, Myles Standish. The Company had lent money to the settlers. Repayment of those loans depended on the colony’s success.

Not having the luxury of a drawn-out convention meeting under agreeable conditions, the settlers made the Mayflower Compact brief and to the point, but also rudimentary. In significant part, it declared, “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 ….” Framing “just and equal laws, ordinances, acts, constitutions, and officers, … as shall be thought most meet and convenient for the general good of the colony …,” was left to another day.

The Mayflower Compact is a political application of the voluntary consent basis of religious congregation which the Pilgrims accepted. There was renewed interest in social contract theory as the ethical basis of the state, as an alternative to the medieval theory of a hierarchical political order created by God. Both approaches, it must be noted, were also used by defenders of royal absolutism in the 17th century. Bishop Robert Filmer in his Patriarcha adapted Aristotle’s connection between the family and the state as social institutions and Cicero’s correlation of monarchy and the Roman paterfamilias, to present the monarch as having whatever power he deems needed to promote the public welfare. To give his contention a more appealing, religious basis, Filmer wrote that God gave Adam absolute control over the family in Genesis, thereafter to the three sons of Noah, and finally, as the nations grew, to monarchs.

Thomas Hobbes used contract theory in his work Leviathan to justify royal absolutism. Humans seeks to escape the abysmal state of nature, where life is “solitary, poor, nasty, brutish, and short,” because a state of war exists of all against all. To gain physical and psychological peace, the desperate people enter into a covenant with a powerful ruler. In return for the ruler’s protection and a life of security, they agree to surrender whatever rights they may have had in the state of nature as the ruler deems it necessary. One exception is the right to life.

One might view the Mayflower Compact as an iteration of the Hobbesian covenant. Indeed, the early governance of the colony at times seemed like a military regime, an understandable state of affairs considering the existential danger in which the residents found themselves over the first few years. Alternatively, one might consider the arrangement as simply a settlement within the existing English state, like any town in England. After all, the Pilgrims expressly avowed themselves to be “the loyal subjects of our dread sovereign Lord, King James,” declared that their voyage, in part, was for the “honour of our King and country,” and noted that they were signing during “the reign of our sovereign Lord, King James.”

One might, however, view the Mayflower Compact as a glimpse into the future, to the work of the social contract theorist John Locke a half-century later. The Pilgrims had removed themselves from an existing commonwealth whose laws they found oppressive. Their persecution over their religious faith was a profound breach of the Lockean social contract under which government was created as a useful tool better to protect a person’s personal security and estate. One remedy for such a breach was to leave political society. For Hobbes, this would have been impossible, because it would have placed the individual back in the intolerable state of nature. For Locke, however, the state of nature of human society was not as forbidding. Locke had more of that Whig confidence in man’s goodness. Government was just a way to deal with various inefficiencies of the state of nature in promoting human flourishing, rather than a Hobbesian precondition to such flourishing.

Solitary contemplation and Bible study allowed one to recognize the glory of God and to deepen one’s Christian faith, a journey made more joyful by joining a religious congregation of believers. In similar manner, joining together in a “civil body politick” as set forth in the Mayflower Compact aided in achieving those objectives. Dealing efficiently with quotidian matters of the physical world permitted more contemplation of the spiritual. Happily also, despite all the challenges the New World presented, it had sufficient bounty to give sustenance to the saints in the new Zion, to “lead the New Testament life, yet make a living,” as the historian Samuel Eliot Morison summarized it.

The singular importance of the Mayflower Compact was in the foundation it provided for a theory of organic generation of a government legitimized by the consent of the governed. Self-government became realized through a contract among and for those to be governed. Later American constitutional theories about the people as the source of legitimacy for government had to deal with the practical difficulty of having many thousands of people in each of the already existing political arrangements called “states.” American writers sought to get around that difficulty by having state conventions rather than ordinary legislatures approve the Constitution, a logically rather precarious substitution. Still, the Mayflower Compact set a readily understood paradigm.

A more troubling lesson drawn from the New England colonies, is to recognize the unsettling connection between seeking religious freedom for oneself and prohibiting the same for others. It requires confronting the tension between community and individuality, law and liberty. The right to associate must include the right not to associate. The right to worship in association with other believers must include the right to reject non-believers. To what extent might the rights of the majority to create their “civil body politick” as an embodiment of their City of God on Earth override the rights of others in that community to seek a different religious objective, or no religious objective at all? Massachusetts Bay provided one answer. New settlers were limited to those who belonged to their approved strain of Puritanism. 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 Pilgrims at Plymouth were more accommodating to others, if grudgingly so, because their original settlers had included a substantial number unaffiliated with their iteration of Christianity.

The framers of American constitutions had to face those issues, and tried to balance these interests through concepts such as free exercise of religion, establishment of religion, and secular government. The problem is that such terms are shapeshifters which allow users to project diverse meanings onto them. These difficulties have not disappeared.

Both the organic creative aspect of the Mayflower Compact and its theocratic imperative were found in other constitutional arrangements in New England. 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 colonies of Providence and Portsmouth in today’s Rhode Island, established in the 1630s, had similar founding charters as the Mayflower Compact, because they, too, were formed in the wilderness. A distinctive aspect of those colonies was that they were founded by Puritan dissenters, Roger Williams and Anne Hutchinson, respectively, who had been expelled from Massachusetts Bay. Shaped by their founders’ experiences, these colonies allowed freedom of conscience and did not establish an official religion in the manner of other New England settlements.

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.

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Guest Essayist: Joerg Knipprath


There have been few times as crucial to the development of English constitutional practice as the 17th century. The period began with absolute monarchs ruling by the grace of God and ended with a new model of a constitutional monarchy under law created by Parliament. That story was well known to the Americans of the founding period.

The destructive civil wars between the houses of York and Lancaster, known as the War of the Roses, ended with the seizure of the throne by Henry VII of the Welsh house of Tudor in 1485. The shifting fortunes in those wars had shattered many prominent noble families. Over the ensuing century, the Tudor monarchs, most prominently Henry VIII and Elizabeth I, consolidated royal power. Potential rivals, such as the nobility and the religious leaders, were neutralized by property seizures, executions, and dependence on the monarch’s patronage and purse for status and livelihood. Economic and social change in the direction of a modern commercial nation-state and away from a feudal society where wealth and status were based on rights in land had already begun before those wars. This change was due to financial necessities and a nascent sense of nationalism arising from the Hundred Years’ War between the English Plantagenet kings and the French house of Valois. Under the Tudors, England’s transition to a distinctly modern polity with a clear national identity was completed.

When Elizabeth died childless, the Tudor line came to an end, and the throne went to James VI Stuart of Scotland, who became James I of England, styling himself for the first time, “King of Great Britain.” On the whole, James was a capable and serious monarch but had strong views about his role as king. His pugnaciousness brought him into conflict with an increasingly assertive Parliament and its allies among the magistrates, especially his Attorney General and Chief Justice, Sir Edward Coke. The need for revenues to pay off massive debts incurred by Elizabeth’s war with Spain was the catalyst for the friction. James was well educated in classic humanities and had a moderate literary talent. He wrote poetry and various treatises. He also oversaw the production of the new English translation of the Bible. As a side note, I have found it amusing that, 400 years ago, James warned about the dangers of tobacco use.

It was James’s political writing, however, which irked Parliament. He was a skillful defender of royal prerogative and seemed to derive satisfaction from lecturing his opponents in that body about the inadequacies in their arguments. James was able to navigate relations with Parliament successfully on the whole, mostly by just refusing to call them into session. But his defense and exercise of his prerogatives, his claim to rule as monarch by the grace of God, and his pedantic and irritating manner, coupled with the restlessness of Parliament after more than a century of strong monarchs, set the stage for confrontation once James departed this mortal coil.

Parliamentary authority had accreted over the centuries through a process best described as punctuated equilibrium, to borrow from evolutionary biology. Anglo-Saxon versions of assemblies of noble advisors to the king existed before the Norman Conquest, in accordance with the customs of other Germanic peoples. William the Conqueror similarly established a council of great secular and ecclesiastical nobles of the realm, whom kings might summon if they needed advice or political support before issuing laws or assessing taxes. This rudimentary consultative role was expanded when the council of English barons gathered at Runnymede in 1215 and forced King John to agree to a Magna Carta. A significant provision of that charter required the king to obtain the consent of his royal council for any new taxes except those connected to his existing feudal prerogatives. This was a major step in developing a legislative power which future parliaments guarded jealously.

In 1295, Edward I summoned his Great Council in what the 19th-century English historian Frederic William Maitland called the Model Parliament because of the precedent it set. This Great Council included not just 49 high nobles, but also 292 representatives from the community at large, later referred to as the “Commons,” composed of knights of the shire and burgesses from the towns. Edward formalized what had been the practice off and on for several decades at that point. Another constitutional innovation was Edward’s formal call for his subjects to submit petitions to this body to redress grievances they might have. This remains a vital constitutional right of the people in England and the United States.

The division of the Great Council into two chambers occurred in 1351, with the high nobility meeting in what later came to be known as the House of Lords and the knights and burgesses meeting in the House of Commons. Within the next few decades, parliaments increasingly insisted that they controlled not just taxation, but also the other side of the power over the purse, expenditures. They faced some hurdles, however. Parliaments had no right to meet, and kings might fail to summon such a gathering for years. Also, these bodies were in no sense democratic. The Lords were a numerically small elite. Due to property restrictions, the Commons, too, represented a thin layer of land-owning gentry and wealthy merchants. The degree to which bold claims of parliamentary power succeeded depended primarily on the political skill of the monarch. Strong monarchs, such as most of the Tudors, could either decline to call parliament into session or push needed authorization through dint of their standing among powerful and respected members of those bodies. A politically adept king could secure those relationships through a judicious use of his patronage to appoint favorites to offices.

During the rule of James I, parliamentary opponents of the king increasingly expressed their displeasure through petitions to redress grievances. English parliaments also manipulated the process as a tool of political power against the king. While those petitions might in fact come directly from disgruntled constituents, they were often contrived by members of Parliament using constituents as straw men to initiate debate in a way which suggested popular opposition to the monarch on a matter. These were political theater, albeit sometimes politically effective. Even if such a petition were granted by Parliament when in session, relief would have to come through the king or his officials, an unlikely result.

After the death of James I, relations between king and Parliament deteriorated further under his son. More affable than his father, Charles I was also less politically astute. As adamant as his father had been about protection of royal prerogative, Charles made too many political missteps, such as arresting members of Parliament who opposed various policies. Much of his political trouble arose from England’s precarious financial situation, partly due to misbegotten and unpopular military campaigns precipitated by Charles’s foreign minister, the Duke of Buckingham. When Parliament proved uncooperative, he attempted to finance these ventures and various household expenses through technically legal, but constitutionally controversial, workarounds.

One constitutional theory held that taxes, especially direct taxes on wealth or persons, were not part of the king’s prerogative. Rather, such taxes were “gifts” from the people. As with other gifts, the king might ask but could not compel. The people could refuse. It was impractical to ask each person. Instead, the Commons collectively could vote to grant such a gift to the king. The king had the prerogative, however, to enforce feudal obligations, collect fees, or sell property to raise funds. When Parliament in 1626 refused to vote taxes to pay for the military expeditions, Charles instead imposed “forced loans” on various individuals. Although such loans were deemed legal by the courts, this constitutional legerdemain was exceedingly unpopular and failed to produce significant income. Worse for the king, Parliament adopted the Petition of Right in 1628, which, in part, reaffirmed Parliament’s sole power of taxation. Charles at first agreed, but soon reneged. He dismissed Parliament and reasserted his power at least to collect customs duties. The Petition would prove to be significant eventually for another reason, because it also asserted certain rights which the king could not invade.

Charles then ruled without Parliament. To pay for his expenses, he resorted to various arcane levies, fees, fines, rent assessments, and sales of monopoly licenses. Still, he ran out of funds by 1640. Needing money for a military campaign against the Scots, he called Parliament into session. The first session proved unproductive, but he summoned another Parliament, which met in various forms for most of the next twenty years and became known collectively as the Long Parliament. Friction between Charles and Parliament led to civil war, a military coup by General Oliver Cromwell and other officers of the New Model Army, the trial of Charles by a “Rump Parliament” purged of his supporters by the Puritan military, and the regicide in 1649.

Following the execution of Charles, the Rump Parliament abolished the monarchy and proclaimed England to be a “Commonwealth.” Deep political divisions remained. If anything, executing who historians consider one of the most popular English kings undermined the legitimacy of the Commonwealth with the people. Cromwell finally dismissed the Rump Parliament forcibly in 1653, after scorning them with the splendidly pungent “In the name of God, go!” speech the likes of which would not be heard today.

The Protectorate established later that year did not smooth relations between Parliament and Cromwell. In essence, this was a military dictatorship, and even the absence of royalists in the Commons and the interim abolition of the House of Lords did not prevent opposition to him. The two Protectorate Parliaments also were dissolved by Cromwell when they proved insufficiently cooperative, especially in matters of taxation, and too radically republican for Cromwell’s taste, having dared to challenge the Lord Protector’s control over the military.

Although the Protectorate’s military government was an aberration in English history, it produced some notable constitutional developments. The Instrument of Government of 1653 and the Humble Petition and Advice of 1657 collectively are the closest England has come to a formal written constitution. They created a structure of checks and balances which captured the trend of the English system from an absolutist royal rule to a limited “constitutional” monarchy. Although these two documents eventually were jettisoned by the “Cavalier Parliament” after the Restoration, they became a model for resolution of a subsequent constitutional crisis.

The Instrument provided the basic structure of government for the Protectorate. It was drafted by the radical republican Puritan General John Lambert and adopted by the Army Council of Officers in 1653. It was based on proposals which had been offered in 1647 to settle the constitutional crisis with Charles I, but which the king had rejected. The Instrument set up a division of power among the Lord Protector, a Council of State, and a Parliament that was to meet at least every three years. The last had the sole power to tax and to pass laws. The Protector had a qualified veto over the Parliament’s bills. However, he had an absolute veto over laws which he deemed contrary to the instrument itself. Moreover, Parliament could not amend the Instrument. Although these provisions put Cromwell in the position of final authority over this “constitution,” the proposition that Parliament was limited by a higher law contradicted principles of Parliamentary supremacy. It anticipated the later American conception of the relationship between a constitution and ordinary legislative bodies. The Humble Petition and Advice was adopted by Parliament in 1657. It proposed some amendments to the Instrument, among them making Cromwell “king” and creating the “Other House,” a second chamber of Parliament, composed of life-term peers. Cromwell rejected the first and accepted the second.

After Cromwell’s death in 1658, and the resignation of his son Richard as Lord Protector the following year, the Protectorate ended. This created a political vacuum and a danger of anarchy. In the end, one of Cromwell’s trusted leaders, General George Monck, led elements of the New Model Army to London to oversee the election of a new “Convention Parliament.” Though Monck had been personally loyal to both Cromwells, he was also a moderate Royalist. The new Parliament technically was not committed either to the Commonwealth or the monarchy. However, it was controlled by a Royalist majority, and popular sentiment was greatly in favor of abolishing the military government and restoring the monarchy. Monck sent a secret message to Charles II for the prince to issue a declaration of lenity and religious toleration. After Charles complied, Parliament invited him to return as king.

Although the new king also fervently believed in his divine right to rule and proceeded to undo the Protectorate’s laws and decrees through his friends in Parliament—which again included the restored House of Lords—he was savvy enough not to stir up the hornet’s nest of Stuart absolutism too vigorously. A period of relative constitutional calm ensued, although Whig exponents of radical theories of popular sovereignty and revolution could still find their works used against them as evidence of treason and plotting.

Upon Charles’s death in 1685, the crown went to his brother, James II, an enthusiastic convert to Catholicism. When he and his wife, Mary of Modena, had a son in 1688, it presented the clear possibility of a Catholic dynasty, a scenario which repelled the Anglican hierarchy. Even more objectionable were James’s exertions at blunting the Test Acts and other laws which discriminated against Catholics and Protestant dissenters from the established Anglican Church. The main tool was his dispensing power, a prerogative power to excuse conformance to a law. But, at the likely instigation of the Quaker, William Penn, he also issued his Declaration for Liberty of Conscience in 1687, a major step towards freedom of worship. The Declaration suspended penal laws which required conformity to the Anglican Church.

James’s Anglican political supporters began to distance themselves from him, and seven Protestant nobles invited the Stadholder of the United Netherlands, William of Orange, to bring an army to England. The Glorious Revolution had begun. James initially planned to fight the Dutch invasion, but lost his nerve and tried to flee to France. He was captured and placed under the guard of the Dutch. William saw no upside to having to oversee the fate of James, who was his uncle and father-in-law. To rid himself of this annoyance, he let James escape to France.

With James gone, William refused the English crown unless it was offered to him by Parliament. At the behest of a hastily gathered assembly of peers and selected commoners, William summoned a “Convention Parliament.” The throne was declared vacant due to James’s abdication. The Convention Parliament drafted and adopted the Declaration of Right. The following day, February 13, 1689, they offered the crown to William and Mary together as King and Queen, with William alone to have the regal power during his life. After accepting the crown, William dismissed the Convention Parliament and summoned it to reconvene as a traditional parliament.

The Convention Parliament was another milestone in the development of Anglo-American constitutional theory and built on the earlier Protectorate’s Instrument of Government. The process instantiated the radical idea that forming a government is different than passing legislation, in that the former is, in the later phrasing of George Washington, “an explicit and authentic act of the people.” The opponents of the Stuarts had long claimed that all power was derived originally from the people. However, parliaments had challenged the king’s supremacy with the claim that they represented the estates of nobles and commons, and that the people had vested all constitutive power in them. But, if the people were truly the ultimate source of governmental legitimacy, how could they permanently surrender that to another body? This debate was carried on among the Whig republican thinkers of the era, such as the radical Algernon Sidney and the moderate John Locke. It raised knotty and uncomfortable issues about revolution. Those very problems would occupy Americans for several decades from the 1760s on in the drive toward independence and the subsequent process of creating a government.

There was no concrete condition that William and Mary accept the Declaration, but the crown was offered on the assumption that the monarch would rule according to law. That law included the provisions of the Declaration, once the reconvened parliament passed it as the Bill of Rights in December, 1689. Until then, the Declaration had no force of law, not having been adopted by Parliament as a legislative body and not having received the Royal Assent. This has been the process of the unwritten English constitution. As with the various versions of the Magna Carta and other famous charters and proclamations, an act of Parliament is required to make even such fundamental arrangements of governance legally binding. The English Bill of Rights is, mostly, still a part of that unwritten constitution, although some provisions have been changed by subsequent enactments.

The English Bill of Rights built on the Petition of Right to Charles I in 1628 and the Habeas Corpus Act of 1679 in expressly guaranteeing certain rights. Among them were protections to petition for redress of grievances, to have arms for self-defense for Protestants, against cruel and unusual punishments or excessive bail or fines, and for trial by jury. Moreover, it protected members of Parliament from prosecution for any speech or debate made in that body. Many of these same protections appeared in American colonial charters, early American state constitutions, the petitions of state conventions ratifying the Constitution, and the American Bill of Rights. At first glance, the failure to protect religious liberty seems to be a glaring omission. However, anti-Catholic feelings ran high, and, contrary to James II, the Anglican majority was not in the mood for religious tolerance. As to Protestant Nonconformists, their religious liberty was recognized in the Toleration Act of 1689.

The Bill of Rights also made it clear that the monarch holds the crown under the laws of the realm, thereby rejecting the Tudor and Stuart claims of ruling by divine grace. This postulate was a crucial step in the evolution towards a “constitutional” monarchy. Following the approach of the Protectorate’s Instrument of Government, the Bill of Rights provided that laws must be passed by Parliament, although the monarch had an unqualified power to withhold consent. One must note, however, that this veto power has not been exercised since 1708 by Queen Anne. An attempt to do so by a British monarch today might trigger a constitutional crisis.

As a reaction against the perceived Catholic sympathies of the Stuarts and, in James II’s case, his actual Catholicism, the Bill of Rights very carefully designated the line of succession if, as happened, William and Mary died childless. That line of succession was limited to what were traditional Protestant families. To make the point clearer, the Bill of Rights defiantly debarred anyone who “is … reconciled to, or shall hold communion with, the see or church of Rome, or shall profess the popish religion, or shall marry a papist …” from the throne. The last prohibition likely was due to the habit of the Stuart kings to marry devout Catholic princesses, and an understandable concern over the influence that such a spouse might have in spiritual matters. On that point, too, the English experience affected later American developments, with the protection of religious freedom in the Bill of Rights and the prohibition of religious test oaths in the Constitution.

In addition to the importance of these historical antecedents to American constitutional development, the English Civil War and the Glorious Revolution demonstrate an uncomfortable truth. When the ordinary means of resolving fundamental matters of governance prove unavailing, those matters will be resolved by violence. Constitutional means work during times of relative normalcy, but on occasion the contentions are infused with contradictions too profound for compromise. It is an axiom of politics that politicians will seek first to protect their privileges and second to expand them. The increased demands by parliamentarians for political power inevitably clashed with the monarchs’ hereditary claims. Both sides appealed to traditional English constitutional custom for legitimacy. With their assumptions about the source of political authority utterly at odds, compromise became increasingly complex and fleeting. It was treating a gangrenous infection with a band-aid. Radical surgery became the way out. The American Revolution in the following century, and even the American Civil War of the century thereafter, showed evidence of a similar progression, with the two sides operating from fundamentally contradictory views of the nature of representative government and proper division of power between the general government and its constituent parts.

The Glorious Revolution resolved the contest over these conflicting views of legitimate authority and the proper constitutional order between king and Parliament. The earlier Commonwealth with its Protectorate was an abortive step in the same direction. It failed due to the political shortcomings of the military leaders in control. Although further adjustments would be made to the relationship between monarch and parliaments, the basic constitutional order of a limited monarchy reigning within a political structure of Parliamentary supremacy was set. The new constitutional arrangement became a model for political writers of the 18th century, such as the Baron de Montesquieu. American propagandists of the revolutionary period readily found fault with the British system. Once they turned to forming governments, however, Americans more dispassionately studied and learned from the mother country’s rocky path to a more balanced and “republican” government in the 17th century. Both sides in the debate over the Constitution regularly used the British system as a source of support for their position or to attack their opponents.

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.

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Guest Essayist: Joerg Knipprath


Two noted maxims of Roman constitutional law contained in the code of Justinian’s 6th century Corpus Juris were, “What pleases the prince is law,” and, “The prince is not bound by the law.” These are classic expressions of sovereignty. They locate the ultimate power and authority to make and enforce law in one identifiable person. They reflect the full imperium of the Roman emperor and create a contrast with the earlier Roman republic, when a similarly complete dominance was exercised only outside the city, by proconsuls in the provinces.

Yet there was another maxim in the Corpus, “What touches all must be consented to by all.” This suggests that the ultimate authority rests not in the governor, but in the governed. In the Roman republic, actions were taken in the name of the Senate and People of Rome. That idea was symbolized by the SPQR (Senatus Populusque Romanus) which was prominently displayed even on the standards of the imperial Roman legions. There is an obvious tension between these maxims. One might locate in that tension the beginning in Western political thought of the lengthy and ongoing debate over the nature of sovereignty.

One of the most influential expositors of the concept was the 16th century French jurist Jean Bodin. In his Six Livres de la République (Six Books of the Commonwealth), published in 1576, Bodin defines sovereignty as the power to make law. Political society, like other human organizations, is hierarchical. Someone must make the rules. Thus, sovereignty must exist as a precondition for a state. Sovereignty, Bodin insists, must be indivisible. And it must be ultimate and absolute. While his preferred sovereign is a monarch, that is not requisite. As a student of the classics, he asserts that all political constitutions are monarchic, aristocratic, or democratic. As a man of the Renaissance, he believes in scientific epistemology. But, before one can effectively study a country’s laws, one must know the source of those laws, which is in one identifiable man or body of men.

The appeal of such a theory to a strong ruler is clear, and there were few rulers of the early modern period as absolute in power and self-assured of his sovereignty as Louis XIV of France. The “Sun King” ruled from 1643 to 1715, said to be the longest recorded of any monarch in history, although during his minority France was governed under the regency of his mother, Queen Anne. He took over sole rule in 1661, after the death of his chief minister, the political and diplomatic virtuoso Cardinal Mazarin who had been the de facto ruler of France for a couple of decades. Louis’s famous dictum, “L’état, c’est moi” (“I am the State”), may well be apocryphal, but it summarizes his view of government.

Louis certainly was not alone in that regard. The Early Modern Period saw the rise of the nation-state and, as an essential component, the absolute monarch ruling by divine right. By the reasoning of various defenders of the new order, an absolute monarch as sovereign was as natural as the rule by the paterfamilias over the family and the rule of the pope over the community of believers. While Martin Luther and other early Protestant leaders might challenge the second analogy, they had no problem with the bigger point. On its way out was the old divided feudal structure, based on personal covenants of fealty, with power divided between popes and emperors, emperors and nobles, and nobles and freeholders. The conflict between King John and the nobles at Runnymede, which culminated in the Magna Carta of 1215, was an anachronism. More representative of the new order of things was King Henry VIII’s campaign of arrest and execution of English noblemen and seizure of noble estates. In similar manner, the walk by Emperor Henry IV over the wintry Alps in 1077 to Canossa to beg forgiveness from Pope Gregory VII and have his excommunication lifted, would be seen as rather odd. Instead, there was that same King Henry VIII first making himself head of the Catholic Church in England and, soon thereafter, head of the new Church of England.

Historians have speculated about the many possible causes of the rise of the modern nation-state. It is difficult to pinpoint any one cause, or even to distinguish between causes and symptoms. Was it the increased sophistication of weaponry and the changed structure of military operations, which eroded the relative equality of power among various nobles because of the greater expense of the new technologies and the larger armies drawn from commoners? Was it the growing influence of commerce due initially to the greater affluence and stability of society in the 12th and 13th centuries and then, ironically, to the economic recovery in the 15th century after the prior century’s population collapse from pestilence and famine due to the colder climate of the Little Ice Age? Was it the result of the decimation of the nobility due to the many wars among nobles, such as that between the House of York and the House of Lancaster in the English War of the Roses in the 15th century? Was it the European expansion and exploration in the Age of Discovery, enabled by European technological superiority, the expense of which could only be undertaken by comparatively large states and which, in turn, brought great wealth to their rulers? Was it simply, as Niccolo Machiavelli might declare, due to Fortuna and the virtu of dynamic statesmen with which a particular political entity was favored?

Whatever the reason, every ruler, it seemed, wanted to be what Louis XIV became. Timing was not uniform. England under the Tudors became the domain of an absolute monarch a few generations before France did, but also lost that status well before France did. The German princes operated on a smaller scale and were well behind France in their pretensions to absolute rule; indeed, the Holy Roman Empire never coalesced into a nation-state. But the common thread for these rulers, other than in various city states and in a few oddities such as the Holy Roman Empire, the Swiss Confederacy, and the United Provinces of the Netherlands, was that they claimed to exercise full sovereignty in fact.

The existence of the aforementioned oddities presented a problem for theorists such as Bodin. The confederated natures of such realms and their distributions of power among various political organs vexed him. His solution was simple. He either just assigned such divided governments to a pure system or declared them not to be true states. Thus, he characterized the intricate constitution of the Roman Republic as a democracy. The Holy Roman Empire, with its imperium in imperio, that is, a purported dual sovereignty, was not really a state, but a chimera of one.

Along with Bodin, another influential author of the doctrine of sovereignty was the 17th-century English philosopher Thomas Hobbes, whose major work on the topic was Leviathan. As Bodin had done, Hobbes declares sovereignty to be indivisible and absolute. But Hobbes goes further. His approach is more pragmatic and more rigorous than Bodin’s. Hobbes analyzes sovereignty less in terms of authority to make law, but rather in the ruler’s power to coerce others. That is the essence of the old Roman imperium, to command. For Hobbes, the sovereign’s legitimacy arises from the consent of the governed rooted in the social contract. That contract results from the human psychological need for peace. Mankind’s desire for survival impels humans to escape the brutal Hobbesian state of nature with its war of all against all. Human nature is both rational and self-interested. Hence, humans seek the safety of the political commonwealth and the strength of its organized coercive power.

Hobbes’s view of the relationship between subject and ruler is best described as covenantal, and his reference to an Old Testament creature is not coincidental. There is no equality of bargaining and equality of relationship as in a typical contract. The subject agrees to obey unconditionally, and the ruler provides protection and peace. To do that, the ruler must have unquestioned power to bend all persons and all institutions to his rule. The sovereign can act in accordance with established law or contrary to it. Church-state divisions are no longer an issue. The secular sovereign controls the ecclesiastical bodies, as Henry VIII controlled the church. It need hardly be added that a divided state or a system of distributed powers would be an abomination for Hobbes, as it would undermine the commonwealth’s stability and raise the likelihood of a return to the state of nature.

The Bodinian and Hobbesian approbation of undivided sovereignty in an absolute ruler sits rather ill at ease with certain assumptions about the American system. The drafters of the United States Constitution deliberately sought to create a system of balanced powers divided between the general government and the states and among several branches of the general government. The supporters of the Constitution frequently discussed the division between the general government and the states in terms of sovereignty, particularly the residual sovereignty of the states, in their efforts to assuage the concerns and blunt the criticisms of their opponents during the ratification debates. James Madison and others even argued that the Constitution was in many ways just a novel and workable modification of the confederal structure of the Articles of Confederation.

The Anti-federalists were not persuaded and, like Bodin and Hobbes, insisted that sovereignty was indivisible and that, within a union, imperium in imperio was impossible. Either the states were the sovereigns, as under the Articles of Confederation, or the general government was. While the framers may have attempted to “split the atom of sovereignty,” in the vivid words of Justice Anthony Kennedy, the effort was bound to fail. Either the states would control the general government or the latter would control the former. For the Anti-federalists, the teleological direction of the Constitution was clear: The general government would inevitably diminish the states to mere administrative appendages and become a tyranny.

This controversy over the nature of sovereignty in the Constitution has continued. Is there, indeed, an identifiable sovereign at all under the Constitution, with the split in authority among the legislative, executive, and judicial branches, as well as between the House of Representatives and the Senate? This does not even consider the role of what is, in the evaluation of some, the true sovereign: the wholly extraconstitutional vast bureaucracy with its essentially unreviewable combined rule-making and rule-enforcing power.

That question also leads to another controversy. To counteract the criticism that the Constitution was a path to oligarchic rule at best, and outright dictatorship at worst, the Constitution’s supporters made frequent references to the power of the people to participate in various political processes. In similar manner, there arose the claim that, in the United States, unlike even in Britain, “the people are sovereign.” In 1776, George Mason asserted in the Virginia Declaration of Rights, “That all power is vested in, and consequently derived from, the People; …” Although he also expressed caution about this principle, James Madison in Number 49 of The Federalist accepted Thomas Jefferson’s dictum that, “the people are the only legitimate fountain of power,” and acknowledged that, at least, in certain unexplained extraordinary matters, the people should decide directly.

But how do “the people” exercise indivisible and ultimate authority and power? Leave aside various inconvenient facts, such as the usual exclusion of large groups of “the people” from the political system, the often low fraction of eligible voters who actually participate, the ability of unelected bureaucracies or courts to frustrate the political decisions reached, and the dubious premise that “the people” have acted when the vote is, say, 51% in favor and 49% opposed. As the experience of ancient Athens and Rome shows, it is not possible for “the people” to gather in one place. As an interesting side note, modern technology makes such an event less implausible, but even with the capacities of a premium Zoom version, it might be difficult to get a couple of hundred million of “the people” to participate in policy-making. It is a far cry from an 18th-century New England town meeting, and even there, a majority assumes a power over a minority.

Moreover, aside from the Constitution’s optimistic reference to “We, the people of the United States,” every part of that document is about entities other than the people making laws and coercing individuals to obey those laws. Indeed, “the people” did not adopt the Constitution. Nor can they amend it. Technically, there is not even a guaranteed right in the document for “the people” to vote, as the states control the qualifications for voting in the first instance. True, here or there across the American constitutional landscape, one might spot an exemplar of popular sovereignty. Some states provide for direct participation by voting on ballot initiatives and referenda to make law, and there remain in some localities the afore-mentioned town meetings. One might even point to jury nullification as another example. But all of these are well outside the norm.

This dissonance between declarations of popular sovereignty and the reality of governments nevertheless has led some writers to try to reconcile them. Jean-Jacques Rousseau asserted that the people cannot act individually to legislate. Instead, their particular interests are collectivized and transformed rather mystically into the community’s “general will.” For Rousseau, the community is an actual, albeit incorporeal, entity with a will. That general will is expressed in laws through some legislative body. This seems to be a well-perfumed version of the Roman empire’s old constitutional sleight of hand that the people are the ultimate source of political authority but have ceded their sovereignty to the emperor.

Rather than resolve these tensions, one might distinguish between “theoretical sovereignty” and “practical sovereignty.” In a system whose claimed legitimacy is based on consent of the governed and which purports to base the legitimacy of its actions on some degree of popular participation, one might indeed posit a theoretical grounding on “the people” as the unlimited sovereign. The then-future Supreme Court justice James Wilson, a prominent lawyer and intellectual who signed the Declaration of Independence and the Constitution, wrote in his law lectures that a constitution originates from the authority of the people. “In their hands, it is as clay in the hands of the potter: they have the right to mould, to preserve, to improve, to refine, and to finish it as they please.” But that is not how government operates in practice. It is certainly not how the Constitution was adopted and how it has actually been amended.

Just as the high-minded assertion in the Declaration of Independence that “All men are created equal” states a Christian view of us all as God’s children or perhaps a still-aspirational secular equality before the law, “popular sovereignty” or “consent of the people” is a useful philosophic device to communicate the difference between a government and a bandit. It establishes a conceptual basis, perhaps a noble lie, for political obligation, that is, why one is obligated to obey the commands and coercions of the former, but not the latter.

The more difficult and practically relevant investigation is where in our constitutional system does the practical sovereignty lie. Who really governs, makes the rules, and coerces obedience? There indeed is no clear Bodinian sovereign in the Constitution’s formal dispersal of power. Despite Alexander Hamilton’s expansive views of executive power in The Federalist and his subsequent Pacificus letters, the President’s constitutional powers fall well short of a monarch’s, as Hamilton wrote, as well. Even Louis XIV, despite his pretensions, found out that his word was not everyone’s command. He did ultimately acknowledge on his deathbed, “I depart, but the State shall always remain.”

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.

 

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Among the common definitions one finds for “Machiavellian” are “unscrupulous,” “cunning,” “deceitful,” and “duplicitous,” words associated with disreputable character. The namesake for these malignant traits is Niccolo Machiavelli, a Florentine diplomat who lived from 1469 to 1527. He was a scion of an ancient Florentine family. His father, a lawyer, provided him with a classic education. That learning shows in Machiavelli’s various books about political science, warcraft, and history. In addition, Machiavelli wrote numerous letters and shorter essays and a satirical play, Mandragola, which was immensely popular at the time. Whether or not he intended it as such, this play has been described as an allegory about political events in 16th century Italy, a bawdy dramatization of the advice Machiavelli gave to the Medici family in his notorious work, The Prince (De Principatibus or Il Principe).

Machiavelli and his family were firmly associated with the republican factions in Florence. Through that connection, he held diplomatic offices in service to his city, traveling extensively to political centers and royal courts in Italy and the rest of Europe. In this capacity, he met a number of rulers, including the charismatic Cesare Borgia, after which the protagonist in The Prince is supposedly styled. With the return to power of the anti-republican faction of the Medicis in 1512, Machiavelli’s political fortune cratered. The following year, he was accused of plotting against the regime, arrested, imprisoned, and tortured.

It has long been claimed that he wrote The Prince while in prison as a testimony that he was loyal to the regime and, indeed, should be permitted to serve in the new government. The fawning dedication to Lorenzo de Medici, Duke of Urbino, that Machiavelli wrote in the preface of the book lends credence to that claim. Whether or not Lorenzo or any other member of the family ever read the book, Machiavelli’s hope for a further diplomatic career remained unfulfilled. He retired to a life of contemplation and writing.

Around 1517, he wrote his other famous work on politics, The Discourses on the First Ten Books of Titus Livy, wherein he examined the politics of the early Roman Republic. From Rome he sought to learn the necessary conditions for a successful republic, an aspiration for his own city’s future. Although there are common threads, such as the judicious use of violence when needed to maintain the government, The Prince is different in tone and goal than The Discourses. This has led to much speculation about Machiavelli. Was he the amoral cynic who scorned Christian ethics, which the former book displays? Or was he the admirer of republican Rome, who emphasized the need for constant “rebirth” to maintain that best of all systems? In the latter work, he is alarmed that corruption of republican character will destroy the republic, unless something spurs its rebirth, preferably from reforms within the republic itself. John Adams, writing a quarter-millennium later in A Defence of the Constitutions of Government of the United States of America, agreed. But that is not The Prince.

In short, one must look at The Prince on its own terms. Readers then and since have been shocked—or piously professed to be shocked—by its content and tone. But why? The book makes no claim to promote virtue, either in the classic or Christian sense. He does not disparage Christianity or challenge Christian virtue in this or any other of his works. As one commentator has noted, “What should not be assumed is that whatever Machiavelli thinks about things in general is necessarily ‘Machiavellian.’ His view of politics is, but it simply does not follow that his view of everything is ‘Machiavellian.’” The Prince purports to deal with the world as it is, not as philosophy or religion would like it to be. It followed a long literary tradition called “the mirror of princes,” books whose lessons instructed future rulers about “proper” governance. It should come as no surprise that such instructions during the Middle Ages came with a heavy dose of Christian ethics to civilize the prince and habituate him to just and temperate rule. After all, as Thomas Aquinas noted, God gave the ruler care of the community for the general welfare, not a license to exploit the people for the ruler’s own benefit.

Machiavelli builds on that literary tradition but uproots it from its philosophical grounding. He tosses aside the Aristotelian conjoining of ethics and politics, the classic assumption that what defines a good person also defines a good ruler, where the private virtue is elevated to the public. It is an abandonment of the scholasticism of the High Middle Ages and its synthesis of philosophy and religion, of which Thomas was a prominent expounder. The Prince warns the ruler that, to be successful in politics, assume the worst of everyone, whereas the classical version of politics as ethics writ large held that a few people are virtuous, more are evil, and the great majority are in-between. It was for the last group that habituation to ethical behavior might move the needle.

Machiavelli is not interested in saving the prince’s soul, but in having him survive, a matter of particularly acute relevance in the chaotic and often murderous factional politics of the Italian states. He does not hold up his examples as paragons of morality, and his praise of virtu means a prince’s skill at the craft of statesmanship, not the ideal character of a Christian nobleman or the pursuit of personal excellence by a Roman Stoic sage. His advice is specific and based on assumptions about how human beings consistently respond to certain events and actions. These assumptions are drawn from hard-nosed examination of human behavior and contemporary events. Machiavelli engages in empirical psychology, no less valid because his analysis often also draws from historical sources made familiar through his classical education. Like the image of Janus, the Roman two-faced god of transitions, Machiavelli and his contemporaries looked ahead to a more secular world revealed through humanistic tools of discovery but still could not avert their gaze from the medieval world receding behind them.

The Prince is divided into several sections and chapters, dealing with the particular conditions of various principalities. There are secular and ecclesiastical princes.. Among the secular are those who became rulers by conquest, by criminal acts, or by acclaim of the people. Just as all cars might have certain similar requirements for maintenance, yet need different manuals to address their particular components, so does the governance of people in different polities.

Starting with commonalities, there are certain common sense postulates derived from experience. It is better to be feared than loved by the people. He acknowledges that it is best to be both respected and loved by the people. A ruler who is loved is likely to return that love and act magnanimously and govern moderately. But love is unsteady. In human relations, lovers betray each other constantly, through deceit or worse. That behavior is the theme of much literature, dramatic as well as comedic, including Machiavelli’s own Mandragola. At the impersonal level of a state, love becomes even less stable, which Machiavelli’s own fate in a city riven with factionalism demonstrated all too well. No politician is loved by everyone and should not even try. Sic transit gloria mundi should be a warning for every politician, as the glory of today becomes the exile, or worse, of tomorrow. Fear, on the other hand, provides a more stable rule, because it always produces the same reaction from people, of obedience and, indeed, respect for the ruler’s decisive leadership.

True, some might feel so much hatred for a strict ruler that it overcomes their fear. Therefore, the ruler must apply the precautionary principle: treat everyone as a potential assassin, more practical advice to survive in 16th century Italian politics. From this, another general rule emerges. Feign affability, but never let down your guard by mistaking your disguise for reality.

Of particular relevance to the Medicis would be the advice for rulers of conquered lands. Upon victory, the new ruler might react in an understandable human way and be indiscriminately magnanimous to the conquered people. Big mistake. The ruler must put himself in the position of various groups among those people. First, there is the former ruler and his family, around whom those with loyalty to the prior regime might coalesce. To the extent possible, the prior ruler’s family must be exterminated to eliminate this mortal danger to the new prince.

Another group might be those who have invited the prince to invade as a result of factional strife within that domain. This group expects to be rewarded. It is safe to ignore them, as they have no one to support them against the new prince. Their own people consider them traitors, and their very existence depends on the prince’s success. He holds their reins, not they his.

A third group are the sizable portion of the people who have something to lose in wealth or position, but are not among the first two groups. They might be, for example, merchants, artisans, and bureaucrats. The advice: be generous to make them feel connected to him. Kill those with loyalties to the old regime, fine. But get it done quickly, and do it through a subordinate who can then be blamed for having been overly zealous. One might think of King Henry II of England and his cry to the nobles, “Will no one rid me of this meddlesome priest” about killing Thomas Becket, the 12th century Archbishop of Canterbury. Better yet, kill the executioner, for there is no better way of showing that executions are over than hanging the hangman. The conquered people are afraid and cowed, uncertain of what will become of them, their families, and their property. They look for any sign of humanity in the conqueror and want to believe in the ruler’s good will. Such an approach will reassure them that they are safe and will be seen by them as one of generosity. After all, the condemned man is thankful for a pardon, even though it may have been the ruler whose prosecution put the man in the position of needing one. The reader might find it difficult to avoid the sense that this part may have been about Machiavelli and his own family’s situation while he wrote The Prince.

People, by nature, lack gratitude. Over time, the effect of not having been killed or lost their property wears off. Now the prince should reward them, but do so gradually and without raising taxes. The people may see through this, but will respect the prince for his fiscal discipline which has benefited them financially. One other noteworthy point that Machiavelli makes is that this third group of people might accept their conqueror because they blame the prior ruler for their situation. They will believe that the prior ruler lost because of corruption of his moral or political bearings, with the latter due either to the ruler’s laziness in attending public affairs or to a rot of the political structure as a whole. In any case, the prior ruler proved unfit, which makes the new one worthy of respect and fealty.

The last group is the remainder of the population. One option is to rule with perpetual fear and to strangle their livelihoods with taxes to keep them struggling for survival rather than engaging in political scheming. But, sooner or later, the prince will need them as soldiers. It will not do to impoverish the people because, with nothing for them to lose, it will make them unable and unwilling to fight on his behalf.

This broaches the topic of war, one of Machiavelli’s favorites, not coincidentally also a frequent pursuit of the rulers of Italian states during his time. War, he declares, is ubiquitous and inevitable among states. The prince should embrace it, but be smart about how and when to fight. War must deliver benefits for his people, such as tribute or new lands. Internal politics are inevitably connected to foreign policy, an interrelation which a diplomat such as Machiavelli would be sure to emphasize. War also can be a useful distraction from domestic trouble by rallying the people to the prince.

The “how” of fighting the war is of particular significance and requires long-term choices. One might use one’s own forces, those of allies, or mercenaries. While some combination among them, particularly the first two, is possible, he addresses the benefits and drawbacks of each. If one relies on allies, one takes a risk. They may help you and fight with elan. However, they may want a division of the conquered territory. If you refuse, they may turn on you. Therefore, be hesitant about allying with more powerful entities, but at least make sure that there is not one predominant ally among the group.

Mercenaries are always a problem, during war or peace. Perhaps he based this on the experience Italian states had with their frequent use of mercenaries, particularly German and Swiss. He broadened the argument to include professional soldiers in general. They fight for money and often are on retainer during peacetime. Therefore, they want to avoid war and will counsel against or even frustrate the ruler’s political decision about war. If war happens, they feel a certain fraternity with those on the other side. They may know them and even may have fought alongside them in other wars. Mercenaries do not fight vigorously, because the soldier on the other side is “just doing a job,” just as they are. The mercenaries lack the necessary conviction for the cause, because, in the words of one commentator, they “no more hate those they fight than they love those whom they fight for.” Even if they win, they could turn on the prince. At the least, they might raise their fee, a demand it would behoove the prince not to ignore lest the mercenaries act against his interest.

Best, then, to rely on one’s own citizen militia. If there are military reverses, the citizens will fight most vigorously for their hearth and home. If they are victorious, they can be rewarded with a moderate degree of plunder. They might also be useful to colonize the new realm. However, this migration must be undertaken with the long view towards intertwining the conquerors with the original inhabitants. It must not produce a collection of isolated communities of occupiers. Assimilation works best if the conquerors and the conquered share language, religion, and customs. Otherwise, particular care must be taken to be sensitive to deeply-held customs of the conquered people to pacify them. This reflects a practical strategy employed successfully by the ancient Romans as they spread across alien lands.

Machiavelli’s commendation of citizen militias and his distrust of professional soldiers reflects his republican leanings. Such broad-based military service was at the heart of the classic Greek and Roman conception of citizenship. His views became a staple of classic republican argumentation. During the debates over the American Constitution in 1787 and 1788, the Anti-federalists vigorously objected to a standing army as a tool of tyranny that would doom the republic. Hamilton and Madison used several essays in an attempt to blunt those objections.

Another aspect of Machiavelli’s instruction was that the ruler must consider the role of luck in events, particularly in war. He uses Fortuna, the Roman goddess of luck and fate. She is capricious, moody, and willful. She must constantly be courted to keep her on one’s good side. Her capriciousness cannot be tamed, but fortunately, if one may use that word, it may be calmed by the ruler’s virtu. Machiavelli is a Christian, so he does not believe in unalterable fate; man has free will. Moreover, the history of warfare shows not only the influence of luck, but of skill at warcraft, such as when a commander executes a deft maneuver that allows his army to escape a precarious situation. Hence it behooves a ruler to act decisively. Fortuna and virtu, working together, are irresistible.

Unlike the legitimacy a prince has by succession under established constitutional rules, conquest by itself cannot bestow legitimacy on the new prince. Machiavelli’s prince is not Thomas Hobbes’s Leviathan. Machiavelli calls to mind Aristotle’s distinction between king and tyrant. The non-pejorative meaning of “tyrant” was someone who came to power outside the customary process. That said, a consistently “lucky” prince will be seen by the people as beyond ordinary men, which creates legitimacy in their eyes. It is a well-known psychological urge in people to “go with a winner.” One need note only the increased attendance at sporting events in our time when the team is on a winning streak that season. As in the case of the ancient Greek heroes favored by their deities, Fortuna smiles on the prince. The concrete evidence of the prince’s success bestows the legitimacy on him which medieval Christians believed occurred through God’s anointment of kings and emperors. A lot of this may be theater, where elaborate court pomp and ritual provides the stage to make it appear that the prince is powerful and favored by fortune. The medium becomes the message, as the phrasing goes. As in Plato’s parable of the cave, the appearance becomes the reality in the minds of the subjects, a metamorphosis to which citizens of modern republics certainly are not immune, either.

The requirement that a successful prince take account of Fortuna’s fickleness and need for constant attention and courting sounds very much like Plato’s and Polybius’s critiques of the “pure” forms of democracy. For them, the general citizenry was fickle and willful and craved constant flattery from would-be leaders. The extent to which the latter possessed the political virtu to manipulate the citizens would determine how much support such demagogues would get. One also is reminded of Hamilton’s concern in Number 68 of The Federalist that direct election of executives is undesirable, because it rewards men who offer nothing more than their “[t]alents for low intrigue, and the little arts of popularity.”

The Prince has often been compared—unfavorably—to the works of political theorists who followed Machiavelli within a few generations, preeminently Jean Bodin and Thomas Hobbes. The latter, critics have charged, produced much more sophisticated and internally consistent investigations of political systems. Bodin, a French academic and jurist who wrote in the 16th century, analyzed different forms of government and organized them around the concept of sovereignty. Hobbes, an Englishman writing a hundred years later, claimed his work to be a new science of politics. He provided a modern psychological basis for the origin of political society in the rational self-interest of mankind, foremost the desire for personal security and safety. Meeting that primal psychological need established for Hobbes the legitimacy of an absolute ruler such as his Leviathan.

These criticisms miss the purpose of writing The Prince. Like Bodin, Machiavelli favored centralized and effective power through his prince. He hoped for a strong leader to unify Italy, much as Bodin wrote in favor of the French monarchy which had mostly completed the unification of France. Like Hobbes, Machiavelli in The Prince rejects established ethical justifications for a ruler’s legitimacy and justifies a strong and energetic ruler based on that ruler’s success in governing. As was essentially the case for Hobbes, there is no universal moral order of natural law which actually limits the prince’s law-making. To borrow from Justinian’s Code, the prince is the law because there is no earthly sovereign above him. This had also been the position of certain medieval churchmen, especially William of Occam, in regards to the divine realm and God’s omnipotence. Machiavelli and Hobbes secularized those arguments. It is true that The Prince lacks the philosophical wholeness and complexity of other works, but Machiavelli was not aiming for that. His Discourses on Livy comes closer to it. With The Prince, he was writing a practical guide for a successful ruler, a guide drawn from experience and an exemplar of a new science of statecraft.

Machiavelli’s prince did not, then, fail as a political concept. Indeed, Machiavelli’s goal of Italian unification through a dynamic leader, possessed of virtu and smiled upon by Fortuna, was realized, albeit more than three centuries later. Rather, because so much depended on the political skills of each ruler, particular princes failed while others succeeded. This flux destroys the social stability which is needed for productive lives and is traditionally the goal of government. Machiavelli reveals the concurrent strengths and weaknesses of monarchy and other single-executive systems of government. Leaving aside the potential problems of standing armies and heavy taxation discussed earlier, The Prince provides many lessons for us and reveals parallels to how our system functions.

For one, Machiavelli’s methodology is strikingly similar to the approach in The Federalist. Alexander Hamilton declared in Number 6, “Let experience, the least fallible guide of human opinions, be appealed to for an answer to these inquiries.” Use of illustrative historical events and commentaries on human nature based on similar psychological investigations run throughout those essays. One goal of the authors of The Federalist was to explain to their readers how this republican system could be successful as a practical undertaking, regardless of its conformance to some ethical ideal, the virtue—or lack thereof—of its politicians, or the problematic legitimacy of its creation.

Machiavelli also recognized that the fate of the prince and the people ultimately are tied together. The prince’s wise practice of statecraft will bring prosperity, which the citizens will defend vigorously, if needed. This is an eminently pragmatic position, well supported by examining history. As James Madison wrote in Number 40 of The Federalist in response to criticisms that the Philadelphia convention had acted illegitimately and against existing constitutional rules, “[If] they had violated both their powers and their obligations, in proposing a constitution, this ought nevertheless be embraced, if it be calculated to accomplish the views and happiness of the people of America.”

Another lesson is the need to avoid dependence on the particular qualities of one leader. It has long and often been recognized that the Constitution creates a potential for strong executive government. Examples abound, from Alexander Hamilton’s broad claims of implied executive powers in his Pacificus essays from 1793, to Woodrow Wilson’s positively Machiavellian observation in his book Constitutional Government, “If he rightly interpret the national thought and boldly insist upon it, he is irresistible. . . . His office is anything he has the sagacity and force to make it.” Most telling are the numerous claims of far-reaching power to act in emergencies by presidents down to the present, which emergency powers then conjure more emergencies. While the political benefits from energy and decisiveness in the executive were duly noted, the framers of the Constitution intended the system of structural separation of powers to diminish the dangers from concentration of power in a single ruler.

Finally, there was the need to deal with the destructive factional politics that plagued Italian cities during Machiavelli’s time and beyond. The Prince proposes one manner—the charismatic leader whose skill will prevent these factions from entrenching themselves. The Constitution recognizes the problem, but proposes a different solution, to set the factions against themselves in peaceful competition by multiplying their number and diversity so that none become entrenched.

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.

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Historians have usually described the government of the Netherlands in the two centuries between 1579 and the political system’s collapse in the late 18th century as a “republic.” Consistent with his commentary about the government of Venice, James Madison did not approve of this characterization. In Number 20 of The Federalist, he deemed the United Netherlands “a confederacy of republics, or rather of aristocracies, of a very remarkable texture.” While at times complimentary in his assessment, overall he saw in their government further evidence of what ailed, in his view, all confederations, including the United States under the Articles of Confederation.

Like the Articles, the Dutch system was forged in a war for independence, the first goal of which was to survive militarily. The Dutch referred to their Revolt of the Netherlands as the “Eighty Years’ War.” Fighting against Spain began in 1566, the seven northern provinces of the Spanish Netherlands formally united in their common cause through the Union of Utrecht in 1579, a watershed step not unlike the agreements of mutual aid and action among the North American colonies in the years before 1776. The Dutch analogue to the American Declaration of Independence was the Act of Abjuration of 1581 against the king of Spain. There were some truces and cessations of hostilities in subsequent decades, but independence was not officially recognized until the Treaty of Westphalia in 1648 which ended the much broader European conflict known as the Thirty-Years’ War. Still, the Dutch Republic had been functioning as an independent nation long before the status became official.

In the romanticized founding myths of the Dutch, the struggle was about religious toleration and national independence precipitated by an inquisition launched by the Spanish crown in support of the Council of Trent of 1543 and the Catholic Counter-Reformation. That may have been the motivator for some portion of the populace, and the assertion was useful in papering over the tensions which arose among the provinces during the war. The general reality was less lofty and more prosaic.

The Habsburg family ruled the Holy Roman Empire. They had received 17 provinces of the Duchy of Burgundy in 1482, which were allotted to the family’s Spanish branch in 1556. What happened next sounds familiar to the student of American history. The new Spanish king, Philip II, sought to centralize administration over these provinces located some distance from Spain, and to increase the efficiency of tax collecting. This would diminish the power that local bodies had previously exercised under the more hands-off approach of the Burgundians and the Emperor. The commercial towns in the southern provinces and the local nobles viewed this as an attack on their ancient privileges, secular and religious.

With resistance turning into rioting in 1566, the Spanish government sent an army, led by the Duke of Alba. Although a very capable military leader said by some to be one of the greatest of all time, he was a harsh governor, referred to by the Dutch as the “Iron Duke.” His army was generally successful against the rebels, but his policy of mass executions, sackings of towns, and massacres coalesced the population against the Spanish. The rebels received the support of a Catholic German-Dutch prince, William of the House of Orange-Nassau, the incumbent royal governor of several of the provinces. Colloquially—but unjustifiably—known as William the Silent for his supposed self-control not to erupt in anger, he was an effective political leader. As one of the richest Dutch nobles, he was also an important financial supporter of the rebels.

Although William had some successes against the Spanish army, the Duke of Alba eventually defeated his forces. William fled to his ancestral lands in Germany, from where he organized several mostly unsuccessful invasions. In 1573, Philip II relieved Alba of command and instituted a policy of reconciliation and acquiescence to greater local control. That split the rebels. The mostly Catholic southern provinces, which constitute Belgium today, returned to the Spanish fold. The seven increasingly Protestant provinces of the north remained in rebellion under William’s leadership. Dutch military fortunes brightened after the army of the United Provinces was formed following the Union of Utrecht. The army was placed under the command of William’s son, Maurice, after William was assassinated by a Spanish agent in 1584. Prince Maurice remained a prominent military and political leader for the next forty years.

One facet of the conflict at which the Dutch were consistently better than the Spanish was at sea. The northern provinces had long been oriented to fishing and maritime trade. Their coastal trade surpassed that of England and France in the 16th century. By the 17th century, their horizon had expanded to oceanic trade and the acquisition of colonies and foreign trading concessions. Along with that experience came skills in naval warfare. Professor Scott Gordon, in his thorough work on checks and balances in older constitutions, Controlling the State, estimates that, in the middle of the 17th century, the United Provinces owned more shipping capacity than England, France, the German states, Spain, and Portugal—combined. Amsterdam became the leading financial center of the world until it was finally replaced by London a century and a half later. It was the Dutch bankers from whom John Adams sought help during the American Revolution, because that was where the money was. Amsterdam was also one of the largest cities in Europe in the 17th century, having grown from 100,000 to 200,000 population in the middle decades.

Although the seven provinces were formally the main constituent parts of the “United Provinces of the Netherlands,” the towns were the actual foundation of the Dutch Republic’s political structure. The approximately 200 native Dutch noble families had status but limited power. There was not the same tradition of feudalism based on relationships of lord and vassal as in other European domains. In part, this was due to the closeness to the sea, with its sources of sustenance and wealth. In part it was due to the fact that for generations, land had been recovered by draining swamps or building dikes. These “polders” were claimed by commoners.

The towns were governed by the Regents, a wealthy subgroup of the merchant elite. The towns traced their charters and privileges to the medieval period. The Regents claimed to act for and represent the citizenry. However, their authority did not rest on broad political participation. From that perspective, the structure was not a republic, but an oligarchy. Meetings of the town councils controlled by the Regents were not open to the public. At the same time, the Regents did not constitute a class-conscious bourgeoisie in a Marxist sense. Rather, their actions seem to have been driven by local identity and preserving their local power. This town-centric system of governance remained until the reorganization of the Netherlands after the end of the Republic in the 1790s.

The towns built their own defense installations and levied taxes to maintain them, to preserve public order, and to provide for the poor. They also operated their own courts, enforced provincial laws, and administered provincial policies. The policy-making bodies, the town councils, generally had between 20 and 40 members. They elected various burgomasters annually from the Regent class to carry out executive and judicial functions.

The oligarchic character of the town governments was modulated somewhat through the militia, a combination military unit and social club. They were composed of troops of well-trained and heavily-armed men. Because members had to supply their own weapons, the militias consisted of middle and upper-middle class volunteers. They were led by officers from Regent families appointed by the town councils and were expected to carry out the latter’s wishes in case of civil disturbances. According to sources cited by Professor Gordon, riots were a not-uncommon manner for the citizenry to provide feedback to the Regents about their policies. The militia sometimes stood back if they opposed those policies themselves. Such expressions of popular discontent would have been particularly potent because the towns were still rather small, with the homes of the Regent families in close proximity to the other residents.

Gordon considers the failure of the Dutch Republic to provide less destructive means of popular expression of opposition to the town councils as one of its defects. Perhaps. But such riots were not uncommon in the history of the American republic, with apparently a customary acceptance of a degree of violence before the militia would be summoned. Recent events show that still to be a characteristic of American society. Whether that shows a defect in the republican nature of the political structure created in the constitutions of the United States and the several states is an interesting speculation.

The level of government above the towns were the provinces, formally the constitutional heart of the Dutch Republic. They were governed by entities called the “provincial states,” another institution formed in the Middle Ages. This term is not to be confused with the American concept of “states” as distinct political domains. Rather, the term refers to specific constitutional bodies which governed such political domains. These were assemblies of delegates from the towns. The members were selected by the town councils typically from the members of the Regent families. A town could send more than one delegate, but each town only had one vote, regardless of its population. However, despite this formal equality where decisions were generally reached by compromise and consensus, a dominant town would necessarily exercise a greater influence. Amsterdam as the largest and wealthiest town within the province of Holland provides a telling example. A province’s nobility also had one vote.

The principal obligation of the provincial states was to maintain the province’s military forces and to provide a system of provincial courts to preside over trials for various crimes and for appeals from the local courts. These assemblies could also assess taxes, but were dependent on the towns to collect them. Not infrequently there might be tension between the provincial state and the stadholder, the province’s chief executive from the House of Orange. Those tensions were especially acute and frequent in Holland, due to the strong anti-Orangist sentiments of Amsterdam, with its bourgeois merchants, its growing tradition of secular and religious dissent, and its cosmopolitanism. At times, Holland, as well as other provinces, refused to elect a stadholder when the prior one died.

At the apex of the Republic’s constitutional structure was the States-General, the body of around 50 delegates from the provinces. It met at The Hague. Although a province might send more than one delegate, each province had one vote. This equality of sovereigns marked the constitutional nature of the Republic in Madison’s characterization of it as a confederacy. As with the provincial states, this formal equality was tempered by the inequality of size and wealth among the provinces, in particular, Holland. That province’s delegation’s willingness to provide—or not—needed funding gave it influence which better reflected its economic position. The terms of office of the delegates were determined by the provinces and could be at pleasure, for one or more years, or for life. The agenda of the States-General was set by its president, which position rotated weekly among the provinces. Unanimity was required for action, although that was sometimes ignored if a particular need arose. It had various working committees to formulate policy and a Council of State to carry out its executive functions. The Council of State was composed of the provincial stadholder and twelve other appointees of the provincial states.

Initially, the States-General was to deal with the military campaign for independence. Thereafter, its role continued to be about war in the various conflicts in which the republic found itself in the 17th century. Beyond that, the States-General had broad responsibilities over coinage, diplomacy and foreign commerce and, as the Dutch quickly entered the pursuit of overseas empire, colonial affairs. Although it had the potential to become a national legislative body, that potential remained inchoate. Aside from the overarching political jealousies of the provinces and towns to maintain their local privileges, there were more direct limitations on the powers of the States-General, as well. For one, that body could not generally impose taxes directly. It could tax the colonies, but that yielded rather little. It could make assessments on the provinces, but that depended on the willingness of their delegates to agree, especially the delegation from Holland which typically had to bear at least half of the burden of an assessment. Any loans sought by the States-General for the benefit of the Republic must be approved by the provinces. It becomes clear why Madison saw the Republic as a case study for the fate of the Articles of Confederation.

Finally, there were the stadholder of the provinces and the de facto stadholder of the United Provinces. The office was derived from the provincial governorships the Holy Roman Emperor had established. Each provincial state selected that province’s stadholder for life. More than one province could appoint the same person, a very common scenario. During the two centuries of the Republic after 1589, all provinces always appointed members of the House of Orange-Nassau. When the need arose, the province of Holland, as the most important of the union, always appointed the head of that family. Technically, there was no Stadholder of the United Provinces. However, by customary practice, the States-General always appointed the stadholder of Holland to be the Republic’s commander-in-chief. This made the head of the House of Orange the main political leader of the most populous and prosperous province and the commander-in-chief of the Republic’s armed forces. The stadholderships generally became hereditary in the mid-17th century.

The power of the Prince of Orange over the armed forces included the power to set up military tribunals and to appoint higher-level officers. He also met with foreign ambassadors and had some adjudicatory powers, such as settling disputes among the provinces. His influence was bolstered by two broad sources. First, at the level of the union, he sat on all working committees of the States-General and on the Council of State. Together with his life term, this gave him broad knowledge about political matters over a much longer time frame than the provincial delegation, analogous to the Venetian Doge’s position in relation to the Senate and Great Council. If knowledge is power, this made the prince powerful, indeed.

Second, being the stadholder of Holland and, usually, several other provinces gave him significant control over provincial and even town affairs. The provincial stadholder was the head the province’s highest court, could pardon criminals, and had significant patronage powers over the appointment of officials at all levels. He could appoint certain burgomasters, although those had to be made from lists submitted by the Regent-controlled town councils. These roles, some formal, others by accepted practice, exercised at all levels of government, and extending to civil, military, and judicial matters, made the Prince of Orange in some ways the vortex around which Dutch politics swirled. In the end, however, with the vague constitutional dimensions of the office, it was the personality and talents of the particular stadholder which defined his powers.

A curious spectacle occasionally arose when various provinces left their stadholderships unoccupied. Even the province of Holland at one point in the 18th century left that position unoccupied for 45 years. In the 17th century Holland also prohibited the House of Orange from holding the stadholderships. Soon thereafter, its provincial state abolished the office altogether. That experiment lasted only five years, when those acts were repealed in the face of an invasion by England and France. One modern commentator quoted by Professor Gordon described the princes of the House of Orange as having “a special status within the Dutch state, almost mystical … in its nature.”

The Republic’s constitution was weakened in the 18th century in part due to factional rivalries in Amsterdam, the largest and wealthiest city in the largest and wealthiest province. The monarchist pretentious of the House of Orange clashed with the increasingly militant endemic anti-Orangist attitudes of the urban bourgeoisie. With a hardening of factional positions, political accommodations became more difficult. As well, the financial burdens of the colonial empire and the military needed to support it began to overwhelm the capacities of what was, after all, a rather small country. Still, it took the military might of, first, the Prussian Army and, thereafter, Napoleon’s forces, to end the Republic’s two centuries of successful government.

Madison in Number 20 of The Federalist disparages the Dutch system, his stand-in for the Articles of Confederation, as, “Imbecility in the government; discord among the provinces; foreign influence and indignities; a precarious existence in peace; and peculiar calamities from war.” He seems to have derived his information from a book by Sir William Temple, a 17th century British ambassador to the United Provinces. But Temple was hardly an unsympathetic observer of the Republic. Where Madison saw deadlock leading to eventual dissolution and anarchy, Temple saw a system which attracted large numbers of foreigners from polities less conducive to liberty. Certainly, the federal nature of the United Provinces stood in stark contrast to the centralization of power in national governments generally, and in monarchs particularly, which was ascendant in the Europe of the time.

If one uses classic designations of constitutions, the Dutch system at first blush most closely resembles an oligarchy. If one uses Madison’s definition in Number 10 of The Federalist, it was a closed system controlled by the wealthy Regent families and the Prince of Orange. It failed the test of broad public participation even by the limited standards of the early American polities. But, if one evaluates a republic functionally, as a political structure which provides overall social stability, fosters the general well-being of the people, and promotes the liberty of individuals to follow their own paths to fulfilled lives, all by reigning in various political institutions through a functioning balancing of powers, the constitution of the United Provinces qualifies. The mutual checks provided among the levels of government (town, provinces, union), among the provinces themselves, and between the stadholder on the one hand and the provincial states and States-General created a system which protected the liberties of the people better than other contemporaneous countries. More bluntly, as Professor Gordon explains, “[W]ith this political system, the Dutch not only fought Spain and France to a standstill and invaded England, but also made their little collection of swamps and polders into the richest, most civilized, nation in the early modern world.”

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.

 

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Much of the history of the Holy Roman Empire was one of conflict and intrigue: among emperors and popes, emperors and nobles, and nobles themselves. Periods shaped by forces that fostered centralization of power in the hands of strong and capable emperors were eclipsed by developments that threatened to tear apart the Empire due to personal weaknesses or military miscalculations by the holders of the imperial title. Several generations of extraordinarily wise and astute rulers were inevitably followed by the collapse of dynasties and periods of political turmoil and social misery.

The collapse of the Western Roman Empire in the 5th century A.D. led to the formation of various Germanic kingdoms throughout the former territory. The Visigoths and other invaders attempted to carry on the Roman civilization, but lacked the administrative capabilities, technological know-how, and economic wherewithal to do so. They, in turn, also collapsed within a few generations. For the inhabitants of the former Roman domain, there was continuing danger from Germanic tribes, other marauders that are said to have been successors to the Huns, and, beginning in the 7th century, Arab raiders and armies. The Byzantine emperor’s control over those lands was nominal. The Roman Catholic Church was organizationally weak and doctrinally disorganized.

In the 8th century, the situation improved. A new line of kings had been elected by the nobles of a Germanic people, the Franks. The most prominent was a warrior-king, Charles. He defeated other German tribes and pushed against the Muslims in Spain whose advance into Frankish territory had been stopped by his grandfather, Charles the Hammer. Pope Leo III, eager to distance himself from the political and religious influences of the Orthodox Byzantine Empire, and hoping to spread the influence of the Catholic Church through the physical security offered by the Franks, crowned Charles emperor on Christmas Day, 800 A.D. Carolus Magnus, or Charlemagne, as he came to be known, was proclaimed the successor to the Roman Empire in the west. Indeed, from the imperial capital at Aachen, in the current Germany, he governed, as “Emperor of the Romans,” an area of Europe larger than anything seen since that empire.

Three decades after his death, Charlemagne’s realm was divided among his grandsons. Several centuries later, the western portion became the kingdom of France. The eastern portion became the German dominions. The end of the Carolingian dynasty in 911 resulted in the fracturing of the eastern portion. There were strong tribal loyalties within the various ancestral German domains, centered on several dukedoms and on the holdings of other, less powerful local strongmen.

In 936, Otto, the duke of the Saxons, a particularly warlike people who had been barely Christianized through force by Charlemagne a century earlier, was elected King of the Germans by the other nobles. A successful military campaigner who extended the eastern Frankish realm, Otto was given the imperial title in 962, after the Pope had appealed to him for military help. Referred to as Otto the Great, he established a new dynasty of emperors. His grandson, Otto III, revived the imperial seal of Charlemagne which had the motto, in Latin, that stood for “Renewal of the Roman Empire.” He understood this to be a clearly Christian empire, not only a political unit as imperium romanum, as reflected in his designation of the realm as imperium christianum. The successors of Otto III were weak and saw themselves as primarily German kings who happened to have holdings in Italy, not as rulers of a multicultural and transcendent Christian empire.

Once political conditions in western Europe became relatively settled by the end of the 10th century, the era of the warrior-king was succeeded by the era of the great landholding magnates. High feudalism emerged as the dominant social and political structure. Wealth, social standing, and power were based on land ownership and formalized through personal obligations between lords and vassals. On the continent more so than in England, local great men were independent of the emperor, who was addressed at times as “King of Germany” or the “German Roman Emperor.” These nobles retained their ancestral privileges and often claimed new ones.

Nevertheless, the idea of Empire remained alive. This political tension of a universal empire, yet of a German people, led externally to frequent, and not always enthusiastic or well-received, involvement of the Germans in the affairs of Italian communities. Internally, it resulted in the strange federal structure of what formally became known in the 13th century as the Holy Roman Empire. The interactions between emperors and popes further underscored the claims to universality. Papal coronation bestowed God’s recognition of the emperors’ legitimacy as secular rulers in Christendom. Refusal by a pope to grant that legitimacy, or removing it later by issuing a ban on the emperor, endangered the emperor’s rule by absolving the people, particularly the nobility, of loyalty to their earthly lord and excused them from fealty to any oath sworn to that lord. In a society vastly more religious than ours, within a feudal structure fundamentally based on mutual personal loyalties and obligations, such a development could prove fatal to the ruler.

After the end of the Saxon Ottonian line in 1024 and of its successors, the Frankish Salians, control over the Holy Roman Empire shifted in 1127 to a family from another part of the realm, the Hohenstaufen line from the Duchy of Swabia in southwest Germany. Under their best-known ruler, the charismatic and militarily and politically astute Emperor Frederick I Barbarossa (“Red beard”) from 1155 to 1190, the Empire achieved its greatest geographical expanse. Shortly after the rule of his similarly powerful grandson, Frederick II, the Hohenstaufen line ended, and the Great Interregnum brought considerable turmoil to the Empire and contests among various noble families for the imperial title. Rival emperors from different houses were chosen, and a general decline of the Empire’s territory and influence occurred. Not until the 16th century did the Empire regain a prominent position in Europe.

The struggle between emperor and nobles ebbed and flowed, depending significantly on the dynamism and capabilities of the emperors. These contests were endemic, with a parallel for several centuries in the conflict between the emperors and the popes. An example of the latter was the Investiture Controversy over the right to name local church leaders which led to a half-century of civil strife in Germany in the late 11th and early 12th centuries and ended with the emperor’s powers reduced as against popes and local nobles. Even as strong an emperor as Frederick II out of political expediency had to confirm, in statutes of 1220 and 1232, previously only customary privileges to the nobles, such as over tolls, coinage, and fortifications.

In 1493, Maximilian I from the Habsburg family, became Holy Roman Emperor. From that year, the Habsburg line provided an almost uninterrupted sequence of emperors until the Empire was abolished in 1806. A significant change in outlook under Maximilian was a turn to a more national identity and the stirrings of a nascent nation-state, in part due to the proposed Imperial Reform during the late 15th century supported by the energetic Maximilian. As a consequence, the realm began to be known as the Holy Roman Empire of the German Nation.

The Imperial Reform of 1495 was an attempt to modernize the administration of the realm and to increase the power of the emperor through more centralized governance. Aside from some success in making aspects of legal administration uniform through the use of Roman Law, the reforms came to naught by being ignored in the local principalities. There, the rulers generally strove to exercise the absolute powers of monarchs in England and France. As to the Empire, these local nobles guarded their privileges. Not to be outdone, the independent imperial “free” German cities, with their rising populations and increasingly powerful commercial bourgeoisie, were no less jealous of their privileges than the landed nobility.

The problem with the political structure of the Holy Roman Empire in the eyes of the framers of the American Constitution of 1787 was the overall weakness of the emperor in relation to the nobles. The Empire was a federal system, but, in their view, an unsuccessful version. The criticism is, overall, a fair one. Alexander Hamilton and James Madison, writing in The Federalist repeatedly identified the sources of weakness. Both emphasized the straightened financial circumstances in which the emperor frequently found himself to fund the costs of imperial government or necessary military actions against foreign countries. That difficulty was due at least in part to the obstructions created by local rulers to the flow of commerce.

Hamilton mentioned in Federalist Number 12 the emperor’s inability to raise funds, despite the “great extent of fertile, cultivated, and populous territory, a large proportion of which is situated in mild and luxuriant climates. In some parts of this territory are to be found the best gold and silver mines in Europe. And yet, from the want of the fostering influence of commerce, that monarch can boast but slender revenues.” Along the same lines, quoting from the Encyclopedia, he wrote in Number 22, “The commerce of the German empire is in continual trammels, from the multiplicity of the duties which the several princes and states enact upon the merchandises passing through their territories; by means of which the fine streams and navigable rivers with which Germany is so happily watered, are rendered almost useless.” In Number 42, Madison seconded Hamiltons’s point, “In Germany, it is a law of the empire, that the princes and states shall not lay tolls or customs on bridges, rivers, or passages, without the consent of the emperor and diet [the parliament]; though it appears from a quotation in an antecedent paper, that the practice in this, as in many other instances in that confederacy, has not followed the law, and has produced there the mischiefs which have been foreseen here.” Both writers painted this bleak picture as an omen of what would occur in the United States under the Article of Confederation. The Constitution would prevent this problem because, there, Congress was given “a superintending authority over the reciprocal trade of [the] confederated states.”

More fundamentally, however, the problem of the Empire and, by analogy, the United States under the Articles of Confederation was in the structure itself, an imperium in imperio, a state exercising sovereignty within another state. In Number 19 of The Federalist, Madison presented a lengthy overview of the Empire’s history. He identified problems with the structure, such as the difficulty to meet military emergencies or collect requisitions. The emperor had no holdings as such, only in his position as a hereditary sovereign in his ancestral lands or those acquired by marriage. Madison dismissed the Empire as a playground of foreign rulers because of the conflicts among the members of the Empire and between the emperor and the nobles large and small. This division allowed foreign rulers to split the allegiances of the nobles and to keep the empire weak. The worst example of this was the Thirty Years’ War from 1618 to 1648. While there were limitations on the powers of the nobles, and while the emperor had various prerogatives, these were paper powers, not real. Ultimately, the problem was that the empire was a community of sovereigns.

In support of Madison’s critique, one can look at one locus of power, the Reichstag, the name for the Imperial Diet or parliament. The Diet in some form already existed during Charlemagne’s time. Originally intended as a forum for discussions, not as a modern legislative body, by the 11th century it presented a serious counterweight to the emperor and a source of power for the nobles in two ways. First, the Diet participated in the making of law, typically through a collaborative manner with the emperor. Second, certain members of the Diet elected the Emperor.

The Diet during the Middle Ages comprised two “colleges.” That number was eventually raised to three as feudalism gave way to a more commercial modern society, and the growing importance of the bourgeoisie in the cities required representation of their estate. Each member of those colleges in essence represented a sovereignty, and the Diet in that light was a “community of sovereigns.” When the Diet met, the colleges and the emperor attended together. All were seated in a carefully prescribed manner, respecting their rank, with the emperor front and center and raised at least three feet above all others. Voting might be either per individual or per collegium as an estate in a complicated arrangement, depending on the rank of that individual and group.

The most important of these groups was the college of electors, which represented another locus of power in the Empire. Not only did the prince-electors vote individually, rather than as an estate, but they had the important occasional task of electing the emperor, the third institution of power. There was a fourth locus of power in the Empire, that is, the pope. Papal influence precipitated many political crises in medieval Europe, because the emperor was not properly installed until crowned by the pope, a practice discontinued after Charles V in the 16th century. However, papal influence is not crucial to an examination of the Empire’s political constitution as that structure influenced the debates over the American Constitution of 1787.

The election of the emperors was derived from the ancient practice of German tribal councils to elect their leaders for life. The direct male heirs of a deceased ruler generally had the advantage in any succession claim, but heredity was never a guarantee. That practice was extended first to the election of the kings of Germany by the dukes of the largest tribes in the 10th century, and then to the election of the emperors in the 13th century. Initially, the number of electors was somewhat fluid, but eventually there were four set secular and three set ecclesiastical electors. Over time, the membership was increased to nine and, briefly, to ten electors. The ecclesiastic rulers from certain archbishoprics eventually were replaced by secular electors, and, in time, the secular rulers themselves might be replaced by others as power shifted among rulers of various local domains.

A critical moment came with the promulgation of the Golden Bull of 1356 by the Imperial Diet at Nuremberg. A “bull” in this usage is derived from the Latin word for a seal attached to a document. Because of such a decree’s significance, the imperial seal attached to this document was made of gold. This particular golden bull was the closest thing to a written constitution of the Empire. It was the result of the political instability caused by contested elections and succession controversies. It specified the number—seven—and identity—by secular or ecclesiastical domain—of the imperial electors. Procedures were set for the emperor’s election, the specific functions of the electors were prescribed, and an order of succession was provided if an elector died. For example, to prevent rival claims from lingering and dragging the realm into disunity and war, the deliberations of the electors must result in a timely decision. Failure to decide on an emperor within 30 days in theory would result in the electors being given only bread and water as sustenance until they concluded their task.

Also significant was the Golden Bull’s undermining of the emperor’s power. Sometimes described as a German analogue to the Magna Charta of 1215 imposed by the English nobility on King John, it affirmed the privileges of the nobility against the emperor. Tolls and coinage were the right of the nobles in their domains. Crimes against them, including presumably through actions by the emperor, became treason against the empire itself. The rulings of their courts could not be appealed to the emperor. With a few notable episodic exceptions, such as the rule of Maximilian I and Charles V in the 16th century, this decree put the Empire on a gradual path to disintegration and reconfiguration as independent nations-states.

Voltaire is credited with the quip in his Essay on Customs in 1756 that the Empire was “neither Holy nor Roman nor an Empire.” Whatever might have been the veracity of his derision half a millennium earlier, when he wrote the essay his satire did not require much nuanced reflection on the part of his readers. The emperor in a basic sense was always the primus inter pares, and his power rested on the prestige of his title, the size and wealth of his own ancestral domain, and his skills as a political operator and military leader. Even with the emergence of the modern nation-state, the Holy Roman Empire remained just a confederation of de facto sovereignties, a matter underscored by the Treaty of Westphalia in 1648, which ended the Thirty Years’ War. The Habsburg ruler’s power was a far cry from the classic imperium of Octavian.

With the Reformation and the rise of the self-confident nation-state, the Roman and classic medieval idea of the universal Christian empire also became anachronistic. And it was no longer “Roman.” The conscious effort of Frederick I Barbarossa in the 12th century to demonstrate that the Empire was “Roman” stands in stark contrast with the 16th century, when emperors and the Diet emphasized its German character. As constituent German entities in the Empire, such as Prussia and Bavaria, grew more powerful, the struggles between emperor and nobles intensified and sharpened into outright wars as between independent nations. The imperial structure and its institutions, such as the Diet, became weaker and, indeed, irrelevant. Despite some belated and ineffectual efforts at reform and reorganization around the turn of the 19th century, the Empire, the thousand-year Reich, was dissolved a half-century after Voltaire’s remark, when Napoleon’s army crushed the emperor’s forces and effected the abdication of Francis II 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.

 

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In Number 39 of The Federalist, James Madison objects to the habit of political writers of referring to Venice as a republic. He asserts that Venice is a system “where absolute power over the great body of the people is exercised, in the most absolute manner, by a small body of hereditary nobles.” Later, in Number 48 of the same work, Madison raises the need of providing practical security for each branch of the government against the intrusion by others into its powers. He quotes Thomas Jefferson’s Notes on the State of Virginia. Jefferson, commenting about the formal separation of powers in the constitution of Virginia which he had been instrumental in creating, bemoaned the lack of effective barriers among the branches which would better preserve their respective independence. As a part of his critique, Jefferson opined that the concentration of legislative, executive, and judicial powers in one body would be “the definition of despotic government.” Further, it mattered not “that these powers would be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one. Let those who doubt it, turn their eyes on the republic of Venice.”

Leaving aside the historical veracity of Madison’s and Jefferson’s characterizations of Venice, their perceptions shaped their ideas of a proper “republican” political structure and how that would differ from Venice. Madison’s critique of a city governed absolutely by a small body of men made Venice an aristocracy or, more accurately, an oligarchy for him. It is ironic that opponents of the proposed Constitution launched that very calumny against the structure which Madison was defending. The Anti-federalists maintained a drumbeat of attacks about the supposed anti-republican, aristocratic Constitution. Some were thoughtful and substantive objections. Other writers opted for the popular appeal of satire, not likely nuanced and subtle humor, but an entertaining burlesque style.

Two examples suffice. A writer styling himself “Aristocrotis” wrote a lengthy satire in a pamphlet published in Pennsylvania in 1788.

“For my own part, I was so smitten with the character of the members [of the Philadelphia Convention], that I had assented to their production, while it was yet in embryo. And I make no doubt but every good republican did so too. But how great was my surprise, when it appeared with such a venerable train of names annexed to its tail, to find some of the people under different signatures—such as Centinel, Old Whig, Brutus, etc.—daring to oppose it, and that too with barefaced arguments, obstinate reason and stubborn truth. This is certainly a piece of the most extravagant impudence to presume to contradict the collected wisdom of the United States; or to suppose a body, who engrossed the whole wisdom of the continent, was capable of erring. I expected the superior character of the convention would have secured it from profane sallies of a plebeian’s pen; and its inherent infallibility would have debarred the interference of impertinent reason or truth.”

With the tune of satire set, Aristocrotis applied it to a libretto of feigned aristocratic enthusiasm for a document which, according to him, set the few to rule over the many, in accord with the law of nature. Particularly useful for this aristocratic scheme was a powerful Senate and both direct and deviously hidden restrictions on the potentially dangerous House of Representatives. Establishing the latter was an unavoidable practice reflective of the corrupt practices of the times, he acknowledged. However, providing for 2-year terms, instead of the annual elections common to republican state constitutions, in combination with Congress’s power to set the times, places, and manner of elections allowed that body’s membership to perpetuate itself. In addition, Congress had the power to tax so as to give itself independence over its own pay. Raising taxes on the people would have another salubrious effect: it will make them industrious. “They will then be obliged to labor for money to pay their taxes. There will be no trifling from time to time, as is done now….This will make the people attend to their own business, and not be dabbling in politics—things they are entirely ignorant of; nor is it proper they should understand.” If the people object, Congress had the power to make them comply by raising an army. This backhanded compliment reflected the deep republican antipathy to peacetime armies.

Another example of the style was an essay by “Montezuma,” which appeared in the Philadelphia Independent Gazetteer on October 17, 1787, a month after the constitutional convention adjourned. If anything, Montezuma was even more prone to literary absurdity and plot lines reminiscent of a Gilbert and Sullivan production a century later than was Aristocrotis. He begins, with all emphases in the original,

“We, the Aristocratic party of the United States, lamenting the many inconveniences to which the late confederation subjected the well-born, the better kind of people, bringing them down to the level of the rabble—and holding in utter detestation that frontispiece to every bill of rights, “that all men are created equal”—beg leave (for the purpose of drawing a line between such as we think were ordained to govern, and such as were made to bear the weight of government without having any share in its administration) to submit to our friends in the first class for their inspection, the following defense of our monarchical, aristocratic democracy.”

After this mockery of the Constitution’s preamble, Montezuma proceeds to a listing of provisions that animate his imagined constitution. Any semblance of republicanism in the actual proposal, such as the election of the House of Representatives is a mirage. After all, the actions of the House can be overridden by the aristocratic Senate’s refusal to go along or by the monarchic President’s veto. Moreover, there is no limit to their re-election, so that the basic republican principle of “rotation of office” found in the Articles of Confederation is eliminated. This will result in perpetual re-election and soon make the representatives permanent members of the ruling elite. The Senate is the main home of this elite and is structured with long overlapping terms so that there is continuity in membership to acculturate any newcomers to the elite’s ways. The states are made subordinate to, and dependent on, the national government and will be “absorbed by our grand continental vortex, or dwindle into petty corporations, and have power over little else than yoaking hogs or determining the width of cart wheels.” The office of President is so named to fool the rubes with a republican title which hides his kingship. After all, “[W]e all know that Cromwell was a King, with the title of Protector.” He is the head of a standing army, which will start out small, ostensibly to defend the frontier. “Now a regiment and then a legion must be added quietly.” This allows the elite “to entrench ourselves so as to laugh at the cabals of the commonality.” There is no bill of rights, including the “great evil” of freedom of the press. The list goes on. Concluding his send-up of the Constitution through its closing phrase, Montezuma writes, “Signed by unanimous order of the lords spiritual and temporal,” a direct reference to the British House of Lords.

Montezuma and Aristocrotis recited the common themes of the Constitution’s opponents about the document’s insufficient republicanism: Long terms of office, no rotation in office through mandatory term limits, an aristocratic Senate, a president elected and re-elected for sequential lengthy terms, a standing army, consolidation of the formerly sovereign states into a massive national government, and lack of a bill of rights. There were other, more specific concerns raised by thoughtful opponents, but the foregoing resonated well with the citizenry.

If those themes defined a constitution’s non-republican character, Venice looked little different from what the Philadelphia Convention had produced. True, a formal nobility was prohibited under the Constitution, but there had been no formal nobility set in place in Venice until the previous constitutional structure was changed in 1297. Rather, wealth determined one’s status. Further, the commoners controlled the operations of the government through the bureaucracy. There were other important political institutions, such as the Senate with its important role to define public policy in Venice, but the ultimate power to make law was in the most populous branch, the Great Council, acting without fear of a veto by another branch of government. Unlike the proposed American system, membership in the Venetian Senate and the executive apparatus, with the exception of the Doge, was limited to annual or even shorter terms, as was the practice in the early state constitutions. While the President’s selection was filtered through electors chosen by the state legislatures, and the election might finally be determined by the House of Representatives, the selection of the Doge occurred through a process which had a strong component of what was classically viewed as a “democratic” tool, the drawing of lots of the names of those who would make that selection. The likelihood of a cabal controlling this convoluted process in order to install a puppet as the head of government was no more likely in Venice than under the Constitution. Moreover, the Doge had little formal power, unlike the President. Finally, Venice had no standing army, although it did have a large and powerful navy. In short, to an opponent of the Constitution, “aristocratic” Venice had at least as “republican” a character as the proposed American system, and Madison’s contemptuous dismissal of the city as a small group governing with absolute power sounded hollow.

The writers of The Federalist strove mightily to rebut these attacks. Madison’s narrowly formalistic definition of a republic in essay Number 10 that its distinguishing characteristic was its system of government by indirect representation, rather than direct action by the citizenry, was useful to establish a minimum of republicanism in the proposed system. But, by itself, it would hardly suffice to address the Anti-federalists’ multiple attacks. Madison understood this weakness and went on the attack, cleverly turning his opponents’ arguments against them in connection with the problem of “factions” and their threat to individual liberty and political stability.

Today, that essay is considered a brilliant insight into how political actors operate and how the framers were practical men who set up the constitutional machinery for our system of interest group politics later dubbed by the American political theorist Robert Dahl as Madisonian “polyarchy.” Yet, at the time of its publication, essay Number 10 aroused hardly a murmur. The reason likely was that few disputed his premises or his discussion about the existence, sources, and problems of factions in society seeking their own ends in contrast to the republican ideal of the general welfare. Alexander Hamilton, for one, had addressed the same point in essay Number 9. As well, no one really challenged his definition as a necessary characteristic of a republic. They disagreed about its sufficiency for a republic and, more profoundly, about whether the Constitution adequately balanced the self-interests of factions while at the same time preserving liberty.

As in so many other instances, the writers of The Federalist took to heart the maxim that “the best defense is a good offense.” Madison argued first that the republican principle of the vote, as qualified by the states themselves per the Constitution, would protect against extended dominance by some political minority. As to liberty, Madison asserted that the very variety of political factions spread across the country made the national council less likely to succumb to a dictatorship of an entrenched faction than would be the case in a smaller, culturally more homogeneous polity, whether democratic or republican in structure, such as a state or a city, including Venice. In a memorable paragraph, he wrote:

“The influence of factious leaders may kindle a flame within their particular states, but will be unable to spread a general conflagration through the other states: a religious sect may degenerate into a political faction on a part of the confederacy; but the variety of sects dispersed over the entire face of it, must secure the national councils against any danger from that source: a rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the union, than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district, than an entire state.’

In other words, to prevent the deleterious effects of factions, the answer is, the more, the better, and the larger the domain, the more factions will exist. In at least the sense of guarding against a federal tyrant, diversity really is our strength. He repeated this defense of the general government in other essays, including one of the most renowned, Number 51.

Essay Number 51 also provides a thoroughgoing refutation that the states will be “consolidated” into the general government, and that the latter will degenerate into a tyranny. Madison relied on the formal structural separation of powers with its mutual checks and balances and on reflections about human nature. As to the first, he found common ground with his opponents:

“In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which, to a certain extent, is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted, that the members of each should have as little agency as possible in the appointment of the members of the others….It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices.” In the opinion of its supporters, the Constitution did that, and to exactly the correct degree.

As to the second, Madison tapped into the cynicism of some of his antagonists and the generally pessimistic views most Americans had about human nature in its fallen state. In another series of hard-hitting paragraphs, he urged:

“But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others….Ambition must be made to counteract ambition. The interests of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government of men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

In short, government is a necessary evil commensurate with the fall of mankind. But, as a human creation, it, too, is naturally corrupt. To protect liberty, one cannot overly rely on the virtue of the citizenry, and certainly not on that of the rulers. Constitutions are made of parchment and need robust pragmatism to work. To do that, it is best to harness the natural self-interest of politicians to maintain and then expand their power, by setting them against each other in various independent centers of power, state, national, legislative, executive, and judicial. The scandalous and amoral proto-capitalist assertion by the early-18th-century economist Bernard de Mandeville in his satirical Fable of the Bees about how private vices, such as greed, lead to public benefits, such as economic growth, applies well in the political realm, it seems. Such a multiplicity of political institutions acting as checks on each other, exists in the entire system of human affairs, private and public, according to Madison. An examination of the competition among political bodies and offices which characterized constitutions throughout Western history, from Athens and Sparta to Rome and Venice, bears him out.

It must be noted that, by engaging their opponents in a debate about the objects of government in a republic, not merely about its operational grounding in the particulars of the concept of representation, the writers of The Federalist were able to turn the contest to their advantage. Debates over annual versus biennial election of representatives, or four-year terms for the President versus three-year terms for the governor of New York, was playing small ball. Those issues must be addressed and were, in various writings. Excepting the careful obfuscation of the institution of slavery, the big issues were given their proper due. Reassuring the people incessantly that the federal government was of little consequence when compared to the reserved powers of the states; that the President had exactly the right degree of power to provide energy to government while also being checked by Congress’s or the Senate’s power over the purse, war, and treaties; that a standing army was necessary to protect the country’s security and that the possibility of that army becoming dangerous to liberty was remote in light of the vastly larger number of armed Americans organized into militia.; that a bill of rights was both unnecessary and would be proposed once the Constitution was adopted. Those were the republican principles which mattered, and it was there that Madison and others successfully advocated the Constitution’s republican bona fides.

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.

 

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Guest Essayist: Joerg Knipprath


In Number 10 of The Federalist, James Madison defines “republic” and distinguishes that term from “democracy.” The latter, in its “pure” form, is “a society consisting of a small number of citizens, who assemble and administer the government in person, ….” Think of the classic New England town meeting or the administration of justice through a jury drawn by lot from the local citizenry. A republic, by contrast, is “a government in which the scheme of representation takes place, ….” It is distinguished by “first, the delegation of the government … [given] to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of the country, over which [a republic] may be extended.” The last quality is due to the fact that direct participation by citizens means that the place of government cannot be too far from their homes, lest they must leave their livelihoods and families, whereas the indirect system of governance in a republic only requires that the comparatively small number of representatives be able to travel long distances from their homes. One argument by historians for the collapse of the Roman Republic and its popular assemblies is that eventually there were too many Roman citizens living long distances from the city to make the required direct participation in the assemblies possible.

Political theorists and Western expositors of constitutional structures have characterized various systems as republics more broadly than Madison’s functional and limited definition. Examples abound. Plato ascribed the title Politeia (“Republic”) to his principal work on government. His conception of the ideal system was one of balance among different groups in society, with the leaders to come from an elite “guardian” class bred and trained to govern. This has been called government by philosopher-kings, but it was an obvious aristocracy in the true meaning of the word, government by the best (aristoi). Such government would establish a realm of “justice,” the cardinal virtue of the individual and the political order, through trained reason. He analogized the system to a charioteer who, through his reason guides the chariot safely along the path to the destination. The charioteer relies on the help of the strong obedient horse to control and direct the unruly horse which, driven by its appetites for physical satisfaction, wants to bolt off the path in search of immediate gratification of its desires. The charioteer is the guardian class, the strong horse the auxiliaries—disciplined and competent military officers and civil administrators—, and the unruly horse the masses. The system allows all to achieve their proper status in society in reflection of their inherent natural inequalities, provides stability necessary for social harmony, and is guided by an ethical principle—justice; hence, it is a republic.

Aristotle in his Politika did not discount the role of the demos in Athens. Like Madison, Aristotle considered democracy to be unstable and dangerous. From an analytic perspective, as was the case for Plato, democracy was a corruption of politeia, which he considered the best practical government for a city. Man is a politikon zoon, a creature which by his nature is best suited to live in the community that was the Greek polis. Once more, preserving a stable society and governing system was the key to maximizing the flourishing of each resident in accordance with the natural inequalities of each. Aristotle saw that balance in the “mixed” government of Athens, neither pure democracy nor oligarchy, in which the formal powers of the demos in the assembly and the jury courts were balanced by the Council of 500 and the practice of deference to the ideas and policies advanced by the elite of the wealthy and of those who earned military or civic honor.

The government of Rome before at least the First Triumvirate in 59 B.C. of Caesar, Pompey, and Crassus has consistently been described over the centuries as a “republic.” Polybius explained mikte (mixed government), the political structure of the Roman Republic, differently than did Aristotle. But he, too, deemed Rome a republic because of the balance among the monarchic, aristocratic, and democratic elements of its constitution. As important, the practical functioning of the competing political institutions limited the power of each. Polybius related the political structure and its evolution to Roman character traits that reflected Rome’s history and contemporary culture, which had stressed the maintenance of civic virtue. Polybius also understood that Romans were not immune to human passions and vices. Like Madison writing nearly two millennia later, he warned that Rome’s republican structures were better than other forms of government but were not impregnable barriers against political failure.

Cicero also described Rome as a mixed government, although his declaration that the people were the foundation of political authority was opposed to his approving description of the patrician Senate as preeminent. For Cicero, Rome’s system reflected the natural divisions of society, with leadership appropriately assigned to the best, the optimates. What made Rome a republic was that the mutual influences and overlapping authority of the various political institutions provided the stability for a successful community oriented to the thriving of all, the res publica. In the Ciceronian version, Rome was a republic, but an aristocratic one.

Closer to Madison’s time were the observations of Baron Montesquieu, an authority well-respected by the writers of The Federalist. Montesquieu’s The Spirit of the Laws has been criticized as contradictory and lacking systematic analysis. In a relevant portion which describes the English system, he calls the structure a mixed government, with separate roles for monarch, Lords, and Commons. He characterizes this as a republic, similar to the Rome of Polybius, because they embodied different interests and were able to check each other to prevent any of them from exercising power arbitrarily. England was a republic in function, but a monarchy in form.

Today, one sees systems self-named as republics that are a far cry from the foregoing examples. North Korea as the Democratic People’s Republic of Korea, the People’s Republic of China, and the erstwhile Union of Soviet Socialist Republics appear to have at most a passing resemblance to the Rome of Polybius or the England described by Montesquieu. Their “republican” connection seems to be at best a theoretical nod to the concept of the people, in the form of the proletarian class, as the source of authority, with the ruler chosen for long term, often life, by a token assemblage of delegates in a closed political system.

What then made classical Venice a republic? Based on classical taxonomy of “pure” political systems, Venice was an aristocracy. Although Venice had been founded under Roman rule, the most revealing period was the half-millennium between the constitutional reforms of 1297 and the Republic’s end after the city’s occupation by Napoleon in 1797. Like Rome and other classical polities, Venice had no written formal constitution or judicially applied constitutional law. The political structure was the result of practical responses to certain developments, the demands of popular opinion, and, as in Rome, the deference to custom traceable to the “wise ancestors.”

In 1297, membership in the nobility became fixed in certain families, and the previous fluid manner of gaining access through the accumulation of wealth during a period of economic expansion was foreclosed (the “Serrata”). That said, the number of nobles was significant, with estimates that it amounted at times to 5% of the population. The nobility governed, and their foundational institution was the Great Council. All adult males of the nobility belonged to the Council and could vote in its weekly meetings. That body debated and enacted laws. It voted on the appointment of the city’s political officials, of which at times there were estimated to be more than 800. Since the officials’ terms of office were brief, and turnover frequent, this task occupied considerable time of the Council.

In addition, there was another powerful political body, the 300-member Senate, Venice’s main effective policy-making institution. Nobles at least 32 years old were eligible to be selected by one of two procedures, election by the Council or by lot drawn from nominations by retiring Senators. Their annual terms overlapped, with no uniform beginning and end. As well, senior civil and military officers were members. The Senate determined policy for the government, most particularly in foreign and financial affairs. However, the agenda of the Senate was set by the 26-member Collegio, a sort of steering committee. While the Collegio could control what matters were debated by the Senate, it could only offer opinions held by various of its members about an issue, not submit concrete proposals.

The administrative part of the Venetian government was particularly complex, as described by Professor Scott Gordon in his well-researched book, Controlling the State. Regarding Venice, he refers frequently to Gasparo Contarini’s classic work from 1543, De Magistratibus et Republica Venetorum. Selection to office involved a confusing combination of voting and selection by lot. Gordon provides a schematic of the selection of the Doge, the city’s head. At once amusing and awe-inducing for its complexity, a simplified version is shown by: 30L-9L-40E-12L-25E-9L-45E-11L-41E-Doge, where L stands for selection by lot and E for election. In other words, at a meeting of the Great Council, the names of 30 members were drawn by lot. From them, 9 were drawn by lot. Those nine voted for 40 members of the Great Council. From those, 12 were drawn by lot, and so on, until 41 nominators were selected who would select the duke. This convoluted procedure had some anticipated benefits. Together with the prohibition of formal campaigning, the unpredictability of the eventual selecting body discouraged election rigging. Moreover, the time delays involved and the likely variation of opinions among the members of the Council encouraged debate in the Council and among the public about the qualifications of various potential candidates. Factionalism is unavoidable in large bodies, but its effects likely were somewhat blunted by this procedurally chaotic approach.

Although elected for life, the doge himself had little formal substantive power. He could do nothing official by himself. To meet visitors, or when he engaged in correspondence, at least two members of the Ducal Council had to be present. The Ducal Council was composed of six members elected for eight-month terms by the Great Council, each representing a geographic district of the city. They were the doge’s advisors, but also his watchdogs, much as the ephori (magistrates) of Sparta shadowed their kings.

Upon election, the new doge had to swear an oath on a document which detailed the limitations imposed on his office. Those limitations could vary, depending on the political conditions and the identity of the person selected. To remind him, the oath was reread to him every two months. After the doge died, his conduct was subject to an inquiry by committees of the Great Council. If he was found to have engaged in illegality, his estate could be fined, a not unusual result.

The office had little formal power, but it was more than simply ceremonial. The Doge presided over the meetings of the Great Council and the Senate, though he did so attended by the Ducal Council and the three chief judges of the criminal court. His power came from his long tenure and his participation in the processes and deliberations of all of the important organs of the city’s government.

There also were security and secret police organs, such as the shadowy Dieci (Council of Ten), elected by the Grand Council to staggered one-year terms, and the three Inquisitors. The Dieci targeted acts of subversion. The usual legal rules did not apply to them, to allow them to move quickly and secretly. The Inquisitors were a counterintelligence entity, set up to prevent disclosure of state secrets. Like all such extraordinary bodies connected to national security, they represented a potential threat to the republican structure of Venice. Notably, there is no record of them attempting to subvert the republic and seize power.

A final and very significant component of the Venetian system were the bureaucracy, the craft guilds, and the service clubs. All of these were controlled by the non-noble citizens of Venice. The first, especially, was an ever-expanding part of the government. Excluded from the political operations, commoners sought power through the bureaucratic departments. Eventually, a sort of bureaucratic oligarchy developed, as prominent families came to dominate certain departments over the generations. These cittadini roughly equaled the nobles in number, and they had the advantage that, unlike the annual terms of noble officeholders, they held their offices for life.

Venice acquired the reputation among writers during the 15th through 17th centuries of an “ideal” republic, with a stable constitution able to survive even catastrophic military defeat in 1508. The city was marked by good government and the protection of political and religious liberty. As noted by one modern commentator, Venice was “a Catholic state where the Protestant could share the security of the Greek and the Jew from persecution.”  The system stood in contrast to the violent chaos and bouts of persecution that characterized the history of Florence and other Italian cities, and the economic backwardness and lack of social mobility of the emerging nation-states, such as France. It was a wealthy, capitalist society, which was easily able to raise more tax revenues than nation-states with several times its population. On the military side, although it had no regular army or militia, Venice had for several centuries the most powerful navy in the world, with bases around the eastern Mediterranean to protect its far-ranging commercial interests.

However, by the 18th century, the “myth of Venice” had become tarnished, as the city acquired a reputation for civic decay. Hamilton and Madison wrote disparagingly about it in The Federalist, the latter claiming that the city did not meet the definition of a republic. Thus, coming back to that earlier question, why was Venice’s constitution described as such by so many? Madison’s own definition in No. 39 of The Federalist, in which he rejects characterizing Venice as a republic, emphasizes that the governing authority in a republic must come directly or indirectly from the “great body of the people,” and the government must be administered by persons holding office during good behavior.

It is true that the organs of state in Venice were controlled by a noble elite of at most 5% of the population. Yet, the general exclusion of women, children, convicts, and slaves from governance in the American states, along with the impact on free male adults of the property qualifications imposed by many states on voting well into the 19th century, undercuts Madison’s claim that the American states were republics. Moreover, in Venice the cittadini carried out the ordinary operations of the government and were, therefore, a significant force in the execution of government policy. Looking at terms of office, with the exception of the doge’s life tenure, office holders in Venice were usually selected for annual terms, unlike the longer terms of office for President, Representatives, Senators, and judges in the United States. Indeed, it was the very length of the tenures of officers of the general government which the Anti-federalists decried as unrepublican, and which Madison defended.

That is not to say that Madison’s focus is misplaced. It is a necessary, but not sufficient, condition of a republic that there is a significant element of popular participation, albeit one not amenable to precise reckoning. As important, however, is that the government is not unlimited and power is not concentrated in a single person, class, or body of persons. The balance and separation of powers which Madison considers to be crucial in The Federalist Numbers 10 and 51, when he defends against the charge that the Constitution is a prescription for tyranny, is also clearly present in Venice’s, one might say Byzantine, structure of overlapping entities checking and supervising each other. It was a structure that, by Madison’s time had, with some alterations, served the city for 500 years since the Serrata, and another three centuries since its independence from Byzantium before then. It took Napoleon’s mass army, the military might of a large nation-state, to end Venice’s long-functioning, but obsolete city-state constitution.

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.

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Guest Essayist: Joerg Knipprath


Rome, the city-state on the Tiber River, like her counterparts in Greece, had no cohesive written constitution. There were the Twelve Tables from around 450 B.C., of which mere fragments remain, which are sometimes presented as the Roman Republic’s constitution. However, the tablets were more an attempt to codify certain principles of criminal and civil law, rather than to lay the foundation for a political system. However, they did begin the practice in Roman law of published codes enacted by a legislative body and accessible to all citizens, which remained a core characteristic of European legal systems influenced by Rome.

Much of Rome’s political constitution by contrast was the product of custom. That custom evolved through responses to changes in the society’s social structure, through the citizens’ tacit acceptance of political bodies that arose from critical events, and by incorporating founding legends. An example of the first was the change in sources of wealth and the nature of the aristocracy comprising the leading families. The second would include the expulsion of Rome’s last king, the Etruscan Tarquin the Proud, at the end of the 6th century B.C. That event resulted immediately in the preeminence of the established aristocratic council, the Senate, and, a half-century later, in the emergence of the assemblies as sources of political influence for the commoners. The last would be the creation of institutions (such as the Senate and the tribunes) and practices said to go back to the 8th century B.C., and the acts of Rome’s first king, the legendary Romulus, and his successor, the Sabine Numa Pompilius.

While the writings of historians such as Livy and Sallust and political leaders such as Cicero are instructive, the single most authoritative source for the Roman constitution is its earliest expositor, the great Greek historian and father of constitutional analysis, Polybius of Megalopolis. Born in 200 B.C., he became a prominent politician in the Achaean League, of which his city was a member. The League, had for some years, had to tread a narrow path in relations with Rome, by then in control of most of Greece. With some exceptions, the leaders of the Greek cities generally were less than thrilled about Roman control. Such lack of enthusiasm raised suspicions and put those politicians in potential danger.

After Rome in 168 B.C. defeated Macedon for the third and final time, the Senate decided to break up that kingdom into four tributary republics. Rome also “went Roman” on the Greeks allied with Macedon, destroying 70 towns in the region of Epirus and selling a reported 150,000 into slavery. Rome’s Greek “allies” fared better but were disciplined for their lack of commitment. Polybius was among the 1000 Achaean leaders suspected of “fence-sitting” who were deported. Most were sent to provincial towns away from Greece.

Polybius was allowed to stay in Rome itself, due to the intervention of two powerful Roman leaders, Scipio Aemilianus and his brother. The developing friendship between Scipio and Polybius gave the latter access to the Roman elite. His learning and gregarious and active personality further solidified those connections. Polybius, in turn, became a committed advocate for the city and its system of government. As well, his favored status gave him extensive freedom to travel. When the Senate authorized the Greeks to return to their cities, Polybius declined. Instead, he eventually accompanied his friend Scipio to North Africa when the latter was given the command of the army sent to destroy Carthage in the Third Punic War. Polybius was well acquainted with Rome, its history, and its institutions, and he wrote about them with affinity.

The Histories is Polybius’s major influential work. It was a massive undertaking of 40 books, although one needs to keep in mind that the physical limitations of papyrus scrolls meant that a “book” might be more like a quite lengthy chapter today, and the entire effort perhaps a couple of thousand pages. The first five books are fully available, with more or less extensive excerpts from many others. Some are entirely lost. Most of the work covers Roman history from the Second Punic War (against Hannibal) to Polybius’s time. Most important to constitutional analysis is Book 6, the numerous preserved fragments of which cover, in the estimate of one authority, about two-thirds of the book. Missing is a thorough analysis of the Roman assemblies, in contrast to his discussion of other elements of the Roman constitution.

The constitution Polybius describes is that of his time, after Rome has finalized its drive for dominance of the Mediterranean world. The Punic Wars lie in the past, Carthage has been eradicated, and the destructive Social Wars and civil wars are in the future. Romans’ confidence in their institutions is high, and the republic which Polybius describes is at its political zenith. As was the habit of classic Greek observers of political systems, Polybius believed in a duality of good and bad forms of government, with an inexorable process of degeneration between those forms. But, unlike, for example, Plato and Aristotle, he claimed to see in the Roman constitution a system resistant to such degeneration. He also observed that states commonly moved through those forms sequentially and even attempted an anthropological explanation for the origins of government. Thus, he argued an archaic form of monarchy emerged when the physically dominant member of a primitive band of humans took command.

As societies become more sophisticated, that archaic form of tribal leadership proves inadequate. A more stable form of kingship emerges, one based on reason and excellence of judgment, which, in turn, fosters consent of the governed. Initially, such kings are elected for life. Eventually, the dynastic impulse of rulers to pass their office from father to son leads to kingship often becoming hereditary. Over time, such dynastic succession induces a sense of superiority and entitlement, which results in formal distinctions and ceremonies to set the royals apart from commoners. Worse, these royals begin to consider themselves exempt from rules and morals. As ordinary people begin to react with disgust at such licentiousness and arrogance, the ruler responds with anger and force. Thus, the inevitable outgrowth of kingship is tyranny.

The wealthy and talented members of respected families chafe at the tyrant’s rule the most. Conspiracies develop and the tyrant is replaced by a ruling class of high-minded men, the aristocracy. Recalling Plato’s criticism of oligarchy, Polybius saw the degeneration as the fault of the sons, not the fathers. As he wrote, the descendants “had no conception of hardship, and just as little of political equality or the right of any citizen to speak his mind, because all their lives they had been surrounded by their fathers’ powers and privileges.” Soon enough, the government controlled by supremely moral and wise men gives way to a self-interested oligarchy “dedicated … to rapaciousness and unscrupulous money-making, or to drinking and the non-stop partying that goes with it ….”

The general populace, encouraged in their passions by manipulative leaders, murders or banishes the oligarchs and itself takes on the responsibilities of government. Democracy, according to Polybius, is based on majority rule, but a majority tempered by “the traditional values of piety towards the gods, care of parents, respect for elders, and obedience to the laws.” This sounds strikingly like the admonition of republicans through the ages, that self-government requires self-restraint, focus on the common good and general welfare, and a strong moral and religious framework to promote republican virtue. John Adams’s observation that the American system was fit only for a moral and religious people is one example particularly relevant to the American experience. The exhortation in the third article of the great North-West Ordinance of 1787, about “Religion, morality, and knowledge being necessary to good government and the happiness of mankind” is another.

Regrettably, such values prove to be in short supply, and the population of the democracy, now encouraged in their delusions by manipulative politicians, believes instead that it has “the right to follow every whim and inclination.” Those ambitious for power and wealth seek to get ahead by corrupting the people with money to obtain their support. The common people become greedy for such largesse, and democratic self-government degenerates into ochlocracy (“mob rule”). As Polybius described the fate of democracy, “For once people had grown accustomed to eating off others’ tables and expected their daily needs to be met, then, when they found someone to champion their cause … they instituted government by force: they banded together and set about murdering, banishing, and redistributing land, until they were reduced to a bestial state and once more gained a monarchic master.” This is the predictable and depressing lifecycle of political systems. Polybius would have nodded knowingly, had he been present at Benjamin Franklin’s reply to his interlocutor about the type of government produced at the Philadelphia Convention, “A republic, Madam; if you can keep it.”

Fortunately, such a cycle of corrupt and degenerate forms of government could be avoided, and Rome showed the way. Polybius exalted Rome as a “mixed” government, composed of essential elements of all taxonomic forms, monarchy, aristocracy, and democracy. Unlike Plato’s fictitious ideal republic, Rome’s was a functioning system which had proved its mettle for centuries. Unlike Aristotle’s description of the Athenian government as a workable, but uneasy, mixture of popular and oligarchic elements in the Assembly on one side and the Council of 500 and other institutions on the other, Rome succeeded because of its more developed balance of powers. In that, according to Polybius, Rome’s constitution resembled that of Sparta, although Rome’s developed by natural evolution rather than from a conscious decision by a wise lawgiver like the mythical Spartan Lycurgus. Polybius regarded Sparta’s system as particularly enlightened and wrote with great favor about it, although he recognized that the structure did not prevent Spartan hubris from engaging in ultimately disastrous foreign military adventures. In light of Sparta’s legal totalitarianism, it is ironic that Polybius ascribed to this mixed government a long history of liberty in Sparta. Perhaps by this he meant independence. In any event, his characterization of mixed government became the classic understanding of what today would be called a system of limited government.

The preeminent political institution of the Roman Republic was the Senate. Although eligibility changed over time as membership was opened up to the more prominent plebeian class, the equites ((knights), the Senate was primarily the institution of Rome’s aristocratic families, the patricians. The body had begun as a council composed of 100 men chosen by Romulus from the leading land-holding families as city fathers (“patres“). Initially, it was solely a hereditary body, but eventually the primary determinant, if one sought admission to the Senate, became landed wealth. The Senate had the power over appropriations. The civil functionaries had to obtain Senate consent for all expenditures, most importantly for the massive funds spent every few years on the repair and construction of public buildings. Major crimes, such as treason, conspiracy, and gang murder were under Senate jurisdiction. Foreign relations, colonial administration, and matters of war and peace were the domain of the Senate.

Striking about the Senate was that it had no formal role except to act as an advisory council, the same as under the earlier monarchy. In reality, it was the single most powerful body in the republic, due to its class ties and consciousness, its continuous sessions, and its life membership. Moreover, the mos maiorum (the “custom of the ancestors”), the powerful force of tradition in the Roman constitution, sustained the legitimacy of the Senate. A senatus consultum was merely an advisory opinion by the Senate, but such an opinion was required for any law proposed for adoption by an assembly. Although a consultum could be overridden by the assembly or could be vetoed by a plebeian tribune, in reality an unfavorable consultum usually spelled the end of the proposed law or, if enacted, caused it not to be enforced by the magistrates. Polybius noted, if one were to look solely at the Senate, one would believe that Rome was an aristocracy. Or, in the more jaundiced view of some historians who claimed that the Senate was actually controlled by a tightly knit small hereditary group of families, it was an oligarchy.

There was also, however, another long tradition in Rome’s constitution, “What touches all must be approved by all.” As Cicero put it in Republic, “res publica, res populi.” The consent of the people was given through the assemblies. Polybius described their role in assessing taxes, the ratification of treaties, actual declaration of war, and confirming the appointment of officials. Moreover, the people had a role in legal processes. All death penalties had to be approved by an assembly. The same held for more general criminal cases where a substantial fine would be imposed. He concluded that, from this perspective, one might declare Rome a democracy.

There were various assemblies over time, and Roman citizens could attend any. Histories does not have much discussion of them. This might be because Polybius was not a great admirer of those bodies or, more simply, because his discussion is in the chapters which have been lost. These explanations are not contradictory, and there is evidence for both. One such body was the Centuriate Assembly, the oldest. It can be traced to a 6th century B.C. king and was modeled on the centuriae, the military units of 100 infantry and 10 cavalry that each of the ten subunits of the three “tribes” of Rome had to provide. As in Athens, these tribes were not based on ethnicity but were simply geographic constituencies within the city.

As the city grew, so did the number of tribes and the size of the voting units. For a long time, there were 193 “centuries.” They were organized on the basis of land ownership, wealth, and age, which, in turn, was related to the type of military service and associated weaponry of the members. At the top were the equites (knights), who were wealthy enough to provide horses and served in the cavalry. They had 18 centuries. Next were 170 centuries for the infantry, divided further into five classes based on their members’ wealth and weaponry. Below them were five centuries for the proletarii (the poor), those who could not supply weapons and typically were assigned to the navy.

In contrast to the Athenian ekklesia, in the Roman system the citizens did not vote simply as individuals. Although they met in the same place, the actual voting took place within their respective centuries. Each century had one vote, determined by the majority vote of citizens assigned to that century. The Assembly’s approval depended on a majority vote of the centuries, not of the undifferentiated citizens. With 193 centuries, the votes of majorities in 97 of those centuries would be required to approve a measure. In fact, voting was heavily skewed in favor of the equites and the wealthiest layer of the others. Between them, they were assigned 98 centuries, on the reasoning that those who provided the most financial support and had the most to lose in military service should have the most influence. Moreover, voting was done in class order, with the centuries of the equites voting first, those of the wealthiest class of others voting next, followed by the next lower group, and so on. The poor voted last. As a result, the vote of the poor rarely mattered. Class solidarity, the number of centuries weighted towards the wealthy, and the staggered voting meant that most issues would be decided well before the smaller landowners or the poor voted. Even the reforms of the 3rd century B.C., which expanded the number of centuries for the landowning classes to 350, had little effect on the dominance of the wealthy.

The Assembly could only consider bills which were on the agenda set by the tribunes or the magistrates. The citizens could vote on the proposal but not debate the bill at issue or offer amendments. Finally, all voting was done in the city of Rome. As the city’s domain spread, it became more difficult for any but wealthy citizens to travel to Rome for the duration of the Assembly’s legislative or appointive tasks. Based on his analysis of the system, the historian Scott Gordon doubts that even one-tenth of the 400,000 Roman male citizens at the end of the 2nd century B.C. attended a voting assembly in their lifetimes. The formal powers of the Assembly eventually were transferred to the Senate by the Emperor Tiberius.

There was, however, one mechanism by which the public could express its views, the contio. After a bill was proposed by a tribune, there had to be a period of at least twenty-four days before the Assembly could vote on it. This allowed for informal discussion among citizens of the bill’s merits. Moreover, any tribune could call for a formal meeting, the contio, which all residents, including women, foreigners, and slaves, could attend. The only speakers permitted were those selected by the presiding tribune and usually were senators or various magistrates. Public comment was limited to shouts and other sounds indicating support or opposition.

The final part of the formally operating civil government were judicial, executive, and administrative officials. Chief among them were those sought by ambitious Romans embarked on the cursus honorum, the “path of honors” along a sequence of offices, the apex of which was the consulship. All were initially open only to those of senatorial rank, but eligibility was expanded in the 4th century B.C. In practice, only scions of the wealthy families were likely to be elected, especially as consul. Thus, Cicero, a non-patrician resident of a non-Roman town in Latium and member of the knightly class, the highest of the plebeian classes, climbed this ladder of success quickly.

Election to these offices was by the Assembly for a one-year term, with minimum age requirements. The lowest office was that of the quaestor, who had to be 30 years old and have completed several years of military service. Quaestors were in charge of financial administration, a source of influence for further political advancement, and of record-keeping for the state archives. Above the quaestor was the aedile, in charge of public facilities and public festivals and celebrations. The next rung in the ladder was the praetor, a multi-function office. Praetors performed judicial functions but also could step into the executive role of consul if both of the consuls were absent from the city. As jurists, praetors had significant influence on the development of the body of Roman law. After his term ended, a praetor could also be awarded a foreign post as propraetor. This included military power, with full governing authority in the province. There was no term limit for that office.

At the end of the cursus honorum beckoned the consulship. The Assembly elected two consuls each year, at least one of whom was usually engaged in military campaigns in the provinces, the consul peregrinus. The one in Rome, the consul urbanus, had no real military function, because armed forces had to be kept some distance from Rome during peacetime, a constitutional limit broken, for example, by Julius Caesar when he crossed the Rubicon River. The consul’s position in the Republic was one of influence, not formal power. Any executive decision could be vetoed by the other consul and any of the ten plebeian tribunes, Moreover, he could not override the actions of other magistrates. However, his status as a member of a leading family and constant interaction with the Senate, plus the fact that he had survived the competition to reach the apex of the cursus honorum gave his opinions and actions great constitutional legitimacy. After his one-year term ended, a consul could not be re-elected for at least ten years, until the general Marius destroyed that informal constitutional limit in the 1st century B.C. After his term, a consul could be elected as proconsul, the highest military and administrative position in the provinces, with no term limits. This usually arose from the extended military campaigns abroad, which necessitated continuity of command.

Finally, outside the formal cursus honorum were the tribuni plebis, ultimately ten in number, who originally represented the “tribes” or sections of the city. Tribunes spoke for the political interests of the plebeians. They were elected to one-year terms by the Assembly. In that capacity, they were responsible to assist any plebeian who had been wronged by a magistrate. This included the power to overrule an unjust judicial order of punishment. The tribunes’ political power extended to vetoing any bills proposed to the Assembly by other magistrates and to consulta of the Senate deemed contrary to the plebeians’ interests. Eventually, they became members of the Senate and set the agenda for that body. While they formally represented the plebeian classes, with some exceptions such as the famous Gracchi brothers, they were no radicals. They were typically drawn from the patricians and the knights, the high-status classes, and shared their interests. As well, their potentially significant power was impeded by the fact that any affirmative act of a tribune could be vetoed by any of his nine colleagues. In reality, tribunes could act as a shield for the commoners against the wealthy, but rarely as an effective sword to advance the interests of the lower classes in opposition to the wealthy.

One additional aspect of the Republic’s constitutional practices bears mention. Every system has to deal with the state of emergency that can arise over time, the most common of which is war, either foreign or civil. For a long time, in such exceptional circumstances the Roman Senate would formally appoint a dictator to rule by decree for six months. That practice was discontinued by the end of the 3rd century B.C. Instead, during later troubles, such as those of the civil wars of the 1st century B.C., such exceptional powers would be authorized under the terms of a senatus consultum ultimum, a “final act of the Senate” needed to protect the Republic.

Polybius saw in the structure of the magistracies, especially in the consuls, the monarchic element that was part of the “balance” in the Republic’s constitution. In the various interactions of Senate, Assembly, and tribunes, and in their mutual formal and practical limitations, he perceived a system of “checks” on the power of any of them. In some of the particulars, he was off the mark. For example, unlike the Spartan kings to which he compared the consuls, the latter served for only one year, not life. Moreover, the consuls lacked the formal powers one normally associates with kingship. On the whole, however, his assessment has merit.

Historians have long debated the causes of the Republic’s demise. There is certainly no reason to limit the matter to one such cause. Among them was the collapse of broadly-distributed land ownership which sustained a “middle class” in an agricultural republic. As the wealthy became more so regardless of the source, they bought up more land. Land was a reflection of one’s status. Indeed, because commercial ventures were formally prohibited for Senators, one needed land to join that body. The demand raised the price of land and the taxes imposed on it. The growth of these large latifundia drove the previous smaller landowners into the city. There, they became part of the urban proletariate and competed for employment with the large and growing number of slaves acquired through foreign conquests and with other foreigners attracted to the increasingly imperial city.

Another cause was the opportunity for power and wealth afforded to successful generals operating as proconsuls in the provinces. With the troops often ill-paid by Rome, local taxes were extracted by these commanders and used to pay the troops directly. Loyalties became redirected from the city to the commander. The republican slogan SPQR (Senatus Populusque Romanus), “the Senate and the People of Rome,” which appeared on the standards of the legions, was supplanted by the reality that, “You take the king’s silver, you become the king’s man.” Especially as those troops were increasingly formed from poor Roman volunteers or foreigners, especially after the military reforms of Gaius Marius around the turn of the 1st century B.C., it became easier for generals to use those professional troops—or threaten to do so—against the city itself and to rule by force. Marius himself, and his erstwhile protégée Sulla, set unfortunate examples.

Perhaps most significant was the fundamental change in the political and social conditions of Rome. Consistent with Polybius’s theory, the societal degeneration about which he had warned as the inevitable result of the democratization of politics and the weakening of the population’s character brought about thereby, in fact occurred a couple of generations after his death. The impoverishment of a large portion of society and the resultant dependency on public largesse for survival, made those citizens susceptible to the slogans and programs of the populares, such as Julius Caesar and other, more dangerous demagogues. The bloody competition among families of the oligarchic upper classes, as shown in the Social Wars and the proscriptions of the military commanders Marius and Sulla, contributed to the chaos which sent the Republic on the path to the monarchy of the Empire.

The same events that brought about that radical social transformation also manifested themselves in the essential incongruity of governing a huge multi-cultural empire through institutions designed for a small city-state on the Tiber River. The notion of “community,” with shared traditions, civic and religious, and an ethic of sacrifice necessary to sustain the civic engagement at the core of real self-government, is eroded in the chaos of ethnic, linguistic, religious, and cultural diversity and the impersonality of large numbers. Had the Roman elite been willing to open up its political institutions and to extend citizenship and formal participation in the political system to all parts of their domain sufficiently and in a timely manner, a republican structure of sorts might have survived. As it was, the city had become an empire in fact well before its political structure changed from Polybius’s republic to Octavian’s monarchy.

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.

 

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It has been said that Stoic metaphysics was the state philosophy of ancient Rome. While perhaps an overstatement, the point is well taken. Rome did not achieve the prominence of the Greeks in original philosophy, but there were a number of outstanding expositors who adapted Stoic principles to Roman conditions. Seneca the Younger, a wealthy Roman statesman, dramatist, and tutor to the future emperor Nero; Epictetus, born as a slave, but freed by his wealthy master on reaching adulthood; and Marcus Aurelius, known as the last of the “Five Good Emperors” of Rome, were particularly influential Roman Stoics.

The absorption of the Greek city-states into the Macedonian Kingdom of Philip and his successors in the 4th century B.C. shocked the Greeks’ self-regard. Hellenic culture for centuries had emphasized the special status of citizenship in the polis, and its necessity for achieving eudaimonia, human flourishing. The polis was not just “political” in the modern sense. It was a “community” in all manner, political, yes, but also social, religious, and economic. Aristotle associated such community with a true form of friendship, wherein one acts for the friend’s benefit. Plato and Aristotle both concerned themselves at length with what constitutes such a community that is suitable for a fulfilled life. For Plato, the city was the individual writ large, which formed a key component of his description of the ideal government in his Republic. For Aristotle, politics was an extension of ethics. The moral and the political, the personal and the public, were joined. The teaching and practice of individual virtue (arete—the root word for aristocracy) were necessary for a just society, and a polis operating on that basis created the conditions for individual virtue to flourish. Those outside the polis, be they hermits, bandits, or barbarians, and no matter their wealth or military prowess, could not attain that level of full human development.

The Macedonian occupiers were not much different than the Greeks and, such as Alexander, were hardly ignorant of Greek ideas or unsympathetic to Greek social and political arrangements. Moreover, the Greek poleis did not vanish, and ordinary daily life continued. Still, after unsuccessful attempts to rid themselves of their Macedonian overlords, it became clear that the Greeks were just one group competing with others for influence in a new empire. Politics being a branch of ethics, the ideal for the Greeks had been to do politics “right.” With the Macedonian success, it seemed that the foundation of the entire Greek project had collapsed.

The result was a refocus of the meaning of life from the ultimately outward-looking virtue ethics of Aristotle and the vigorous political atmosphere of the polis. In this psychological confusion and philosophic chaos arose several schools. One, the Skeptics, rejected the idea that either the senses or reason can give an accurate portrayal of reality. Everything is arbitrary and illusionary, truth cannot arise from such illusions, no assertion can claim more intrinsic value than any other, and everything devolves into a matter of relative power: law, right, morality, speech, and art. Such a valueless relativism can expose weaknesses in the assumptions and assertions of metaphysical structures, but its nihilism is self-defeating in that it provides no ethical basis for a stable social order or workable guide for personal excellence.

Another group was the Cynics, who responded to the psychological shock of the collapse of the city-state by rejecting it. The correct life was to understand the illusory and changing nature of civilizational order and withdraw from it. Life must be lived according to the dictates of nature, through reason, freedom, and self-sufficiency. The good life is not a project of study and speculation, but practice (askesis). Live modestly through your own toil so that you may speak freely, unperturbed by the turmoil and illusions around you. One of the most prominent Cynics, Diogenes, allegedly lived in a rain barrel in the Athenian market and survived through gifts and by foraging and begging. Social arrangements and conventions are not necessarily inimical to this quest, but they often hide the way. Thus, it becomes the Cynic’s duty to light the way, as Diogenes sought to do with his lamp, by exposing and ridiculing such conventions. The Cynics saw themselves no longer as citizens of the polis, but as citizens of the world.

While principled, the Cynics’ grim lifestyle in order to “speak truth to power” was not for most. An alternative school was founded by Epicurus in the late 4th century B.C. The Epicureans urged people to focus foremost on themselves to achieve the good life. The gods have turned away from the city, political decisions are made in royal capitals far away, and the only control is what you have over your actions. Thus, obeying rules, laws, and customs is practically useful but should not be a matter of concern. To live the good life was to obtain pleasure, the highest end. “Pleasure” is not to be understood as we often do as some form of sensory stimulation. Rather, it was to achieve a state of tranquility (ataraxia) and absence of pain. This ultimate form of happiness would come through a life of domestic comfort, learning about the world around us, and limiting one’s desires. Crucially, Epicureans avoided the turbulence of politics, because such pursuits would conflict with the goal of achieving peace of mind. The best one could hope for in this life was good health, good food, and good friends.

Stoic philosophy was an eclectic approach, which borrowed from Plato, Aristotle, and competing contemporary investigations of ethics and epistemology. Its name came from a school established by Zeno, a native of Citium on Cyprus, who began teaching in Athens around 300 B.C. The “school” met on a covered colonnaded walkway, the stoa poikile, near the marketplace of Athens. Its 500 years of influence are usually divided into three eras (Early, Middle, and Late), which eras broadly correspond to changes from the austere fundamentalist teachings of its ascetic founder into a practical system of ethics accessible to more than wise and self-abnegating sages.

There were two key aspects to Stoicism. First, at an individual level, there was apatheia. It would be massively misleading to equate this with our term “apathy.” Apathy is negative, conveying passivity or indifference. Apatheia means a conscious effort to achieve a state of mind freed from the disturbance of the passions and instincts. It is equanimity in the face of life’s challenges. The Stoic sage would “suffer the slings and arrows of outrageous fortune” over which he has no control and focus instead on his own actions. Reason being man’s distinctive and most highly evolved innate feature, the Stoic must train himself to live life in accordance with nature and reason. He must control his passions and avoid luxuries and material distractions that would lead to disappointments and frustrations. His happiness is within himself. The virtuous life is a simple life, achieved through constant discipline “in accordance with rational insight into man’s essential nature.”

Second was universalism. Hellenic culture became Hellenistic culture, as Greek ideas and practices were adapted to the new world order, as the polis became the cosmopolis. A Stoic saw himself in two ways. In the political realm, he was a citizen of his city or state; in his self, he was a human. As Marcus Aurelius expressed it, “My city and country, so far as I am Antoninus [a title for emperor—ed.], is Rome, but so far as I am a man, it is the world.” Stoicism, unlike its Platonic and Aristotelian sources insisted that the universe was governed by law which applied equally to all and raised all to equal status, a “universal brotherhood of man.” This revolutionary claim would profoundly influence Roman and Christian ideas thereafter.

Stoicism differed from Skepticism in that it rejected the latter’s nihilistic pessimism that life was simply a competition for power. It projected a vision of personal improvement and sought to construct a positive path towards happiness within a universal order of moral truth. It differed from the Cynics in that Stoicism did not reject the basic legitimacy of the state and its laws and conventions or urge withdrawal from the public sphere. Rather, the Stoics separated the universal moral order, by which each person’s individual conduct must be measured, from the reality of the political world and the obligation to obey the laws of the community. Stoics did not reject the secular authority or make a point to ridicule it. From a Christian perspective, it was not exactly “Render unto Caesar the things that are Caesar’s, and unto God the things that are God’s.” But it was close enough, coming from a pagan philosophy.

Finally, the Stoics differed from the Epicureans. The latter’s goal of a tranquil private life through the pursuit of health, learning, good food, and good company was at odds with the former’s demands of a more disciplined private life of constant self-reflection and self-improvement, plus the continuing duty to shoulder one’s obligations under the civic law. Those differences made Stoicism much more attractive than Epicureanism to the average Roman. The Roman upper classes might well be drawn to the Epicurean vision, but Stoicism could appeal to more than the leisure class. Most significant, with its emphasis on self-reliance, simplicity, and service, Stoicism more closely reflected the Roman sense of self during a half-millennium of the Republic and the early Empire. The historian Will Durant observed, “A civilization is born stoic and dies epicurean.” By that he meant that civilizations degenerate. As he explained, “[C]ivilizations begin with religion and stoicism; they end with skepticism and unbelief, and the undisciplined pursuit of individual pleasure.” Though at times turbulent and seeming to veer into dissolution as the political edifice of the Roman Republic became Octavian’s principate, the Roman culture did not yet fundamentally change, due in part to the stability provided by Stoic philosophy.

Stoicism fit well the Roman character imagined by the Romans themselves and reflected in their laws and history. As the historian J.S. McClelland wrote, “The Greeks might be very good at talking about the connection between good character and good government, but the Romans did not have to bother much about talking about it because they were its living proof.” Not unlike Sparta, Rome had always had a strong martial component to its policies, which Romans took to be an essential part of their character. It was a masculine, male-dominated culture, and unabashedly so. At the root of virtus, that is, virtue or excellence, is vir, the word for adult male or hero. Stoicism “spoke” to Romans in a way that Epicureanism could not. That said, the Middle and Late Stoic writers from the second century B.C. on were willing to refine some of the school’s rough homespun aspects and accepted that a materially good life was not inconsistent with Stoicism. Self-discipline and self-reflection were key. Moderation, not excess, all in accord with nature and reason, sufficed. Self-deprivation and the ascetic life were not necessary.

American polemicists of the post-Revolutionary War period often associated the Stoic virtues with the Roman Republic and saw those virtues reflected in themselves. This required turning a blind eye to certain fundamental assumptions. For example, as noted, Stoicism separated the universal moral order’s control over private conduct from the need for unquestioning adherence to the state’s laws made for the welfare of the community. For the Americans, a distinction between private morality and virtue on the one hand, and public morality and law on the other was not readily conceivable, at least as an idea. Though at times John Adams was quite doubtful about the capacity of Americans for self-government, in his message to the Massachusetts militia in 1798 he wrote, “Our Constitution was made only for a moral and religious People. It is wholly inadequate to the government of any other.” James Madison writing in The Federalist, No. 55, noted that republican self-government more so than any other form requires sufficient virtue among the people.

There was another, profound, appeal Stoicism had for the Romans, which connected to their views of good government. Rome prided itself on its balanced republican government, a government meant for a cohesive community, that is, a city-state. “The Eternal City,” the poet Tibullus called it in the 1st century B.C., and so it became commonly known through the works of Virgil and Ovid during the reign of Octavian, long after it had ceased to be a mere city on the Tiber and become an empire in all but name. Indeed, Octavian styled himself princeps senatus, the highest ranked senator, avoided monarchical titles and insignia, and purported to “restore” the Roman Republic in 27 B.C. The trappings of the republican system were maintained, some for centuries.

As in the earlier Greek city-states, Roman citizens had the right and the duty to participate in their governance. Stoicism called on its adherents to involve themselves in res publica, public affairs, working for the benefit of the whole, not themselves, a commitment of personal sacrifice and service. This mirrored basic obligations of Roman citizenship, from military service to political engagement to contribution for public works. These burdens with their physical and economic sacrifices were to be borne with equanimity. Marcus Aurelius, the last great Stoic sage, spent a large portion of his reign on the frontier leading armies against invading German tribes. It is said that he wrote his famous inward-directed Meditations on Stoic ideas and practice during those campaigns.

An important component of the Roman political system was law, both as a collection of concrete commands and as an idea. As noted, Romans were not, by and large, known for original contributions to Western philosophy. For them, that was the role of the Greeks. They were, however, exceptional jurists. As they gained territory, the need to administer that territory required a system of law capable of adapting to foreign conditions. As they gained dominion over cultures beyond the Italian peninsula, and as Roman trade ventured to even farther corners of the world, the Roman law might differ in particulars from that of the local population. At the same time, there appeared to be certain commonalities to the Roman law and those of disparate communities. For the politicians, such commonalities could help unify the realm through a “common law” and support the legitimacy of Rome and its administrators. For the merchants, it could help make commercial dealings more predictable and lower their transaction costs. For the jurists, it raised the possibility of universal influences or elements in the concept of law itself.

The Stoics provided the framework for systematic exploration of that possibility. Stoicism, it may be recalled, had a cosmopolitan, indeed universal, outlook. The Stoic universe was an orderly place, governed by immutable, eternal, constant principles. In other words, an eternal law. At the center was the universal moral law. Law in general had its basis in nature, not in the arbitrary creative will of a human ruler or the cacophony of mutually cancelling irrationalities of the multitude. Humans have an inborn notion of right and wrong. Unlike Adam Smith’s theory of moral sentiments, which he based on our social nature, the Stoics ascribed this to our essential human nature, with each individual participating in this universal moral order. There was an essential equality to Stoicism that eliminated the lines between ruler and subject, man and woman, freeman and slave. Gone was Aristotle’s attempt to explain slavery with the claim that the nature of some conduced them to slavery.

Of course, this only applied to one’s ability to achieve individual virtue through Stoic self-discipline in the personal realm. The outside world still maintained those distinctions in positive law. Many were slaves in Rome. While the Stoics could consider slaves their brethren as members of the human community within the moral law, they accepted the separate obligation imposed on them to obey the political world in its flawed, but real, condition. Epictetus, himself a former slave, blurred that duality when he declared slavery laws the laws of the dead, a crime. But for most, the reality of despotic and corrupt government, the suppression of freedom, and prevalence of slavery were the actions of others over which the Stoic had no control and the consequences of which he had to deal with as best he could through apatheia.

Still, the concept of eternal law, possessed of inherent rightness, and connected to human nature, had some profound implications for human governance and freedom. The universal order is right reason itself and exists within our nature, accessible to us through our own reason. The Apostle Paul addressed this from a Christian perspective in Romans 2:14 and 15: “For when the Gentiles who do not have the law, by nature observe the prescriptions of the law, they are a law for themselves even though they do not have the law. They show that the demands of the law are written on their hearts ….” Proper human law, in its essential principles, is a practical reflection of this higher moral law and necessary for good government. Despite the shortcomings of actual Roman politics, this set a standard.

Because the moral law is universal, eternal and beyond the control of human rulers, it implies a lawgiver of similar qualities. The character of the Stoic “god” was often unclear and differed among various Stoic philosophers. It was certainly not the gods of the Greek and Roman civic religions, with their all-too-human character failings and pathological urges to interfere, usually disastrously, in human lives. Nor was it the personal and loving Christian God of the Gospels, cognizant of each creature within His creation and particularly interested in the flourishing of those created in His image. Rather, the Stoic god is best viewed as a force which created and through its presence maintained the universal order. This force has been described variously as a creative fire, world soul, pneuma (breath), or logos (word). The last two are particularly interesting in relation to Christian writings. Logos not only meant “word” but also the reason, cause, or ultimate purpose or principle of something. The Stoic moral order was an expression of divine reason and accessible to us through the reason that is part of our nature.

One of the foremost Roman commentators and synthesizers of Stoic doctrine in law was Cicero, the great lawyer, philosopher, and statesman. Cicero claimed he was not a Stoic. He seemed to have seen himself as a follower of contemporary versions of Plato’s ideas. Indeed, his two major works on good government, The Republic and Laws, paralleled the titles of Plato’s major works on politics. However, his introduction of the ius naturale (natural law) to Roman jurisprudence, a fundamental step in human freedom, owes much to the Stoics. Note his justification for the right of self-defense: “This, therefore, is a law, O judges, not written, but born with us, which we have not learnt, or received by tradition, or read, but which we have taken and sucked in and imbibed from nature herself; a law which we were not taught, but to which we were made, which we were not trained in, but which is ingrained in us ….”

Or consider the following that vice and virtue are natural, not mere artifices: “[In] fact we can perceive the difference between good laws and bad by referring them to no other standard than Nature: indeed, it is not merely Justice and Injustice which are distinguished by Nature, but also and without exception things which are honorable and dishonorable. For since an intelligence common to us all makes things known to us and formulates them in our minds, honorable actions are ascribed by us to virtue, and dishonorable actions to vice; and only a madman would conclude that these judgments are matters of opinion, and not fixed by Nature.”

Perhaps most famous is this passage from The Republic: “True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; … It is a sin to try to alter this law, nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely. We cannot be freed from its obligations by senate or people, and we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times, and there will be one master and ruler, that is, God, [note the use of the singular, not the plural associated with the Roman pantheon—ed.] over us all, for he is the author of this law, its promulgator, and its enforcing judge. Whoever is disobedient is fleeing from himself and denying his human nature, and by reason of this very fact he will suffer the worst penalties, even if he escapes what is commonly considered punishment.”

From these recognitions, it is but a short step “self-evident [truths], that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” A short step conceptually, but centuries in time to realize fully.

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.

 

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In classical studies and terminology, a (political) constitution is a concept that describes how a particular political system operates. It is a descriptive term and refers to actual political entities. It is, therefore, unlike what Americans are accustomed to hearing when that term is used. Rather, we think of The Constitution, a formal founding document which not only describes the skeleton of our political system, but has also attained the status of a normative standard for what is intrinsically proper political action. Thus, we can talk about constitutional law and of rights recognized in that document in defining not just how things are done, but how they ought to be done.

In that, our Constitution is unusual. The ancient Greek cities lacked such formal documents that were self-consciously founding a new political order. However, there were analogous decrees and laws which shaped aspects of government. In that sense, we, too, might say that a statute that organizes a branch of government might be “constitutional,” not in the sense that it is somehow a noble law, and not just that it is within the textual limits of the Constitution. Instead, the term conveys that such a law simply sets up basic procedures to run the government, procedures that people use and, thereby, at least tacitly accept as legitimate. An example might be a statute that establishes a specific system of federal courts.

Moreover, functional descriptions of constitutions must take into account not only formal written rules of government for that entity, but the unwritten customs and practices that shape, refine, or even negate those written rules. Even our formal written Constitution is subject to such informal influences, one prominent form of which is the collection of opinions of Supreme Court justices on the meaning of the words in that document. The ancients, too, were keenly aware of the importance of such long-adhered-to customs to influence the practice of politics and also to give—or deny—legitimacy to political actions. The Greek playwright Sophocles made the clash between a novel royal decree and custom in the form of the “immortal unrecorded laws of God” a central plot device in his play Antigone, a part of the tragic Oedipus Cycle. For the Roman Republic and the early Empire, one must look to the use of constitutional custom through the mos maiorum (the “custom of the ancients” or “practice of the forefathers”) to understand the political order.

As with our own polity, it would be foolish to describe the constitutions of the Greek poleis (city states) as unchanged over the centuries of their existence. Cultural perspectives and societal needs do not remain static. Thus, one must give an evolutionary overview, made more specific through a snapshot of a particular period. When Aristotle (or his students) wrote Athenaion Politeia (the Athenian Constitution), he did just that, providing a history and a contemporary description. As an aside, Aristotle is credited with analyzing 158 Greek constitutions, of which the Athenian is the only one to survive in substantial form. With that number, it is more likely that Aristotle’s students compiled these surveys, perhaps on behalf of their teacher’s research.

As the Greek city states evolved, so did their governments. The chieftain or kingly form of government under a basileus, limited often by powerful individual noble warriors, prominent in Homer’s Iliad, typically gave way to an aristocracy based on land ownership. In Athens, as later in Rome and in the history of Europe and North America, there were further pressures towards democratization, influenced by the growth of commerce and sea trade. Both Plato in Politeia (the “Republic”) and Aristotle in Politika (the “Politics”) wrote about these trends. Neither was a fan. Plato, especially, saw these developments as evidence of degeneration.

While much of this history is murky and in shadows, apparently the major power of government in early Athens was in the Areopagus, a council of aristocratic elders with legislative and judicial powers. Significant constitutional changes in Athens began in 621-620 B.C. with the Code of Draco (who may have been an individual or a signifier for a priestly class), which solidified the powers of the holders of large estates in a legislative Council of 400. This body was selected by lot from the class of those who, according to the Code, could supply a certain level of military equipment.

Solon, regarded by many historians as the founder of Athenian democracy, undertook various political reforms in the early 6th century B.C. One was to deprive the Areopagus of much of its judicial power. Instead, jury courts took over that role, including the ability to adjudicate suits against public officials for unjust treatment. The most significant reform was to expand political participation based on size of land ownership. Four classes were created. All, even the landless laborers could take part in the ekklesia (assembly) and the jury courts. However, only the top two classes could hold the significant public offices. Members of the third class could hold minor administrative positions. In effect, this diminished the role of the hereditary aristocracy and entrenched the wealthier oligarchy of large landowners. The Council of 400 controlled the agenda of the assembly, thereby ensuring more control by the landed elite.

The process of democratization continued with the reforms by the military leader Kleisthenes who came to political power in 507 B.C. He organized the citizens in Athens and the surrounding area into ten “tribes.” While Athens had many residents from other Greek cities and from non-Greek areas, these “metics” were not counted. Tribe is not to be understood as an ethnic concept, but merely as a convenient label for a geographic constituency, such as a community or district. Kleisthenes eliminated the Council of 400 and replaced it with the boule, a Council of 500. Each tribe would have 50 seats in that council, chosen annually by lot from male citizens over 30 years old. The Council was a powerful entity, in charge of fiscal administration. It also set the agenda for the Assembly. Council members could serve only twice in their lifetimes. Kleisthenes had his reforms approved by vote of the Assembly, which gave particular legitimacy to the rules and increased the Assembly’s constitutional significance. However, the nine archons, the senior civil officials, as well as other magistrate offices, such as judges, were still drawn from the nobility and the wealthy landowners.

During the 5th century B.C., further reforms occurred under Ephialtes and Pericles, resulting in what historians often call Athens’s “Golden Age of Pericles.” The Assembly was the focal point of Athenian democracy. It met on a hill near the central market. Sessions were held on four non-consecutive days each Athenian month. There were ten months, with thirty-six days each. A quorum was 6,000 of the estimated 40,000 Athenian male citizens. Anyone could speak on items placed before the Assembly by the Council. Laws generally were adopted by majority vote of hands, though some laws required approval also by a special body drawn by lot from the jury rolls.

This façade of radical democracy must not fool casual observers of Athenian politics. First, there was the matter of demographics. Of the estimated 300,000 residents of Athens and its environs, most were slaves, metics, women, or children. It is estimated that only about 15% were adult male citizens. Second, the members of the Assembly did have final authority to vote, but on proposals shaped by the Council. Finally, business could not have been carried on if thousands of people exercised their right to speak. Thus, informal customs were observed. Speeches on proposals were given by a small number of recognized leading members of the community. These speakers were the “demagogues” (demos means “people”; gogos means “leader”). Initially, the term had a neutral meaning. It soon took on the modern sense, as various individuals sought to gain favor and influence with the voters through inflammatory language, theatrics and emotionalism.

As happens not infrequently, many such spokesmen for the people were from noble families or wealthy businessmen seeking to advance their economic interests. Notorious among them were Alcibiades, known for his charm, wealth, good looks, and Spartan military training; Hyperbolus, namesake of a word that represents theatrical and emotional language, a frequent target of satire by Greek playwrights, and the last person to be “ostracized” (that is, required to leave Athens for ten years); and Cleon, a man who, centuries before William F. Buckley, declared that “states are better governed by the man in the streets than by intellectuals …who… want to appear wiser than the laws…and…often bring ruin on their country.” Such speakers could “demagogue” issues and exploit, exacerbate, and even create divisions within the Athenian populace. However, they also served a useful role in that they were usually well-informed and regular participants in the debates. They could explain to the more casual attendees unfamiliar with the intricacies of Athenian government and politics the issues of the day. It is reported that ordinary Athenians, not known to be reticent in matters of political debate, were anything but shy about vocalizing their opinions about the various speakers through shouts, jeers, cheers, laughter, and a multitude of other sounds even if they did not make speeches.

As noted, the Assembly’s power was not unrestricted. The Council of 500 controlled its agenda. More precisely, since a body of five hundred could not realistically expect to control the shaping of public policy and its administration, it was a standing committee of the Council that performed this work. The standing committee of 50 rotated monthly among the ten tribes which composed the Council.

Athens had no king or president. The archons were senior magistrates and judges. They were selected by lot and, in theory, by the 4th century B.C., any male citizen was eligible for the office. Archons served for one year and thereafter could not be re-selected. Strategoi were the military commanders of the army and navy. Since those positions required particular expertise in war and leadership capabilities, they were not selected by the chancy method of the lot. Rather, the Assembly elected them for one-year terms. Unlike the civil magistrates, because wars operate on their own timetable, military commanders were typically re-elected. At the same time, the Assembly could revoke their commands at any time and for any reason. In addition, Athens had many junior bureaucrats who held their offices longer.

By the end of the fifth century B.C., the jury courts, well-established in the litigious Athenian society, had also taken on a political role. They were in charge of the confirmation process that each official had to undergo before taking office. If challenged on his qualifications, a jury would have to vote by majority to approve the selection. The courts and the Assembly also could hear “denunciations” brought by Athenian citizens against public officials and military commanders after an initial review by the Council. Finally, upon completing his term of office, a public official was subject to a review (euthenai) by an administrative board. If a citizen brought a complaint of mistreatment by the official, that complaint also would be heard by the courts after an initial review by a committee of the Council.

Despite its source in the demos, the Athenian system was not an unrestrained democracy. Such a system would have collapsed quickly, given the size and complexity of the Athenian state by the 6th century B.C. Athens was a “mixed” government (mikte). What brought it to eventual collapse was defeat in the Peloponnesian War at the hands of Sparta, the overextension of its colonial reach, the interference by foreign powers during the 5th and 4th centuries B.C. in the politics of Athens (from Persia to Sparta to Thebes to Macedon), and the usual interest group conflicts that plague societies (rich versus poor, landed versus commercial interests, creditors versus debtors, new elites versus old, traditionalists versus modernists). The social frictions and political instability caused by the violence of the successive factions that controlled Athens in the early 4th century B.C. based on support of, or opposition to, Spartan influence, undermined the system to the point that the city could not resist its eventual assimilation by the Kingdom of Macedon and its successor, the Alexandrian Empire. Both the oligarchic pro-Spartans, such as the Thirty Tyrants, and the democratic anti-Spartans seized the property of defeated political rivals and resorted to death for people suspected of supporting those defeated rivals. It was the democratic faction, after all, that convicted Socrates and sentenced him to death for a trumped-up charge.

All of that said, one must not forget that between the initial democratic stirrings under Draco and the Macedonian occupation, the Athenian democracy functioned three centuries. Even after the end of its independence as a city-state, the Athenian constitution continued, albeit in modified form and with less power abroad.

The Spartan system was superficially similar to the Athenian constitution yet was grounded in some fundamentally different social and political realities. Like some other thoroughly stratified and structured societies, Sparta was highly legalistic. The tight and intrusive control over life that is associated with the “Spartan way” was rooted in law, not tyrannical arbitrariness. Law, in turn rested on tradition, not written statutes, allegedly due to a directive from its possibly fictional founder, Lycurgus.

Spartans attributed the origin of their system to their great “lawgiver,” Lycurgus, supposedly in the 9th century B.C. Because so little is known about Lycurgus, historians have questioned the timing and, indeed, his very existence as a real person. Still, this event lay at the base of Spartan claims that their democracy antedated that of Athens by a couple of centuries.

In some sense, it is curious to imagine Sparta as “democratic,” but there is a basis to that description. The apella was the Spartan Assembly, to which all adult male citizens authorized to bear arms belonged. Moreover, Spartan women were far more equal in status to men than were their Athenian counterparts. While they were not given formal political powers, Spartan women were expected to voice their opinions about public matters. Most important, they also, unlike Athenian women, had rights to their own property through dowry and inheritance.

At the same time, the real political power was exercised by two institutions, the gerousia (Council of Elders—gerontes) and the ephoroi (magistrates). The Assembly could only vote on proposals presented by the Council, not initiate them. There is dispute about whether the Assembly could even formally debate proposals, but it is likely that vigorous debates in fact took place. The Assembly was composed of Spartan warriors, after all. The Council consisted of the two Spartan kings and 28 citizens over the age of 60 who were elected by the Assembly for life. This made the Council the main legislative power in what might be considered a bicameral system. Cicero analogized the Council to the Roman Senate. While the Council was not composed of a hereditary “aristocracy,” as was the principal – but not sole — characteristic of the Roman Senate, its members were drawn from the most prominent and tradition-minded elements of Spartan men.

Political writers since ancient times often pointed to another feature of the Spartan constitution, the dual monarchy. The origins of that system are obscure. For example, historians have sought to locate that origin in an ancient dispute between two powerful noble families that was settled by making the leader of each a king. Others have seen this as the result of a union of various villages or tribes at the city’s founding, the chiefs of the two most powerful becoming the kings. In later years, the system evolved that one king was responsible for domestic matters, mainly religious and judicial, while the other was typically away on military expeditions. The two kingships were not explicitly hereditary, and the kings were elected, another democratic feature. But they were elected for life and from those same two ancient families.

Whatever its origins or democratic bona fides, writers have often lauded the dual monarchy as representing an effective barrier to centralization of power in a single tyrant. The force of tradition and the natural rivalries among powerful faction kept each in check. Given the largely ceremonial role of the kings, except in military campaigns, and the checks otherwise placed on the kings make this justification for the dual monarchy less compelling.

The final piece of the formal Spartan political structure was the board of magistrates. The ephoroi were elected annually by the Assembly. Even the poorest citizen theoretically could be elected. There could be no re-election to a subsequent term. Initially, the ephoroi had limited powers, but as time passed, their offices gained substantive powers. When away on a military campaign, the king was accompanied by two ephoroi. Similarly, the kings lost the power to declare war and to control foreign policy to the ephoroi and the Council. Much of this might be traceable to security concerns that a king could make surreptitious deals with enemies of Sparta or get entangled in foreign schemes injurious to Spartan survival. Except while acting as generals, the kings over time became figureheads. But the ephoroi themselves also had significant limitations on their powers, chief among them their short tenures.

Polybius, often described as the founding light of constitutional and political studies, described the Spartan system as a true balanced and mixed government. In the classic understanding, that meant it contained a mixture of monarchic, aristocratic, and democratic elements balanced in harmony to produce an effective government duly attentive to individual rights. It seems unpersuasive to describe the rigid and totalitarian Spartan society in that manner. In light of the functional dominance of the Council, with its life tenure and its selection from the upper levels of Spartan society, one might more readily classify Sparta as an oligarchic system.

The end of Spartan power was not due to any inherent defect in the constitutional structure. More likely were the combined factors of demographic collapse and overextension in foreign and military ventures. The near-constant warfare of the 5th and 4th centuries B.C. against Persians, then Athenians in the Peloponnesian Wars, then against the combination of Athens, Thebes, Corinth, and Persia in the Corinthian Wars, and, finally, against Thebes alone, depleted the Spartan hoplite infantry on which Spartan military success depended. The population of Spartan citizens shrunk, and their rule over the helots which made up 90% of the state’s residents became increasingly precarious.

The rigid nature of Spartan society, the paranoia reflected in the Spartan security state, and the traditionalism of the Council, shown for example by their unwillingness to extend citizenship to the helots, may have contributed to the downfall of Spartan influence after the Battle of Leuctra in 371 B.C. Still, the city at that time had been a powerful actor in the Mediterranean world for three centuries. Moreover, the system continued to operate reasonably well within the Roman world for nearly another eight hundred years, until it was sacked by Alaric and the Visigoths in 396 A.D.

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.

 

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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/.

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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
Declaration of Independence Signer James Wilson and a Framer of the U.S. Constitution, Supreme Court Justice appointed by George Washington, and author of Lectures on Law.

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/.

Podcast by Maureen Quinn.

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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/.


Podcast by Maureen Quinn.

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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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Guest Essayist: Joerg Knipprath

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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Guest Essayist: Joerg Knipprath

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/.

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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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George Washington, presided over the first Continental Congress; Commander-in-Chief of the Continental Army during the American Revolutionary War; first President of the United States; painting by Gilbert Stuart, 1796.

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/.

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

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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/.

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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/.

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

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Guest Essayist: Joerg Knipprath
Signing of the Declaration of Independence by John Trumbull, displayed in the United States Capitol Rotunda.

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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“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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Principle of Due Process of Law

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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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Careful Observance Upon Forming and Executing Laws: Principle of the Rule of Law, Not of Men

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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/.

 

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Guest Essayist: Joerg Knipprath

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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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Guest Essayist: Joerg Knipprath

Over the years, the Supreme Court has addressed several constitutional topics in cases involving lotteries. Perhaps none is as significant as Chief Justice John Marshall’s opinion in Cohens v. Virginia. The case was the third major act in a decades-long contest over the nature of the Union and, more specifically, over the constitutional relationship between federal and state laws and between the federal and state judiciaries. On the last point the contest directly involved repeated clashes between the United States Supreme Court and the Virginia Court of Appeals (the state supreme court), and between two dominant jurists, Marshall and the chief judge of Virginia, Spencer Roane. Cohens v. Virginia is the climax in the story of those two rivals.

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Guest Essayist: Professor Joerg Knipprath

 

Franklin Delano Roosevelt, running for re-election in 1936, received 60.8% of the popular vote, second-highest popular vote percentage since that method of selecting presidential electors became dominant in the 1830s. Only Lyndon Johnson’s 61.1% over Barry Goldwater in 1964, Richard Nixon’s 60.7% over George McGovern in 1972, and Warren Harding’s 60.3% over James Cox in 1920 are on a similar scale. The electoral vote was even more lopsided, as Roosevelt defeated Kansas Governor Alf Landon 523 votes to 8 (46 states to 2). Only Ronald Reagan in 1984 (525 votes to 13; 49 states to 1 plus D.C.) and Richard Nixon in 1972 (520 votes to 17; 49 states to 1 plus D.C.) enjoyed similarly impressive margins since the modern two-party system emerged.

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Guest Essayist: Professor Joerg Knipprath

 

Dissenting from the Supreme Court’s 1905 opinion in Lochner v. New York that found unconstitutional a maximum-hour law for bakery employees, Justice Oliver Wendell Holmes, Jr., declared, “[A] constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire.” Holmes’s point is valid at least to the extent that the Framers–most of whom adhered to the then-dominant mercantilism–did not encrypt the grand contours of a particular system of political economy in the Constitution’s provisions aligning and balancing individual liberties and governmental powers. Yet, the Constitution also protects personal rights whose exercise is more likely to be realized in a political system premised on fundamentally liberal (in the classic meaning) conceptions of the role of the government and the individual’s relationship to the State than in a system that rests on a different view of such essential matters.

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Guest Essayist: Professor Joerg Knipprath

 

When asked what might derail his agenda for his new Conservative Party government, former British Prime Minister Harold MacMillan is said to have responded, “Events, dear boy. Events.” That aptly describes how the political fortunes of war-time Presidents play out. It is surprisingly difficult for incumbent commanders-in-chief to win even if military campaigns are successful. True, Franklin Roosevelt won in 1944. But, even as the Allies were defeating the Axis powers, the popular Roosevelt won with the lowest percentage margin of victory of his campaigns. When elections occurred while the war effort appeared to be flagging, incumbents have fared badly. In 1952, as a result of the Korean War stalemate, President Harry Truman could not even win re-nomination by his own party, and the Democrats lost decisively. In a similar vein, in 1968, President Lyndon Johnson declined to pursue the Democratic Party nomination for re-election after the newscaster Walter Cronkite and other elements of the media turned the disastrous and strategic military defeat of the Viet Cong during the Tet offensive into a prevailing popular tale of American defeat.

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Guest Essayist: Professor Joerg Knipprath

 

Election of 1860

John C. Breckinridge of Kentucky entered the year 1860 as Vice President, having been elected to that office in 1856 as a Democrat from the Stephen Douglas wing of the party. Taking the oath of office when barely 36 years old, one year above the constitutional minimum, he remains the youngest man elected to that office. When the Whig party collapsed because its intrinsic identity as a national party was ground up between the sectional millstones over slavery, the Republican Party emerged as, initially, a staunch anti-slavery movement. Buoyed by its success in the 1858 congressional elections, the party expanded its political agenda. It strongly supported the Union, and moderated, but did not abandon, its official opposition on slavery. By 1860, it was the party of the North, which former Northern Whigs joined enthusiastically.

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Guest Essayist: Professor Joerg Knipprath

 

The 1850s was, for the American political party system, a decade of “creative destruction,” to borrow a concept from the Austrian economist Joseph Schumpeter. This process of collapse and rebirth, sometimes referred to as a political “realignment,” was triggered by the internal contradictions of a constitutional order resting simultaneously on the animating principle of liberty and the continued protection of slavery. The catalyst was the 1854 Kansas-Nebraska Act, the Lewis Cass-Henry Clay-Stephen Douglas “popular sovereignty” approach to slavery in the territories, and the resultant spectacle of “Bleeding Kansas” as the preface to the Civil War.

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Guest Essayist: Professor Joerg Knipprath

 

The Missouri Compromise of 1820, it has been said often, delayed the Civil War for a generation. The act could not, however, eliminate the reality of slavery and the inherent contradiction of such an institution existing in a society founded on the idea of freedom. The Compromise had loaded the dice in favor of at least a gradual erosion of the slave states’ power, thereby also virtually guaranteeing a serious clash, if those states eventually found themselves in an existential political trap.

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Guest Essayist: Professor Joerg Knipprath

 

“The Bank, Mr. Van Buren, is trying to kill me, but I shall kill it,” President Andrew Jackson ominously declared on July 4, 1832, to his political confidante and future vice-president, Martin Van Buren, during the apex of his struggle with the Second Bank of the United States.

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Guest Essayist: Professor Joerg Knipprath

 

Rufus King: delegate from Massachusetts to both the Confederation Congress and the Constitutional Convention in Philadelphia (where, he was one of five members of the influential Committee of Style), long-time U.S. Senator from New York, unsuccessful candidate for governor of New York, two-time American ambassador to Great Britain (where his first successor was James Monroe), and three times unsuccessful Federalist Party candidate for high executive office in the general government—twice for vice-president and once for president. It was this patriot’s lot to lead the disgraced and disintegrating rump of the Federalist Party in its last national campaign.

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Guest Essayist: Professor Joerg Knipprath

 

Today, having the House of Representatives elect the president seems strange, almost freakish. But to the Framers, the participation of the House in this process was expected to be common-place. The problem arises out of the practical need for at least a two-step procedure. There first must be a mechanism to nominate a number of candidates for the office and, second, a process to select the winner from those nominees.

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Guest Essayist: Professor Joerg Knipprath

Six months before his retirement from the presidency, George Washington gave a farewell address to the nation. Among several memorable passages is his warning about the evils of the spirit of party, particularly as it manifests itself in republican forms of government. “This spirit, unfortunately, is inseparable from our nature having its roots in the strongest passions of the human mind. It exists under different shapes in all governments…; but in those of the popular form, it is seen in its greatest rankness, and is truly their worst enemy.”

There must have been more than a small measure of regret in that message. Washington had striven to govern as a president of all, above the pettiness of partisanship. Events and the “natural inclinations of men” so prominently borne by politicians denied him success. Indeed, the passage of time in office corrodes every presidency and, for an increasing portion of the population, turns familiarity into contempt for the occupant. This malignancy affected even Washington by 1796. Toward the end of his term, the President was frequently attacked in speeches and writings. Jefferson wrote to a friend, deriding “men who were Samsons in the field and Solomons in the Council” whose heads had been “shorn by the harlot England.” The letter conveniently found its way into print, where the readers readily understood his reference to Washington, Hamilton, and Adams. The reliably partisan Jeffersonian organ, the Philadelphia Aurora, edited by Madison’s Princeton University classmate Philip Freneau, rejoiced on the occasion of Washington’s retirement that “this 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.” Jefferson’s machinations behind Washington’s back almost persuaded the exasperated President earlier in his term to fire Jefferson, with the latter resigning in time. Washington, who knew how to carry a grudge, never spoke to Jefferson again.

How had it come to this? The first term of the Washington administration had been consumed with domestic policy concerns, primarily establishing the new union on a firm economic and constitutional footing. That had been largely achieved with the adoption of Hamilton’s domestic program and the settlement of the location of the new capital city. As well, Washington’s personal propriety and political sobriety had established sound precedents for his successors about the constitutional dimensions of the presidency and the appropriate conduct in office of a republican head of government. There had been difficulties with the British and French due to the incipient political turmoil of the French Revolution, which had stirred some passions among Americans. Moreover, British policy regarding the Indian tribes and the retention of border forts along the old northwest frontier were irritants and, for some, a mark of humiliation. All things considered, however, by most marks the country in 1792 was more stable than it had been since independence was declared from the mother country in 1776.

The second term of the administration was dominated by foreign events, a trend that even intensified after Washington left office. The government was, to put it mildly, an unwilling participant in these affairs; the nation was, to put it bluntly, woefully unprepared to participate.

But participate they must, and those events fractured America’s political system along the lines of the conflicting personalities and visions of Hamilton and Jefferson.

European big power politics rose to another dimension in 1793, with the beginning of the revolutionary Reign of Terror in France, the French declaration of war against Britain and Spain, and the arrival of “Citizen” Genet as French minister to the U.S. As Genet made his way around the U.S., he founded Jacobin Clubs and was feted by the pro-French Jeffersonians. Much to the dismay of Washington and the shock—feigned or real—of the Anglophile Hamilton, Genet agitated openly for Americans to pressure the administration into active support for France. On the other side, the British navy seized American merchant ships, precipitating calls for war from pro-French factions. Ideological fervor seized the American populace. Still, admiration or disdain for the respective European powers was not just based on views about revolution, but was also tied to extraneous regional and local interests and rivalries. While the emerging commercial North favored Britain and the agrarian South, suspicious of “stock-jobbers” (as Jefferson described the financial interests), favored France, local interests broke up the pattern.

President Washington responded with his “Neutrality Proclamation” in April, 1793. The administration’s opponents in Congress argued that this was not a constitutional power of the president, and that Washington had usurped Congress’s powers. Writing pseudonymously as Pacificus, Hamilton promptly published seven essays in support of the proclamation. He urged not only that it was the “duty of the executive to preserve peace” until Congress exercised its constitutional power to declare war. Rather, he claimed a broader implied power for the executive to act for the interest of the country unless the Constitution clearly prohibited him from doing so or assigned the role to another branch, a position that has been enduringly popular with presidents since then. Jefferson wanted to respond, but, as a member of the cabinet, believed it better to enlist James Madison’s services. Madison was extremely reluctant to participate, but eventually penned five responses under the name Helviticus.

Popular reaction against the Whiskey Rebellion by western Pennsylvania farmers over the excise tax on alcoholic spirits, as well as Jefferson’s reluctance to distance himself decisively from the French Revolution as news of the Terror reached American shores, helped produce a Federalist victory in the1794 congressional election. Soon thereafter, as the terms of the recently-negotiated Jay Treaty with Great Britain were debated in the halls of Congress and in the press, political passions reached a peak. The treaty was generally favorable to the United States in that it prevented a war with Britain that the Americans could not afford and also brought relative peace to the Northwest frontier. It was founded on a bilateral optimism about the future of the parties as trading partners.

However, some critical issues about compensation for slaves and payment of sequestered debts were left unresolved and to be settled by future commissions. Led by their philosophical leader, the Republicans saw this, as Jefferson wrote, “as a treaty of alliance between England and the Anglomen of this country, against the legislature and people of the United States.” In reality, what stung the opponents was that the treaty embodied a rejection of their foreign policy and, by extension, their ideological premises. Matters were certainly not improved for them by the fact that the terms of the treaty itself were the work of Alexander Hamilton, supported by the diplomatic skill of John Jay.

Opposition to the Jay Treaty galvanized what had been a loose faction, primarily in Congress, into an organized political party. They took the name Jefferson had given them informally, “Republicans,” to imply that their opponents were monarchists. The Federalists followed suit. Their designation came from Hamilton’s desire to cast his faction as defenders of the Constitution and his opponents as Antifederalists. Over the next two years, both sides organized local clubs and set up friendly newspapers. The Jeffersonians, especially, were aware of the need to move beyond their base in the South and courted politically disaffected groups in the North and West.

The election of 1796 pitted Vice-President John Adams of Massachusetts and Thomas Pinckney of South Carolina for the Federalists against Thomas Jefferson of Virginia and Aaron Burr of New York for the Republicans. Alexander Hamilton, who had left the cabinet in 1795, believed himself to be the proper leader of the Federalists. He had Washington’s favor and managed to place his associates in several cabinet positions. As well, his many connections broadened his influence. Under the voting rules of the time, each presidential elector cast two undifferentiated votes. The winner (assuming this constituted a majority of the electors appointed) became president, and the runner-up was vice-president.

Adams’s intellect and personal honesty were generally acknowledged. But there was a perceived flaw. Benjamin Franklin had characterized him as “always honest, often great, but sometimes mad.” More likely, Adams simply lacked the “talents for low intrigue, and the little arts of popularity” that Hamilton once had warned against in the Federalist Papers concerning the selection of the president. Adams’s dislike of the capital’s society and his propensity to pomposity did not help. The debacle of Adams’s proposal for a sonorous and expansive formal title for the president had made him a laughing-stock and tagged him with the title “His Rotundity.”

Hamilton believed Adams to be emotionally unstable and, hence, unsuited for the office. He maneuvered to place Pinckney in the presidency, instead. He expected the northern electors to vote for the party ticket, but bargained with Edward Rutledge, a Jeffersonian politician, to have the South Carolina electors vote for Jefferson and Pinckney. The plan became known. Enough northern electors voted for Adams and not-Pinckney that Adams narrowly won, 71 votes to 68. Unfortunately, Pinckney was third. Adams’s erstwhile and future friend, Jefferson, was second and became vice-president. Their current positions as heads of opposing parties did not bode well for amicable government. Worse, for the Federalists, the unifying Washington was gone, and the ambitious Hamilton nipped at Adams’s flanks. The clouds that had appeared on the political horizon in the previous election now had gathered. If and when the storm broke, and how severe the deluge would be, would have to await the next election.

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

Guest Essayist: Professor Joerg Knipprath

 

In early 1790, in just the second year of the general government under the new constitution, Treasury Secretary Alexander Hamilton delivered on the charge made to him by the first Congress in 1789 to prepare a plan for the “adequate support of public credit.” This First Report on the Public Credit proposed to pay off the foreign and domestic debt at par through new U.S. bonds, which, in turn, were to be paid off through import duties and excise taxes, such as those on whiskey. To help tie disparate creditors of the states to the national program, the general government also would assume the Revolutionary War debts of the states. Later that year, he submitted the related Report on the Bank of the United States. This analogue to the Bank of England, but owned principally by private investors and with branches set up in various states, was to provide the core of a nascent banking system necessary for the country’s commercial development.

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A t-shirt I saw recently embodies the ultimate justification for parental authority, “I’m the Dad, That’s Why.” Of course, substituting “Mom” works, as well. President Obama’s claims of executive authority to act when Congress fails to enact his vision about immigration matters, Obamacare, or the environment, similarly appears to be, “I’m the President, that’s why.” As a t-shirt slogan, it works; as constitutional doctrine, not so much.

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When Barack Obama was elected in 2008, much was made in the press of the perception that this event reflected voters’ fatigue with foreign entanglements and a turning inward to domestic issues. While there is truth to that, events are not controlled by voters’ sentiments and have a way of upsetting comfortable delusions. It might be said, with apology to Leon Trotsky, “You may not be interested in international conflict, but international conflict is interested in you.” Thus, by 2012, Russia rising, Iraq fracturing, Syria boiling, China blustering once again placed foreign relations on the political radar. Still, Mitt Romney’s warnings about, for example, Russia as the preeminent geopolitical threat, fell on insufficient numbers of listening voters’ ears, and Barack Obama was re-elected.

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One of the most controversial recent presidential actions is the Obama administration’s desire to enter a “nuclear deal” with Iran. To prod Iran into an agreement that he appears desperately to want, President Obama intends to waive sanctions imposed under earlier legislation and executive action. As shown by an open letter to the Iranian government authored by Senator Tom Cotton and signed by 47 Republican senators, a hotly-debated aspect of the deal is which role, if any, Congress would play in this spectacle.

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As introduced in the previous post, the 1952 Steel Seizure Case is a cornerstone of the Court’s separation of powers jurisprudence. The case arose out of President Harry Truman’s decision to seize the steel mills to prevent a labor strike that, he claimed, threatened steel production for the war effort in Korea. The Court was presented with the difficult problem of resolving, in a legal setting, the essentially political wrangling between Congress and the President, with the latter pressing his constitutional power claims to the maximum. At another level, the case exposed the fault lines between the American view of the Constitution as both the source and the basic formal law of government, and the classical view of constitutions as mere reflections of formal and informal political accommodations already made otherwise. Read more

Separation Of Powers Case: Youngstown Sheet & Tube Co. v. Sawyer (Part 1)

When the Supreme Court addresses constitutional aspects of executive “overreach,” it often does so in the context of a clash between the President relying on a broad reading of his constitutional powers and the Congress attempting to limit those powers through the use of its own. The controversy that raises the issue is usually said to involve the Court in the delicate, but vital, role of “policing the boundaries established by the Constitution.” To decide just where the boundaries relating to the separation of powers lie, the Court typically looks to the framework established in the foundational case, Youngstown Sheet & Tube Co. v. Sawyer (1952). Read more

Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

Herbert Croly was perhaps the most important intellectual of Progressivism, which seems odd, given the tortuous language and convoluted emotive passages that characterize his work. Progressive Democracy was not Croly’s most significant book. That was his earlier work, The Promise of American Life, a book that supposedly so influenced Theodore Roosevelt it is said to have provided the catalyst for Roosevelt’s return to politics as a third-party “Bull Moose” presidential candidate in the 1912 election.

Progressive Democracy is of the same style and substance as Croly’s other writings. It rests on the usual Progressive premises, such as the omnipotent, all-caring, and morally perfect Hegelian God-state that is the inevitable evolutionary end of Progressive politics. It reflects the notion—so common in Progressive and other leftist theory—of stages of human social and political development that have been left behind and whose outdated institutions are an impediment to ultimate progress into the promised land. Hence, Croly’s insistence that the Constitution’s structure of representative government and separation and division of powers needed to be, and would be, changed. Read more

Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

Thomas Woodrow Wilson was dour, humorless, and convinced of the fallen nature of all but the elect few and of the need for strong leaders with proper principles who would provide the discipline and vision for the moral guidance of the weak at home and abroad. Calvinist in appearance, outlook, and family background, he perfectly matched the caricature of a Puritan. Those traits also made him a perfect Progressive.

Wilson was strongly influenced by 19th century German intellectual thought, especially Hegel’s views of the State as the evolutionary path of an Idea through history, and by contemporary adaptations of Darwinian theories to social science. He enthusiastically embraced the nascent ideology of the State. Read more

Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

In 1830, at a dinner on the anniversary of Jefferson’s birthday, an exchange of toasts occurred between President Andrew Jackson and Vice-President John Calhoun. Jackson’s challenge, “Our Federal Union—it must be preserved!” was returned with another from Calhoun, “The Union—next to our liberty, the most dear.” The rhetorical volleys crystallized the fundamentally different views of the combatants during the later secession crisis, not only on the nature of the Union, but on the very values each thought paramount. Read more

Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

American politics in the 1850s were dominated by the polarization over slavery, which was reflected in the increasingly menacing tone of the national political “conversation” and the retreat into starker sectionalism of political allegiances. Attempts at political compromise over this national sickness initially appeared promising, but ultimately provided only bandages, not cures. When politics failed, the doctors of the law on the Supreme Court stepped in with a massive dose of controversial and untried constitutional medicine in the Dred Scott decision. When that, too, failed, the only means left to stop the spread of the poison was through the extreme surgery of military conflict that cost the blood of over 600,000 Americans. The South wanted amputation of what it saw as the source of the poison—the North’s crusade of political domination. The North rejected amputation and wanted to save the whole patient through radical surgery to cut out the evil—Southern slavery. Read more

Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

Abraham Lincoln’s speech on the Dred Scott Case reveals the complex nature of his views on slavery and racial equality, complexity that reflected the divided national psyche. Many Americans in the broad middle rejected the Southern defense of slavery and believed that the “peculiar institution” violated basic human rights and the fundamental equality of life, liberty, and the pursuit of happiness promised to all in the Declaration of Independence. Read more

Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

With the certitude of wisdom and the patronizing tone one might recall from one’s own youth, the precocious young Alexander Hamilton offers to teach the Loyalist Samuel Seabury the true meaning of the rights of man. The pointed words used and Hamilton’s sarcastic references to the “Farmer’s” ignorance of the God-given nature of those rights are put in even greater relief when one is reminded that Seabury was one of a long line of bishops, rectors, and professors in the American Episcopal Church and extremely influential in the development of the American church’s doctrine after the Revolution. “If you will follow my advice, there still may be hopes of your reformation,” takes on more layers of meaning, when addressed to a Protestant Read more

Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

On July 4, 1776, the Continental Congress, after months of preparation and weeks of political wrangling, announced that it had adopted an independence declaration. That document was written by Thomas Jefferson and substantially revised (“mangled,” according to Jefferson) by the Congress. Due to his other obligations, Jefferson had little time to spend on this task. Fortunately, he had composed his Summary View of the Rights of British America just two years earlier, from which he could draw much of the substance of the new document.

The Summary View resonates quite differently from the petitions, remonstrances, and declarations of a decade earlier. Read more

Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

Rights of the British Colonies Asserted and Proved-James Otis

The Declaration of Rights of the Stamp Act Congress of 1765 set forth the fundamental principle that no taxes could be imposed on them, “but with their own consent, given personally, or by their representatives.” This principle was reduced to the aphorism “taxation without representation is tyranny” and, eventually, “no taxation without representation.” One cannot assign this idea to any individual or movement, as it reflects a long historical struggle between King and Parliament that culminated in the Glorious Revolution and the English Bill of Rights of 1689. Read more

Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

Algernon Sidney, the author of the Discourses, was a man of the 17th century’s Age of Reason. He was skeptical of organized religion though not by that measure doubting of God. He was firmly convinced of the inherent rationality of the human will and the essential equality of all humans as children of God, from which he deduced the ultimate sovereignty of individuals and the basis of the ethical state in the consent of the governed. That made him a foundational figure in the emerging English Whig republicanism, but one about whom history has given a divided verdict.

He was executed in 1683 for plotting to instigate rebellion against Charles II. Many historians believe that the evidence for that particular charge was procured. It is clear, however, that for many years he was supported in his machinations and plotting against the English government by generous support from the French king, Louis XIV. Read more

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

http://vimeo.com/43382879

Amendment XXIV:

1:  The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax.

2:  The Congress shall have power to enforce this article by appropriate legislation.

A poll tax is an ancient device to collect money. It is a tax on persons rather than property or activity. As a regressive tax from the standpoint of wealth, it is often unpopular if the amount at issue is steep. But it can also be unpopular for other reasons.

In the United States, such a capitation tax was assessed in many states on the privilege of voting. Amounts and methods varied. One of the last poll taxes of this type, that of Virginia, was just $1.50 per person at the time it was struck down by the Supreme Court in 1966. That is not more than $10.00 in current money, hardly an exorbitant price, except for the truly destitute. But the problem was more than the amount. It was the manner of administration.

The common practice was to require that the tax be paid at each election, and that a potential voter demonstrate that he had paid the tax for a specified number of previous elections. If not, those arrearages had to be paid to register to vote in the ongoing election. The effect of the tax was to hit many lower income groups, but primarily Southern blacks, whose participation in elections dropped to less than 5% during the first part of the 20th century. To be sure, that low rate of participation was not entirely due to the poll tax, but that tax was a particular manifestation of a regime of suppression of political participation by blacks.

The 15th Amendment had been adopted to prohibit overt racial discrimination in qualifying to vote. However, the poll tax and other restrictive measures, such as literacy tests, were not, strictly speaking, race-based, so they did not come within the 15th Amendment. A different solution was needed, according to those who saw the poll tax as intolerable. Literacy tests, if fairly administered (though often they were not), had a clear connection to the responsible exercise of the voting franchise that poll taxes lacked. After all, especially in those years before the electronic media, having a literate electorate was a significant community interest. Republican theory has traditionally looked to having those with the most interest and highest stake take the leading role in the community. Literacy provided a foundation to acquire the knowledge needed for a wise and effective participation in res publica. Poll taxes, on the other hand, are just revenue-raising devices, and, since they are applied equally per capita, they are removed from republican considerations of having those with the highest economic stake in society direct the political affairs of that society.

Opposition to the poll tax increased during the 1930s and President Roosevelt briefly attacked it in 1938. But FDR had to be mindful of the powerful influence of Southern Democratic barons in the Senate and the crucial role that the Southern states played in the politically dominant Democratic coalition. By the 1940s, the House of Representatives passed legislation to outlaw poll taxes but a Southern-led filibuster in the Senate killed the effort. By 1944, the Republican Party platform and President Roosevelt (though not his party’s platform) called for the tax’s abolition.

Eventually, qualms arose about using ordinary legislation to block the tax. Article I of the Constitution places principal control over voter qualification in the hands of the states. The 15th Amendment (race) and the 19th Amendment (sex) had limited the states’ discretion. To many—even opponents of the poll tax—the message from those amendments was that limitations on state power had to proceed through specific constitutional amendment. The opinions issued by the Supreme Court seemed to echo those sentiments, as the Court had accepted the predominant role of the states in that area even when it struck down the racially-discriminatory “white primaries” in the South in the 1940s and 1950s. The debate allowed Southern supporters of the poll tax to characterize the controversy as a states’ rights issue.

The effort to adopt a constitutional amendment to ban poll taxes dragged on through the 1950s into the 1960s, even as support for the tax grew weaker. Literacy tests remained widespread, even in the North. But Southern states, too, abandoned poll taxes until, in 1960, only 5 states retained them. Finally, in March, 1962, the Senate approved what would become the 24th Amendment. This time, no Southern filibuster occurred. In August of that year, the House concurred. The concerns over state sovereignty remained, in that the amendment proposed to abolish poll taxes only in federal elections, leaving states and municipalities free to continue the practice for their internal affairs.

When the amendment was sent out to the states, every state of the old Confederacy, but two, refused to participate, still portraying the matter as a states’ rights issue. The two exceptions were Mississippi, which formally rejected the amendment, and Tennessee, which approved it. Outside the South, every state adopted the amendment between November, 1962, and March, 1964, except Arizona and Wyoming.

But, as mentioned, states were still free to adopt poll taxes for local elections. This apparently was a call to action for the Supreme Court. Casting constitutional caution to the wind, the Court in Harper v. Virginia Board of Elections in 1966 struck down the Virginia poll tax for state and local elections. Creating an odd alloy of different constitutional concepts, due process and equal protection, Justice William Douglas announced for the majority that poll taxes impermissibly discriminated on the basis of wealth and/or improperly burdened a fundamental right to vote. In any event, the opinion announced, the Virginia tax violated the 14th Amendment.

The Court obviously was aware of the 24th Amendment, so recently adopted. But the learned justices must have found the effort to amend the Constitution through the proper Article V process unsatisfying. It appears that the 24th Amendment, having been limited to federal elections to avoid further intrusion into state sovereignty over voting qualifications, was not constitutionally rigorous enough. The Constitution, as it thus stood, was unconstitutional in the eyes of the Supreme Solomons. If the Court was right in Harper, members of Congress and of the state legislatures could have saved themselves much trouble and just used the 14th Amendment to declare all poll taxes unconstitutional. Congress could have accomplished the goals of the 24th Amendment, and more, just by passing a law to enforce these supposed rights protected under the 14th Amendment.

Of course, traditionally the 14th Amendment was not understood to provide direct restrictions on state control of voting qualifications. Otherwise, the 15th Amendment, as it applies to states, would have been unnecessary. The Court had used the 15th Amendment to strike down certain voting restrictions on race earlier in the 20th century, and did not even begin to take gingerly steps towards the 14th Amendment until striking down the “white primaries.”

Not much significance, other than as a symbol and a constitutional curiosity remains of Harper. The Court since then has repudiated the notion of wealth as a constitutionally “suspect” classification entitled to strict judicial scrutiny under the equal protection clause. As well, the notion of voting as a fundamental right protected under the due process clause, has had a checkered history.

Rights conceptually are “fundamental” if they do not depend on a political system for their existence; they are “pre-political” in the sense of the Anglo-American social contract construct that the Framers accepted. Freedom of speech and the right to carry arms for self-defense come to mind. Voting is an inherently political concept that does not exist outside a political commonwealth, and the scope of the voting privilege (that is the meaning of “franchise”) is, necessarily, a political accommodation. Even republics, never mind monarchies, have no uniform understanding of who may be qualified to vote. The great historical variety of arrangements of republican forms of government, and the inherently political nature of defining them, is one reason the Supreme Court has not officially involved itself in defining what is a republican form of government guaranteed under the Constitution.

A final word about the 24th Amendment: Historically, many republics, including the states in our system, required voters to meet designated property qualifications, as a reflection of having a sufficient stake in the community to vote responsibly (and to pay for the cost of government). Strictly speaking, the 24th Amendment does not forbid those. The Supreme Court has upheld property qualifications for voting for special governmental units, such as water districts. One wonders, whether the abolition of such qualifications, if they were required in all elections, would need a constitutional amendment today, or whether the Supreme Court would just wave the magic wand of the 14th Amendment, as it did in Harper.

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

June 4, 2012

Essay #76

 

 

Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

Amendment XV:

Section 1: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2: The Congress shall have power to enforce this article by appropriate legislation.

As do its older companions among the three Reconstruction Amendments, the Fifteenth Amendment authorizes Congress to make laws to enforce its provisions. Congress acted almost immediately after the amendment’s adoption to protect the voting rights of black citizens through the Enforcement Act of 1870. Just six years later, however, the Supreme Court blunted that statute’s use as a practical tool to prevent Southern interference with the voting rights of blacks.

For the next eighty years, the focus of 15th Amendment law shifted to the Supreme Court as it struck down various ingenious ways, such as “grandfather clauses” and literacy tests, that states developed to continue the disenfranchisement of blacks. Not until 1957 did Congress involve itself again. Finally, in 1965, Congress used Section 2 to pass the Voting Rights Act of 1965. That statute is the most significant law passed under this section, and its constitutionality was quickly upheld in two major Supreme Court rulings in 1966.

The statute prohibits the use of any procedure or test that has the purpose or effect of abridging a citizen’s right to vote on account of race. Moreover, it requires that certain states and other political units that seek to change voting procedures must obtain pre-clearance from the Justice Department. These mechanisms, direct prohibition and pre-clearance from federal authorities, are key features of this potentially far-reaching statute. The latter requirement especially is controversial. Justice Hugo Black noted, a “federal law which assumes the power to compel the States to submit in advance any proposed legislation they have for approval by federal agents” threatens the system of structural federalism because it “approaches dangerously near to wiping the States out as useful and effective units in the government of our country.”

Section 2 is a remedial provision, similar to Section 2 of the 13th Amendment and Section 5 of the 14th Amendment. As to the last of these, the Supreme Court has held that any Congressional act must solely remedy violations by the states of the 14th Amendment and must not simply create new statutory rights to sue. Congress must show that the action by the states that the law prohibits is a violation of the 14th Amendment, as determined by Supreme Court precedent. Once such a violation is established, the law must seek to remedy that violation. The characteristics of a remedy are that it targets only the wrongdoers and the offending behavior, and is in place only as long as is needed to cure the problem. Under the 14th Amendment, that test would be met if the law targeted governmental bodies or government officials for sanction, was limited to states that engaged in the unconstitutional conduct, and applied only as long as the violation continued. The Court has coined a fancy and sonorous phrase for this requirement, calling it one of “congruence and proportionality.”

While the Court has not formally adopted the same test for Section 2 of the 15th Amendment, language from the lower courts and from the Supreme Court in the 2009 decision in Northwest Austin Municipal Utility District v. Holder suggests that this is the likely test that will be applied to laws under this section. The provisions of the Voting Rights Act originally met this test. The most controversial section of the Act, the pre-clearance provision, only applies to states or other political units, and only to those that engaged in violations of the 15th Amendment and abridged the right to vote of various racial or ethnic groups (usually blacks or citizens of Mexican ancestry). The statute was in effect only for five years and allowed a “bail-out” if a political subdivision could show that the reason it was covered by the statute (determined through a voting participation formula) was not due to any unlawful discriminatory practice.

Since then, however, the Act’s constitutionality has become more problematic. It has been re-adopted four times, the latest extension, in 2007, for 25 years. Entire states, such as Texas, continue to be subject to its restrictions. Bail-outs were rare, if they occurred at all, before 1982. Between 1982 and 2009, only 17 political units (e.g. towns or cities) out of 12,000 that are covered by the law successfully bailed out. The Justice Department consistently opposed and blocked bail-out suits.

Conditions in the states have changed since 1965. Indeed, the evils of unbalanced voting rates between whites and others are greater today in some states that are not subject to the Act’s coverage formula. All changes in election law are covered by the statute and must be shown not to have a racially discriminatory effect on voting and must receive Justice Department approval. As one frustrated Georgia Congressman tartly remarked, “If you move a polling place from the Baptist church to the Methodist church, you’ve got to go through the Justice Department.”

This was precisely the problem faced by a small water district in Texas that wanted to move the voting place for election of its board from a private house to a public school. The district was formed in 1987 and never engaged in voting discrimination in violation of the 15th Amendment. But, since Texas was covered by the Act, the district was covered, and the Justice Department opposed the district’s suit to bail out of coverage.

The Supreme Court heard the Northwest Austin case in 2009. While the justices did not reach the constitutionality of the Act, the oral argument and the opinion served strong notice that the Court was skeptical that current social and political conditions warranted a “remedy” based on a formula reflecting nearly 50-year-old evidence. At argument, Chief Justice Roberts and Justice Alito wondered why the Act had not been extended to other states where there were greater voting disparities between whites and racial and ethnic minorities than in the covered states. Such unequal treatment goes against the basic constitutional presumption of equality among the states and can only be avoided in unusual cases. The opinion noted the “federalism cost” of interference with the fundamental political decisions of states, the same concern that Justice Black had raised 40 years earlier.

Since Northwest Austin, several additional political subdivisions have been able to extricate themselves from the Act’s preclearance requirement, including the first outside the state of Virginia. Local politicians, the Justice Department, and the lower courts may have received the Court’s signal and are facilitating bail-outs as a way to avoid having the Court declare the Act unconstitutional.

The Act is an object lesson of how a problem begets a law that remains long after the events that gave rise to it are past. The Act was to be “temporary,” but such measures rarely are. It is in truth a remedy without an ill and becomes thereby part of a political spoils system.

Constituencies develop whose economic livelihood or political influence depends on the continued existence of the law and the perpetuation of the appearance of need for it. Those constituencies include the bureaucrats and lawyers in the Justice Department, but also the politicians—federal, state, and local—who can use their support for the Act as evidence of political virtue to further their own power. The political system may be unable to reform itself under such circumstances, and it remains for the courts to declare that the emperor lacks clothes.

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

May 9, 2012

Essay #58

 

Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

http://vimeo.com/41276250

Amendment XIV, Section 1:

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

Supreme Court Justice Oliver Wendell Holmes once dismissively declared the equal protection clause to be the “usual last resort of constitutional arguments.” At the time, 1927 in the notorious case of Buck v. Bell, Holmes could not have foreseen the explosion in the use of the equal protection clause that would occur a generation later.

The Declaration of Independence had famously asserted the proposition, self-evident to the Founders, that “all Men are created equal.” But this was a metaphysical proposition in that there was to be no aristocracy by birthright, a moral one in that we are all (with allowance for the truly insane) equally imbued with free will, and a religious one in that we are all children of God. The Founders were hardly so naïve to believe that all people are physically, intellectually, and emotionally equal, never mind that they are alike. Aristotle had written in the Politics, “Democracy arises out of the notion that those who are equal in any respect are equal in all respects; because men are equally free, they claim to be absolutely equal.” Aristotle viewed this as a fatal flaw of democracy, a theme echoed in Madison’s Federalist 10. In a trenchant dissection of the instability of democracies, Madison sarcastically observed, “Theoretic politicians, who have patronized this species of government, have erroneously supposed that, by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions.”

Moreover, the very real presence of slavery in the great majority of the states demonstrated the limitations of the concrete application of the Declaration’s sentiments. While Thomas Jefferson, agonizing over the institution of slavery from which he personally benefitted, might write, “I tremble for my country when I reflect that God is just,” it was also the case, as the historian Forrest McDonald observed, “Few of his countrymen trembled with him.”

In practice, then, both simple human differences as well as more profound human inequalities have to be taken into account in a successful social order. Regarding the former, the law routinely discriminates by drawing lines that target some in the community for unfavorable treatment. The tax code, for example, is a mass of discriminations. As to the latter, attempts to equalize conditions that arise from the human inequalities about which Madison wrote is a prescription for totalitarian government. That is the dark side of egalitarianism and exposes the tension between equality and liberty.

Moving from a manifesto for independence to a plan for governing the Union, the Framers did not imbed either a general principle of non-discrimination or one of equality of condition in the Constitution. There are only specific limited instantiations of non-discrimination, such as the protection offered under the privileges and immunities clause of Article IV to persons coming into a state from another and under the commerce clause to out-of-staters competing with local businesses.

There is, however, no equal protection clause. That had to await the adoption of the 14th Amendment. However, as was the case with the 13th and 15th Amendments, that provision had to do solely with race discrimination and, more directly, the conditions that resulted from institutionalized slavery based on the black man’s race. The 14th Amendment was the immediate product of concern over the constitutionality of the Civil Rights Act of 1866, a law passed under the 13th Amendment. That statute was an anti-discrimination law. Since it prohibited race discrimination in various matters and did not limit itself to slavery as such or apply only in former slave states, there were doubts about the ability of the 13th Amendment to support this law. To cure that defect, a movement for another constitutional amendment, the eventual 14th, arose in Congress under the auspices of the Joint Committee on Reconstruction and the leadership of Congressman John Bingham of Ohio and Senator Jacob Howard of Michigan.

The equal protection clause was only intended to insure formal equality before the law and only regarding race discrimination. That its reach did not extend further was made clear by the Supreme Court in 1872 in the Slaughterhouse Cases, in which a claim by butchers that a Louisiana law violated, among others, their right to equal protection under the 14th Amendment was rejected almost summarily. As Justice Samuel Miller declared, “We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision.” In a companion case decided on the same day, Bradwell v. Illinois, a claim by a woman that the state’s refusal to allow women to practice law violated the 14th Amendment did not even produce an argument by her attorneys or a discussion by the Court of a violation of the equal protection clause. The singularly race-focused nature of the equal protection clause was reiterated by the Court of that era in the Civil Rights Cases and Plessy v. Ferguson.

Leaving aside a few odd cases involving unenumerated fundamental rights, it was not until the 1950s that the Supreme Court began to consider non-race-related equal protection claims, and it was not until Reed v. Reed in 1971 that a claim of unconstitutional sex discrimination was successful. In the last several decades, the Court has used the equal protection clause to strike down state laws that discriminate against various classes of aliens, illegitimate children, and homosexuals. Race, ethnicity, religion, national origin and (many) alienage classifications are considered constitutionally “suspect,” meaning that they are presumptively unconstitutional and subject to “strict judicial scrutiny.” Sex and illegitimacy are “quasi-suspect” classifications subject to “intermediate” scrutiny. In either case, the government must show greater need for such discrimination than would be required for ordinary discriminations by government, such as age, wealth, disability, or other classifications. This means effectively that racial and other such differences must not be formally recognized in laws.

The expansion of non-discrimination protection has made obsolete Justice Holmes’ comment about the futility of equal protection clause claims. The Constitution now protects more broadly against discrimination by government than was the case in the 1920s, and certainly than in the 1790s. Still, there is generally no obligation by government to eliminate inequalities that result from human nature and capabilities or from what might be called expansively the human condition. President Obama, speaking years ago at an academic gathering, bemoaned the Supreme Court’s failure to use the equal protection clause to equalize economic and social conditions of inequality, but the Court has generally avoided such judicial legislation. The only exceptions have been in matters related to access to courts, such as the right of an indigent defendant to a paid attorney.

Beyond those few cases, the justices have declined numerous invitations to turn the Constitution from one of rights against the community (a “negative” constitution) to one of rights from the community (a “positive” constitution). Human experience shows that the latter always becomes one of obligations to the community, as government grows and individual liberty shrinks. Certain justices would be happy to move in the direction of the European model to enact their ideal egalitarian world. Justice Ruth Ginsburg’s admonition to the Egyptians that they follow the South African constitution rather than the American in establishing their new system comes to mind. But the increasingly precarious economic status of the welfare state shows the wisdom of the Court in not amending the Constitution to remake the equal protection clause into a constitutional forge of egalitarianism.

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

Monday, April 30, 2012

Essay #51

Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

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

The citizenship clause of the 14th Amendment is one of four amendments to the Constitution that were intended to overturn or clarify Supreme Court rulings (the 11th, 16th, and 26th were the others). Prior to 1857, there had been much scholarly discussion and political debate, but no resolution or consensus, whether the basis of American citizenship was dependent or independent of state citizenship. Many supported the view expressed by South Carolina’s John C. Calhoun in his famous Senate speech on the Force Bill in 1833, “[Every] citizen is a citizen of some State or Territory, and as such, under an express provision of the Constitution, is entitled to all privileges and immunities of citizens in the several States; and it is in this and no other sense that we are citizens of the United States.” On the other hand, James Madison, discussing the need for Congress to provide uniformity in naturalization in Federalist 42, appears to assume that American citizenship cannot be left to the vagaries of state definitions.

The Supreme Court thoroughly examined the issue in the Dred Scott case in 1857. Chief Justice Roger Taney’s majority opinion addressed the interplay between state citizenship and American citizenship. He reasoned that “people of the United States” in the preamble and “citizens” in other parts were synonymous. The people of the United States were composed of the people of the States, as it was they who were the parties to the Constitution in light of the adoption process by state conventions. The “people” of those states were the “free” inhabitants. This was a concept of specific meaning, referring to whites only, not people brought to the colonies as slaves or their descendants, even if thereafter they had been freed. Accordingly, only those descended from white inhabitants and those people naturalized under federal law (since the first statute in 1790, only whites) could be American citizens. This fundamental principle overrode later decisions by individual states to recognize additional classes of state citizens. Scott had no basis claiming citizenship as that term was used in the Constitution. Therefore, he had no power to sue in federal court as a “citizen” of Missouri.

Taney’s argument had a weak link in that there were freed blacks, some of whom could vote in 5 of the 13 states at the adoption of the Constitution. Moreover, the privileges and immunities clause of the Articles of Confederation (the pre-cursor to its counterpart in the Constitution of 1787) had discussed the body of the states’ citizens in terms of their “free inhabitants.” An amendment proposed by South Carolina to insert “white” after “free” was overwhelmingly rejected in 1778. If that was correct, slaves could not claim citizenship, but free blacks could. Just in case, Taney cut off that argument by stating that Scott’s residence with his master in Wisconsin territory could not transmute his status from slave to free.

The main dissenting opinion, by Justice Benjamin Curtis, exploited that weakness, insisting that the Constitution established an understanding of American citizenship that plausibly could extend to all free persons born in the United States. Curtis agreed, however, that the states determined the basic parameters of citizenship, and that American citizenship was derived from the scope of citizenship recognized by the state of birth. The laws of Scott’s state of birth, Virginia, treated him as a slave; therefore he was not at that time a citizen of the United States. Nor would a slave who was temporarily taken into a free state thereby be made free. But when his master took him to reside in a free territory, Wisconsin, that action made Scott a free man and a citizen of the United States. When taken back to live in Missouri, he returned as a free man and became a citizen of that state.

Curtis accepted a unitary basis of citizenship for those born in the United States, one that was determined basically by state law. Taney, on the other hand, accepted a duality: United States citizenship was established by the understanding of the Framers of what made someone part of the “people of the United States.” While states could define state citizenship for themselves, they (or the Congress) could not go against this fundamental principle. Hence, even after the Civil War, freed blacks could not be citizens of the United States, short of a constitutional amendment.

Accepting Taney’s constitutional argument, Congress took that path with the 14th Amendment. United States citizenship was de-coupled from state citizenship, and the latter was made subordinate to the former. National citizenship appears based on place of birth (“jus soli”), the English common law principle going back to feudal antecedents when one’s station was connected to the soil where one was born. However, the amendment also adds that the person must be “subject to the jurisdiction” of the United States. This clearly excludes those children born in the United States to foreign diplomats. Does it also exclude those who are born in the United States to parents who happen to be here temporarily or illegally?

The Supreme Court addressed that clause in 1898 in U.S. v. Wong Kim Ark. The majority ruled very broadly that anyone (other than the children of foreign diplomats) born on U.S. soil was a U.S. citizen. The dissent argued that the competing international law doctrine of blood relationship (“jus sanguinis”) applied, which required not only birth in the U.S. but that the child’s father did not owe allegiance to a foreign power. This was an old principle of Roman law and ancient Greek practice still used in many countries today. It would keep the native-born children at least of those who are here merely as visitors from claiming birthright citizenship.

How does this affect the current debate about “anchor babies” in connection with illegal entrants into the United States? Proponents of unrestricted citizenship argue for the broad language of Wong Kim Ark that generally has prevailed in the courts. However, there are several weaknesses. First, the issue of illegal entrants, or even of temporary visitors, was not addressed there. Mr. Wong himself had lived in the U.S. all of his life. Wong’s parents had been duly admitted as immigrants to the U.S. with a permanent domicile and were engaged in a business. They were not mere passers-through. Nor were they here illegally, a concept that was not an issue in American immigration law until the Chinese Exclusion Act of 1882, years after the Wongs arrived. It was unnecessary for the Court to give such a broad reading to the 14th Amendment, and the justices simply may not have been aware of the ramifications of their language.

Second, the law-of-the-soil tradition carried with it “indelible allegiance.” Thus, a British subject could not renounce British citizenship, which led the British navy, after American independence, to search American vessels and “impress” into British service naturalized American citizens of British ancestry. Americans have roundly rejected that principle.

Third, the debates over the 14th Amendment included remarks by Senator Jacob Howard of Michigan, the amendment’s sponsor, that seem to say that the amendment does not apply to children of any foreigners or aliens, even if those children are born in the United States.

Fourth, Congress on several occasions throughout American history has employed jus sanguinis, for example, in legislation to recognize as citizens by birth the children born abroad to American citizens. This suggests that the 14th Amendment’s jus soli principle applies, unless Congress, as part of the sovereign powers of the national government, passes a law that rests on a different principle.

Overturning a century-old precedent is difficult, but distinguishing it due to changed social circumstances unanticipated at the time is more persuasive. Still, eroding the jus soli interpretation of the citizenship clause is a longshot, but the public debate likely will intensify the pressure for some political or constitutional accommodation.

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

April 25, 2012 

Essay #48 

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

http://vimeo.com/40522514

Amendment XI:

The Judicial power of the United States shall not be construed to extend to any suit or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

“The prince is not bound by the laws.” Thus wrote the lawyer-scribes who compiled the early-6th century compendium of Roman law known as the Code of Justinian. This aphorism defined a fundamental attribute of sovereignty. The sovereign has ultimate authority to make law. Therefore, he cannot be subject to a superior power that could adjudicate a claim that he has violated the law, since that would deny his ultimate authority.

In English constitutional theory, this principle became, “The King can do no wrong.” It was a mainstay of the early modern state and the Tudor and Stuart kings. In somewhat more circumscribed manner, it survived the Glorious Revolution of 1688 and became sufficiently tame as a political construct to be acceptable to English republicans and, through a later formulation, to their counterparts in the American states.

Few, if any, took this point literally, any more than Catholics deem the Pope literally infallible. As William Blackstone explained, the principle was simply that, “whatever may be amiss in the conduct of public affairs is not chargeable personally on the king.” In addition, the law “feels itself incapable of furnishing any adequate remedy, without infringing the dignity and destroying the sovereignty of the royal person.” For Blackstone, as for Justinian’s lawyers and for jurists before and since, the principle was driven by practicality, of not subjecting the ultimate political decision makers to suit over every injury, grave or slight, arising from making and executing public policy. Blackstone allows, however, that the king’s officials and ministers could be called to account for the wrongs that they did in erroneously carrying out public affairs to the injury of someone’s person or property.

Under American theory, constitutional sovereignty shifted from the king to the people. The “people” are incorporated into the states and the United States. In ordinary matters of public policy, practical sovereignty lies in the legislatures. Despite the unfortunate tendency of some political groups towards deification of the State, a fiction that “the people can do no wrong” sounds alien to our ears. Still, the Supreme Court has broadly recognized the principle of “sovereign immunity” as having been carried over from English common law to the states when they declared independence in 1776. Moreover, the Court has underscored the universal nature of sovereign immunity by endorsing it for the United States, as well. One justification the Court has given sounds positively Blackstonian, namely, that a power to haul a state into court without its consent would be an affront to the state’s “dignity.”

The justices have also expressed particular opposition to money claims against a state. Their position may reflect the constitutional reticence of an unelected body to order funds to be appropriated when such funds would have to be raised by taxing or borrowing (“No taxation without representation”). More likely, it recognizes the political reality that courts have no real means to enforce such an order against an unwilling legislature.

Yet, Article III of the Constitution explicitly permits suits in federal court between states and various opponents, from the United States to foreign countries and their citizens, to other states and their citizens. It was argued that, by approving the Constitution, the states to that extent surrendered their sovereign immunity. So, too, thought Alexander Chisholm, the executor for one Robert Farquhar of South Carolina, when he attempted in 1793 to collect on a debt owed to the deceased by the State of Georgia for goods supplied to that state during the Revolutionary War. Georgia had refused to pay for the supplies on the convenient excuse that Farquhar was a British loyalist, though apparently a not-too-principled one.

Chisholm sued Georgia in the Supreme Court. Indeed, he was able to get the attorney general of the United States, Edmund Randolph, to argue the case for him. Georgia, relying on its sovereignty, deigned not even to appear so as not to give legitimacy to this judicial affront to its dignity, though it sent the justices a letter of protest denying their jurisdiction to hear the case. The justices ruled 4-1 against the state, on the aforementioned ground that the states had surrendered aspects of their sovereignty as the text of Article III makes clear, and, in Justice James Wilson’s scholarly opinion, on the ground that states as such were not sovereigns at all.

However, the majority may have got it wrong. The Constitution permits suits “between a State and Citizens of another State.” The Chisholm justices suggested that “between” meant the suit could be brought by the state or by the citizen. But the order of parties in the text could also mean that only the state could bring the suit, especially in light of the common law prohibition of suits against unwilling sovereigns.

Significantly, the wording of Article III alarmed Antifederalists during the ratification debates. Alexander Hamilton, in Federalist 81, responded by imagining a hypothetical dispute brought by a citizen of one state against another state over public securities, such as bonds, issued by the latter. This almost exactly foretold Chisholm. Hamilton strongly defended the states’ immunity from suit as natural to sovereignty and reflecting general practice. He belittled the reasoning later advanced by the Chisholm justices as arising from mere implication and a “forced and unwarrantable” construction of the Constitution’s language.

The virulent reaction in the states against the Chisholm case supports Hamilton’s reading of the Constitution. States-rights supporters saw the decision as confirming their suspicion that the new constitution’s federal structure was a smokescreen to deprive the states of their sovereignty and reduce them to “tributary corporations” to the national government. A more concrete and immediate concern was that the decision opened the door for states to be sued over many unresolved war claims, a course that threatened their financial solvency.

In response, Congress proposed the Eleventh Amendment in 1794, which the states approved in less than one year, a record speed. While the Amendment prohibits only suits in federal court and only against a state by citizens of other states or foreign countries, the Supreme Court has held that the Amendment is just a particular example of the broader principle of sovereign immunity. The Court has ruled that a state also cannot be sued by its own citizens or in its own courts without its consent.

Does that mean that citizens are unable to have their rights vindicated against injurious government conduct? Not at all. Similar to what Blackstone opined was English practice, the Supreme Court has recognized a significant exception that allows suits against state officials, if such suits do not, in effect, seek money damages to be pried out of the state treasury. Thus, a state official can be sued to order him to refrain from engaging in violations of the petitioner’s constitutional rights. State sovereign immunity also does not prevent suits against cities and other local bodies. In limited cases, Congress can restrict the states’ sovereign immunity by statute. The United States in some instances can sue states to challenge violations of individual rights created under federal statutes. If a state initiates an action against a defendant, he can bring claims and defenses against the state arising out of the state’s suit.

Finally, the states can consent to be sued for injuries committed by their officials. It may seem counter-intuitive that governments would agree to be sued, but they generally have done so by laws that wholly waive their immunity (California) or that waive it in specified instances (the United States). Such consent meets political demands for compensation of injured parties, and it is more efficient than the previous alternative of having legislators laboriously introduce private bills of relief to be passed as ordinary laws.

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

April 17, 2012 

Essay #42 

 

Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

http://vimeo.com/39239148

Amendment VI:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of counsel for his defence.

The due process clause of the Fifth Amendment embodies the principle that those vested with the power to govern must not act arbitrarily towards the citizenry. This principle has been a long-established and deeply-held value in Western Civilization, dating back to Stoic (and, subsequently, Judeo-Christian) conceptions of individual dignity. It was incorporated into the canon law of the medieval Catholic Church on the argument that, before banishing Adam and Eve from the Garden of Eden, God gave them a hearing. In Anglo-American constitutional history, it found expression in a provision of the Magna Charta extracted from King John by the nobles that “No free man shall be taken or imprisoned or dispossessed, or outlawed, or banished, or in any way destroyed, nor will we go upon him, nor send upon him, except by the legal judgment of his peers or by the law of the land.” Closer in time to the Constitution, that protection was included in substantially similar language, in the paradigmatic Massachusetts constitution of 1780.

It is self-evident that among the most fundamental protections against governmental caprice is the requirement that, before one is tried and subject to losing life, liberty, or property, one must be notified of the reasons by grand jury indictment or criminal information. Languishing in jail, or living under a cloud of unspecified suspicion, with the overbearing power of the State poised to strike at his life, liberty, or property for a reason not made known, exacts an emotional toll and prevents the targeted individual from preparing his defense. In the more modern context provided by the movie “Animal House,” operating under “double secret probation” puts the recipient at the whim of a vindictive governing bureaucracy.

Then why did the Framers not simply limit themselves to a due process protection, but provide various more precise protections for the accused? Individual clauses in the Fifth (the protection against compelled self-incrimination), Sixth, and Eighth Amendments (no excessive bail) Amendments are specifications of the broader contours of the due process guarantee in the Fifth Amendment. Many of these specifications arose out of the particular experiences of the Americans with British rule. The specific requirement of notification of criminal charges began to appear frequently in early state constitutions, but, unlike other specific protections such as jury trials, had been rare in earlier colonial charters and declarations of privileges and liberties. The Massachusetts constitution of 1780 again provides a model, “No subject shall be held to answer for any crime or offence until the same is plainly, substantially and formally, described to him….” Thus, an indictment must not only be clear, but must “contain the elements of the offense intended to be charged and sufficiently apprise the defendant of what he must be prepared to meet,” as the Supreme Court has opined.

The requirement of notice of charges applies not only to procedural steps that must be taken in regard to the accused. There is also a substantive component that the law under which he is charged be written in a way that furnishes him a reasonably definite standard of guilt. Again, this ties into more general due process notions that a law is unconstitutionally vague if the “average person is left to guess at its meaning,” or if, “based on common understanding and practices, the language of the law reasonably could be construed in several ways, one of which would make the conduct legal.” The old saw that “ignorance of the law is no defense” loses all force if the language of the law is unduly vague.

One historical example of the dangerous malleability of law, especially in the hands of crafty and overbearing prosecutors, was the application of English treason law. Before the Statute of Treason was adopted in 1352, it included various crimes other than warring against the king or aiding his enemies. The contours changed as the king saw fit and extended to ordinary crimes against the “peace of the realm,” such as the murder of the king’s messengers and armed robbery Even after the statute, it included counterfeiting and listed such oddities as “imagining the death of the king, his consort, or his eldest son; violating his consort, or eldest unmarried daughter, or the wife of his eldest son” even before the text discussed levying war against the king. That statute itself was frequently altered and applied in unpredictable ways until a series of reforms by, curiously, the 17th century court of Star Chamber and later Parliaments. Due to this history, as well as the harsh, even brutal, consequences that could result from conviction for treason, colonial charters and state constitutions sought to tighten the definition and reign in the consequences. The Framers of the Constitution followed suit and made treason the only clearly defined crime in the Constitution.

More recently, the Supreme Court has addressed the “notice” issue in striking down vagrancy laws and laws based on certain personal “characteristics.” For example, an ordinance from Jacksonville, Florida, was declared unconstitutional that punished, among others, “persons who use juggling or unlawful games or plays…persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers…persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of their wives or minor children” as vagrants. To the Court, this law cast too wide a net and left too much unpredictable discretion to the police to provide a suitable (and constitutional) rule of law. Punishing (defined) aggressive begging is one thing; punishing people “hanging out” is another.

In similar vein, a New Jersey statute that penalized “gangsters” was struck down because it did not provide a usable definition. More recent anti-gang statutes and injunctions have survived constitutional scrutiny because they prohibit defined gang activities, rather than mere status as a gangster. Led by California’s Street Terrorism Enforcement and Prevention Act and the state’s pioneering use of anti-gang injunctions, a majority of states have enacted this type of legislation. The federal government also targets gangs through the Racketeer Influenced and Corrupt Organizations Act (RICO), which punishes gangster-focused conduct. The latter example also shows the dangers of broadly-worded laws, as the statute for a couple of decades was used against targets, such as financial institutions and other businesses, well beyond the intent of the statute’s drafters. One critic claimed that the only groups not targeted under the law were actual racketeers.

The courts recognize, however, that statutes are inherently vague. Language has its limits. Indeed, requiring too much definition would likely make a statute more ambiguous by increasing its complexity and verbosity. Moreover, statutes look forward and are intended to address actions still undone by persons still unknown. There has to be play in the joints. Conspiracy laws, and statutes that prohibit mail and wire fraud, “unreasonable” restraints of trade, or conduct that the “reasonable person knows would annoy another by creating an unreasonable noise” provide sufficiently precise notice. Insufficiency of notice of the charges based on the purported vagueness of a law is almost invariably a futile argument. A defendant whose only hope for avoiding conviction is based on such a tactic is well advised to seek a plea bargain.

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

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March 27, 2012

Essay #27

Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

http://vimeo.com/38540555

Amendment V:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The 1999 movie Double Jeopardy, starring Ashley Judd and Tommie Lee Jones, focused on a wife who was wrongfully convicted of murdering her husband who had staged his own killing. One theme suggested by the title and by some scenes of prison lawyering is that, having once been convicted of murder, the wife could not be tried again if she now murdered her husband. Hardly.

The protection against double jeopardy is deemed a fundamental human right with a tradition well-entrenched in Western Civilization going back at least to ancient Roman law. The doctrine was part of the English common law long before the Constitution, although, curiously, express double jeopardy protections were not well-represented in the early state constitutions or in the proposals for amendments submitted by the state conventions that ratified the Constitution. Incidentally, the phrase “life or limb” today is read as “life or [physical] liberty,” since drawing-and-quartering and other punishments that produce corporal maiming have gone out of style and would likely constitute “cruel and unusual punishment” in violation of the 8th Amendment.

In Green v. U.S. in 1957, the Supreme Court justified the doctrine as reflecting

“the underlying idea…that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense, and ordeal compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.”

On that last point, if the state gets numerous turns at bat, it only needs to be successful once, which produces significant incentive to try repeatedly. At the very least, such tactics will cause more defendants, emotionally and financially exhausted and faced with the deeper resources of taxpayer-funded prosecutors, to enter factually dubious guilty pleas.

The clause raises several questions. First, when does jeopardy “attach”? Second, what exactly can the government not do? Third, what exceptions are there?

Jeopardy attaches when a jury is empanelled and sworn. If the trial is to a judge only, it attaches when the first witness is sworn. If there is a guilty plea, it attaches when the court accepts the plea. An acquittal by the judge or jury bars the government from appeal because a retrial for that offense would violate the double jeopardy rule.

Notice that the government cannot retry the offender for the same offense. What if a defendant is acquitted of robbery, which combines larceny (taking and carrying away another’s personal property without consent and with the intent to deprive him of the property permanently) and assault (intentionally creating a reasonable apprehension of immediate bodily injury)? Can the prosecutor now seek to try the defendant for larceny and/or assault arising out of the same criminal act? The common sense reaction is “no.” That is also the legal stance, because two crimes constitute the “same offense,” unless each of them has at least one additional element that is different from the other. Here, while robbery has a different element than either larceny or assault (since it is a combination of the two), neither larceny nor assault has any additional element from robbery. A prosecutor who has failed in a prior trial cannot proceed against the same defendant for a “lesser-and-included” offense.

Likewise, a prosecutor who, for example, successfully prosecuted a defendant for larceny and has that conviction under his belt subsequently cannot roll the dice again and seek to try that defendant for the greater crime of robbery out of the same transaction. The lone exception to that rule is that a prosecution for battery (unlawfully using force against another that causes bodily injury) does not bar a subsequent trial for murder if the victim eventually succumbs to his wounds from the attack.

While the rule gives defendants some basic and significant protections, it is also riddled with exceptions and qualifications. In that vein, a hung jury is no bar to retrial. Neither are certain motions for mistrial by the defendant where the mistrial is not caused by prosecutorial misconduct. For example, conditions arise that make a continuing fair trial impossible in that location. There is also generally no violation of double jeopardy for a retrial if the defendant appealed and was successful in overturning the earlier verdict, or if the prosecution successfully appealed a trial court dismissal of the case when there was no acquittal but the trial court based its decision on a legal motion.

Significantly, double jeopardy does not apply to non-criminal proceedings. A public official who is impeached and removed from office for a crime can also be prosecuted for that act under the criminal law. In similar vein, a defendant who is convicted or acquitted in a criminal trial can be sued by the victim for a civil wrong. A notorious example of that is the former football star and advertising pitchman O.J. Simpson. Despite his acquittal of murder charges for the killing of his estranged wife and another victim, he was subsequently found liable for civil damages for “wrongful death.”

Returning to our movie, yet another exception shows the lack of reliability of jailhouse lawyering (or of Hollywood screenwriters). The double jeopardy clause does not apply to different sovereigns. Conviction or acquittal under the laws of one sovereign does not bar a different sovereign from prosecuting the defendant under its law for the same charge arising out of the same conduct if the conduct affected that sovereign. Although they usually avoid duplication, the state of California could prosecute a drug dealer for violation of its drug laws and then turn the perpetrator over to the federal government for prosecution under federal drug laws. A version of that was the 1993 federal prosecution of four Los Angeles police officers for violation of federal civil rights laws arising out of the use of excessive force in arresting Rodney King in 1991. The officers had mostly been acquitted in a 1992 state prosecution arising out of the same incident.

The legal assumptions of the movie are flawed. Being wrongfully convicted of murder may entitle the defendant to civil damages from the government. But it does not create a dispensation from prosecution for a subsequent murder. The Constitution has no “get-out-of-jail-free-for-murder” coupons to be redeemed as the occasion demands. More pertinent, had Louisiana prosecuted the movie’s protagonist for the murder of her husband, the prior prosecution by the state of Washington would not have placed her twice in jeopardy of life or limb for the same offense.

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

March 15, 2012 

Essay #19 

Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

Amendment II:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Amendment II: A Well Regulated Militia Being Necessary to the Security of a Free State

When Paul Revere and his companions alerted the Massachusetts countryside of the movement of British troops, he warned his fellow-British subjects, “The Regulars are coming out.” In contrast to those troops, with their standard drill, formations, equipment, and armament, the Patriot combatants at Lexington and Concord (as well as Revere himself) were “Minutemen,” a lightly-armed, organized rapid-response component of the colonial militia. As all such militias at the time, they were “irregulars,” though the quality of the Minutemen’s equipment and training was superior to that of the militia as a whole. The distinction between such organized parts and the general militia was continued by the states, and, beginning in 1792, in the second federal Militia Act. It is a distinction that, despite changes in the nature of the militia concept, is preserved in current law.

Militia service in the colonies/states extended to all men able to bear arms, subject to some variations as to age and race. Universal service was both a practical necessity—the need to deal with insurrections and with Indian raids—and a reflection of the ancient republican idea that military service was a necessary, though not sufficient, qualification for participation in the community’s governance. Laws also typically required that individuals keep arms sufficient to serve in the militia. In fact, the armament of individual militiamen varied widely, from military-style smooth-bore muskets (e.g. the “Brown Bess”), to—more rarely—longer-range but slower-to-reload rifles, to fowling pieces and other less useful weaponry. Due to these and other limitations, militia units were found ineffective and unsuitable for pitched battle. In the field, they were used mainly for irregular, partisan-style warfare and, as adjuncts to regular units, for sniping and for harassment from the flanks of the line of battle.

There were frequent complaints about the militia’s performance. In a letter to the Continental Congress, General George Washington acidly passed judgment:

To place any dependence on the Militia, is, assuredly, resting upon a broken staff. Men just dragged from the tender Scenes of domestic life; unaccustomed to the din of Arms; totally unacquainted with every kind of military skill, which being followed by a want of confidence in themselves, when opposed to Troops regularly trained, disciplined, and appointed, superior in knowledge and superior in Arms, makes them timid, and ready to fly from their own shadows….

Alexander Hamilton, who made the jump from a New York militia artillery unit to the Continental Army, was more conciliatory, magnanimously softening his criticism with praise in Federalist 25:

The American militia, in the course of the late war, have, by their valour on numerous occasions, erected eternal monuments to their fame; but the bravest of them know and feel, that the liberty of their country could not have been established by their efforts alone, however great and valuable they were. War, like most other things, is a science to be acquired and perfected by diligence, by perseverance, by time, and by practice.

Hamilton supported a standing army. But, as Elbridge Gerry and other anti-federalists argued, the militia was a necessary bulwark against the dangers from a national standing army. Still, the war-time experience described above could not be ignored. To be effective, such a militia had to be “well-regulated.” To “regulate” was to standardize, to conform to a norm, here, standard weaponry, equipment, and drill. The word did not have today’s principal connotation, to “control”; the early American word for the latter was the government’s power to “police.”

The Constitution’s critics were alarmed that Congress was given the power under the Constitution to “provide for organizing, arming, and disciplining the Militia….” In the minds of suspicious republicans, this afforded Congress the means to establish only a “select militia” under national control, in effect creating a national standing army by another name and laying the states prostrate at the feet of the national Leviathan. Moreover, like the 17-th century Stuart kings, Congress could complete the tyranny by passing laws to disarm individual Americans.

To lessen that potentiality, the Second Amendment was adopted for what has been described today as, figuratively speaking, a “nuclear option.” To the extent that Congress does not regulate the militia, the states are free to do so under general principles of federalism, as the Supreme Court recognized in 1820 in Houston v. Moore. The Second Amendment is not needed for that possibility. But if the Congress seeks to disarm the citizenry that composes the militia, recourse has to exist to first causes, here, the ultimate right of the people to defend their liberties, their “unalienable rights” with which they are “endowed by their Creator.” As the Minutemen did in opposition to King George, the people have the right to organize themselves into militias if the states are impotent to oppose a national tyrant. That right belongs to each individual, though it would be exercised collectively, just as the First Amendment’s right to assemble to petition the government for a redress of grievances would be. It is crucial to an understanding of the Second Amendment to keep this point in focus.

Then why did the Framers not just write that there is a personal right to own guns? Describing the Second Amendment, Supreme Court Justice Joseph Story wrote in his influential 1833 treatise on the Constitution, “The militia is the natural defence of a free country….” He then famously continued, “The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers….”

Notice the division and simultaneous relation between the reason for the policy and the definition of the right itself. It mirrors the division in the Second Amendment, both in the original draft version presented by James Madison to the First Congress and in the restyled final version. The pattern for the Second Amendment, as for much of the rest of the Bill of Rights, was the English Bill of Rights of 1689, which, too, set up a similar textual division between concerns over the threat from standing armies and the right of the people to have arms. With some internal variations, early state constitutions maintained that distinction. Within the states, the danger from standing armies would come from their own governments, which would also be the ones to organize their militias. If the right to keep and bear arms in those constitutions applied only within the state-organized militia, rather than as an individual right, it would hardly present an obstacle to a potentially tyrannical state government. Continuing the trend, petitions for a bill of rights submitted by the state conventions ratifying the Constitution again contained this familiar distinction.

Nor is the existence of a prefatory clause in the Second Amendment unusual. While the structure is different from that of the other amendments, the Second Amendment’s style was quite ordinary at the time, as a quick review of the English Bill of Rights, colonial charters, the Northwest Ordinance of 1787, state constitutions, state convention petitions, and other foundational documents amply shows. During the early Republic, such bills of rights were often viewed, as Hamilton dismissively argued in Federalist 84, as mere “aphorisms…which would sound much better in a treatise of ethics, than in a constitution of government.” Such explanatory clauses allowed for ringing philosophical declarations. Today, such clauses have no legal effect but can shed light on the ratifiers’ motivation for mentioning the provision and can help clarify ambiguities. Still, as Justice Antonin Scalia wrote in his extensive analysis in the 2008 gun rights case, D.C. v. Heller, a prefatory clause cannot limit a well-understood right.

If it is said that a vigorous First Amendment makes possible a healthy republic, a vigorous Second Amendment is needed to ensure it.

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

March 5, 2012 

Essay #11 

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Amendment XXIV

1:  The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax.

2:  The Congress shall have power to enforce this article by appropriate legislation.

A poll tax is an ancient device to collect money. It is a tax on persons rather than property or activity. As a regressive tax from the standpoint of wealth, it is often unpopular if the amount at issue is steep. But it can also be unpopular for other reasons.

In the United States, such a capitation tax was assessed in many states on the privilege of voting. Amounts and methods varied. One of the last poll taxes of this type, that of Virginia, was just $1.50 per person at the time it was struck down by the Supreme Court in 1966. That is not more than $10.00 in current money, hardly an exorbitant price, except for the truly destitute. But the problem was more than the amount. It was the manner of administration.

The common practice was to require that the tax be paid at each election, and that a potential voter demonstrate that he had paid the tax for a specified number of previous elections. If not, those arrearages had to be paid to register to vote in the ongoing election. The effect of the tax was to hit many lower income groups, but primarily Southern blacks, whose participation in elections dropped to less than 5% during the first part of the 20th century. To be sure, that low rate of participation was not entirely due to the poll tax, but that tax was a particular manifestation of a regime of suppression of political participation by blacks.

The 15th Amendment had been adopted to prohibit overt racial discrimination in qualifying to vote. However, the poll tax and other restrictive measures, such as literacy tests, were not, strictly speaking, race-based, so they did not come within the 15th Amendment. A different solution was needed, according to those who saw the poll tax as intolerable. Literacy tests, if fairly administered (though often they were not), had a clear connection to the responsible exercise of the voting franchise that poll taxes lacked. After all, especially in those years before the electronic media, having a literate electorate was a significant community interest. Republican theory has traditionally looked to having those with the most interest and highest stake take the leading role in the community. Literacy provided a foundation to acquire the knowledge needed for a wise and effective participation in res publica. Poll taxes, on the other hand, are just revenue-raising devices, and, since they are applied equally per capita, they are removed from republican considerations of having those with the highest economic stake in society direct the political affairs of that society.

Opposition to the poll tax increased during the 1930s and President Roosevelt briefly attacked it in 1938. But FDR had to be mindful of the powerful influence of Southern Democratic barons in the Senate and the crucial role that the Southern states played in the politically dominant Democratic coalition. By the 1940s, the House of Representatives passed legislation to outlaw poll taxes but a Southern-led filibuster in the Senate killed the effort. By 1944, the Republican Party platform and President Roosevelt (though not his party’s platform) called for the tax’s abolition.

Eventually, qualms arose about using ordinary legislation to block the tax. Article I of the Constitution places principal control over voter qualification in the hands of the states. The 15th Amendment (race) and the 19th Amendment (sex) had limited the states’ discretion. To many—even opponents of the poll tax—the message from those amendments was that limitations on state power had to proceed through specific constitutional amendment. The opinions issued by the Supreme Court seemed to echo those sentiments, as the Court had accepted the predominant role of the states in that area even when it struck down the racially-discriminatory “white primaries” in the South in the 1940s and 1950s. The debate allowed Southern supporters of the poll tax to characterize the controversy as a states’ rights issue.

The effort to adopt a constitutional amendment to ban poll taxes dragged on through the 1950s into the 1960s, even as support for the tax grew weaker. Literacy tests remained widespread, even in the North. But Southern states, too, abandoned poll taxes until, in 1960, only 5 states retained them. Finally, in March, 1962, the Senate approved what would become the 24th Amendment. This time, no Southern filibuster occurred. In August of that year, the House concurred. The concerns over state sovereignty remained, in that the amendment proposed to abolish poll taxes only in federal elections, leaving states and municipalities free to continue the practice for their internal affairs.

When the amendment was sent out to the states, every state of the old Confederacy, but two, refused to participate, still portraying the matter as a states’ rights issue. The two exceptions were Mississippi, which formally rejected the amendment, and Tennessee, which approved it. Outside the South, every state adopted the amendment between November, 1962, and March, 1964, except Arizona and Wyoming.

But, as mentioned, states were still free to adopt poll taxes for local elections. This apparently was a call to action for the Supreme Court. Casting constitutional caution to the wind, the Court in Harper v. Virginia Board of Elections in 1966 struck down the Virginia poll tax for state and local elections. Creating an odd alloy of different constitutional concepts, due process and equal protection, Justice William Douglas announced for the majority that poll taxes impermissibly discriminated on the basis of wealth and/or improperly burdened a fundamental right to vote. In any event, the opinion announced, the Virginia tax violated the 14th Amendment.

The Court obviously was aware of the 24th Amendment, so recently adopted. But the learned justices must have found the effort to amend the Constitution through the proper Article V process unsatisfying. It appears that the 24th Amendment, having been limited to federal elections to avoid further intrusion into state sovereignty over voting qualifications, was not constitutionally rigorous enough. The Constitution, as it thus stood, was unconstitutional in the eyes of the Supreme Solomons. If the Court was right in Harper, members of Congress and of the state legislatures could have saved themselves much trouble and just used the 14th Amendment to declare all poll taxes unconstitutional. Congress could have accomplished the goals of the 24th Amendment, and more, just by passing a law to enforce these supposed rights protected under the 14th Amendment.

Of course, traditionally the 14th Amendment was not understood to provide direct restrictions on state control of voting qualifications. Otherwise, the 15th Amendment, as it applies to states, would have been unnecessary. The Court had used the 15th Amendment to strike down certain voting restrictions on race earlier in the 20th century, and did not even begin to take gingerly steps towards the 14th Amendment until striking down the “white primaries.”

Not much significance, other than as a symbol and a constitutional curiosity remains of Harper. The Court since then has repudiated the notion of wealth as a constitutionally “suspect” classification entitled to strict judicial scrutiny under the equal protection clause. As well, the notion of voting as a fundamental right protected under the due process clause, has had a checkered history.

Rights conceptually are “fundamental” if they do not depend on a political system for their existence; they are “pre-political” in the sense of the Anglo-American social contract construct that the Framers accepted. Freedom of speech and the right to carry arms for self-defense come to mind. Voting is an inherently political concept that does not exist outside a political commonwealth, and the scope of the voting privilege (that is the meaning of “franchise”) is, necessarily, a political accommodation. Even republics, never mind monarchies, have no uniform understanding of who may be qualified to vote. The great historical variety of arrangements of republican forms of government, and the inherently political nature of defining them, is one reason the Supreme Court has not officially involved itself in defining what is a republican form of government guaranteed under the Constitution.

A final word about the 24th Amendment: Historically, many republics, including the states in our system, required voters to meet designated property qualifications, as a reflection of having a sufficient stake in the community to vote responsibly (and to pay for the cost of government). Strictly speaking, the 24th Amendment does not forbid those. The Supreme Court has upheld property qualifications for voting for special governmental units, such as water districts. One wonders, whether the abolition of such qualifications, if they were required in all elections, would need a constitutional amendment today, or whether the Supreme Court would just wave the magic wand of the 14th Amendment, as it did in Harper.

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

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Amendment XVIII

 

1:  After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

2:  The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

3:  This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

Prohibition was not a novel idea in 1919. It was part of a social reform movement, the first waves of which had lapped American shores during the middle of the 19th century. It was a movement different from the ecclesiastical Great Awakenings that had surged periodically through the American colonies, though it shared some connection with those movements. Still, these reforms were sufficiently novel and widespread to lead Ralph Waldo Emerson to characterize them as a “war between intellect and affection” and its adherents as “young men…born with knives in their brain.”

Thirteen states had passed laws that prohibited the sale of alcohol by 1857, including, incredibly from a 20th-century perspective, New York. Following the Civil War and abolition of slavery, the enthusiasm for social reforms in general was exhausted in favor of a general yearning for a return to normalcy. But it returned with a vengeance towards the end of the century, with prohibitionists joining women’s rights groups to combat “demon rum.” That urge fed into a broader social movement to better the human condition and, indeed, human nature. While reformation of the human soul previously had been mainly the province of religion, the remaking of human nature had become, by the 20th century, as much a secular as a religious project. The growing middle class, “social science” movements in the study of human institutions, modern psychology, and old-style political power calculations combined in the Progressive Movement. Its adherents sought to improve human beings, as well as institutions, whether or not those human beings or institutions wanted to be improved.

The Progressives looked to the power of the state, not to individuals or private groups, to get things done efficiently. For many of their leaders, such as Princeton professor (and eventual U.S. President) Woodrow Wilson and his later advisers, such as Herbert Croly, the old institutions, such as the Constitution and the courts, were anachronisms that prevented the emergence of a better order, led by an enlightened and [P]rogressive elite. To achieve what critics then and now have characterized as totalitarianism of more or less soft type, these Progressives looked to the law as the tool to forge the new order. Law was no longer a series of constructs that reflected an inherent reason and that was useful to provide some rules to maintain a basic order in society. For the Progressives, the law was nothing less than an extension of social policy.

Alcohol prohibition also reflected the Progressive impulse to national mobilization to address issues, and the desire for a strong national government led by a strong and charismatic leader. It is not coincidental that these traits were also found in various continental European mass movements that sought to establish the new man, freed of traditional human weaknesses. The American version may have lacked some of the more pugnacious aspects of its European counterparts in Italy, Spain, Germany, and the Soviet Union, but it was close enough. As the National Review writer Jonah Goldberg has written, the period was one episode of America’s “Liberal Fascism.”

Prohibition previously had primarily been the project of the states, with Congress and the Supreme Court assisting “dry” states by declaring that their prohibitions did not violate federal control over interstate commerce. By 1913, in the Webb-Kenyon Act, Congress went further, by affirmatively forbidding the shipment of liquor in interstate commerce into dry states. Thus, prohibition became a national matter, a development also reflected in federal criminalization of drug trafficking, gambling, and prostitution. All of those were vices that the Progressives (just like their reformist ancestors) saw as products of a craven humanity that needed to be—and could be—reformed, while their critics saw such activities as necessary social safety valves, inevitable for societies composed of humans that could, at most, be nudged towards slight and gradual enlightenment at the cost of great personal effort of which most people were incapable. For the critics, laws against such behavior had the same effect as telling the tides not to come in (or commanding the sea levels not to rise).

By 1919, the Eighteenth Amendment completed the process by prohibiting the manufacture, transportation, and sale of intoxicating liquors within the United States. Later that year, Congress acted on the authority it had under that amendment and enforced national prohibition through the Volstead Act. That law set the maximum permissible alcohol content at 0.5%, an amount that outlawed anything stronger than juice from stored oranges.

In light of the negative historical reputation that has developed around Prohibition, it bears remembering that the concept was hugely popular initially. It took barely one year for the needed 36 states to approve the 18th Amendment. However, that support turned to opposition within a very brief time, in the process raising a number of constitutional questions about that amendment specifically, and about the constitutional amendment process more generally.

A novel attribute of the 18th Amendment was a clause that required the amendment to be adopted within 7 years. When the issue was presented to the Supreme Court in Dillon v. Gloss in 1921, Justice Willis Van Devanter upheld this limitation for a unanimous court. Van Devanter concluded this clause was not part of the amendment, but part of Congress’s resolution of submission of the amendment to the states. Therefore, such a clause did not violate Article V, which deals with amendment of the Constitution.

Van Devanter’s opinion was important for the proposed Equal Rights Amendment of the 1970s. When that amendment failed to gain passage during the time (7 years) set, Congress by a majority vote—but not two-thirds—added three years to the timetable for adoption. While this action arguably was constitutional in light of Dillon, it came at a political price. Opponents made an effective case that the extension was political overreaching, at best, and unconstitutional, at worst.

The Dillon court had also declared that it was a good idea that constitutional amendments be adopted within a certain time-frame, to reflect a dominant political consensus at a particular time. Van Devanter noted that there were still several proposed amendments that had not been ratified, including two from the original twelve in the Bill of Rights. He questioned whether such an amendment would be legitimate, if adopted after such long dormancy. That hypothetical became concrete when the 27th Amendment (dealing with Congressional pay changes) was adopted by the requisite number of states in 1992, after two centuries of constitutional purgatory.

Interestingly, Van Devanter may have had a point because the practice has been not to allow states to rescind their approval of an amendment even though the amendment may not have been adopted on the date of the attempted rescission. Of course, states are free to approve after having previously refused to adopt the proposal. This one-way ratchet in favor of approval has little to recommend it jurisprudentially over the opposite view. It was simply the product of political necessity, when Congress refused to allow states to rescind approval of the 14th Amendment because the unpopular and controversial amendment’s congressional supporters needed every state they could to get it past the constitutional finish line.

Another curiosity of the 18th Amendment was that, as disillusion set in, many of the new opponents were Progressives and elites of all political stripes. Due to the perceived difficulty of repealing the amendment, they urged nullification by having the states refuse to enforce the federal laws and decline to make their own. The irony of their position was not lost on them, as they openly appealed to the success that Southerners had enjoyed with their refusal to enforce the 14th and 15th Amendments. Sounding like John C. Calhoun and other 19th-century Southern apostles of nullification, these good liberals distinguished between lawbreaking and orderly, principled, majoritarian nullification.

Another question involved whether the Ohio legislature could approve the 18th Amendment when a non-binding popular referendum had resoundingly rejected it. In Hawke v. Smith in 1920, Justice William Day’s opinion for a unanimous Supreme Court held that the legislature, voting on a constitutional amendment was performing a federal function under Article V, not a state function. Since Article V did not provide for popular referenda, the voters of Ohio had nothing to say about the matter, a proposition of some delicacy, since state legislative elections rarely turn on how a legislator proposes to vote on a federal constitutional amendment that, typically, is not submitted until after such election.

Finally, a number of opponents urged that any amendment, such as the 18th, that curtailed individual rights, must be adopted by state constitutional conventions, not state legislatures. Though it was not expressly required by Article V, such had been the approach for the Bill of Rights. The Supreme Court rejected that argument unanimously in U.S. v. Sprague in 1931, but the argument had such political appeal that Congress directed that the repeal of prohibition through the 21st Amendment be decided by state constitutional conventions.

 

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

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The text of the Eighth Amendment, concise and plain, masks the fluidity that the Supreme Court has assigned to its words. The more intensely scrutinized portion, by far, is the prohibition against cruel and unusual punishments. There are two applications that have been particularly significant in recent years, the constitutionality of the death penalty and the application of the amendment to “enhanced interrogations.”

It would be fatuous for opponents of the death penalty to claim that the Framers understood the death penalty to be unconstitutional. The Constitution’s text belies such an assertion, because the Fifth Amendment three times makes it plain that the death penalty is a proper punishment for crime: “No person shall be held to answer for a capital…crime, unless on…indictment of a Grand Jury…; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb…, nor be deprived of life, liberty, or property, without due process of law.” Moreover, the common law at various times recognized capital punishment for a couple of hundred criminal offense.  Given the additional availability of whipping, branding, ear cropping, and other such forms of corporal chastisement, the Framers’ understanding of “cruel and unusual punishment” was restricted to those torturous punishments that stood out for their infliction of extended periods of particularly gruesome pain for no end other than the infliction of that pain, and that were applied with such extreme rarity as to undercut any realistic claim that they served a moral purpose such as retributive justice or moral reformation. An example would be the rarely-used, but then still available, punishment of drawing and quartering applied in exceptional treason cases in Britain.

To further the cause of modern death penalty abolitionists, the Court was obliged to impress upon the Eighth Amendment an interpretive mechanism that could supersede the specific textual recognition of the death penalty’s legitimacy. That mechanism is the judicial matrix of “evolving standards of societal decency” that would “guide” the Court’s interpretation of the Eighth Amendment.  Using “cruel” in a qualitative sense and “unusual” in a quantitative sense, this approach allows for a judicial finding that punishments that fall into comparative disuse, either by change in legislation or even through failure of prosecutors to seek the death penalty or of juries to impose it on a regular basis for certain crimes, become violations of the Eighth Amendment. Particularly galling to the opponents of this approach, such as Justice Scalia, is that the procedural hurdles created for the imposition of the penalty in past cases themselves are much to blame for the (comparatively) infrequent use of the death penalty.

Although the Court has not finally found the death penalty to violate the Eighth Amendment, the end is clear. Death penalty jurisprudence has been one instance of ad hoc judicial law-making after another.  Capital punishment, the Court once opined, is applied too haphazardly.  When states responded with mandatory death penalty laws and other restrictions on jury discretion, the Court found those wanting in that juries must be able to exercise discretion to impose the death penalty or not.  However, further decisions then determined that the jury discretion must be subject to specific guidance. Moreover, the judge must have the power to override a jury’s imposition of the death sentence, but not the other way around.  Juries must be able to hear any and all mitigating personal evidence for the defendant, dredging up every aspect of the defendant’s life that would place some blame for the crime, somehow, on some person other than the defendant.  On the other hand, aggravating evidence, such as about the victim whose life was snuffed out, had to be very carefully limited.

As to the “evolving standards of decency” test, the Court once declared that the Eighth Amendment must not cut off the normal democratic process. Yet, more recently, the Court, led by Justice Kennedy, has taken great pains to do just that, overturning laws that provided the death penalty for older juveniles who commit particularly heinous murders and for non-homicide crimes. Kennedy, in particular, while dutifully declaring the contrary, seems intent on imposing through the Constitution his own vision of the moral and “decent” society. The Court earlier pronounced that the “Eighth Amendment is not a ratchet, whereby a temporary consensus on leniency for a particular crime fixes a permanent constitutional maximum, disabling States from giving effect to altered beliefs and responding to changed social conditions.” Once more assuming the role of philosopher-king, Kennedy in the last capital punishment case, Kennedy v. Louisiana (2008), rejected the idea that the death penalty could be expanded (though, in fact, the law at issue there, capital punishment for aggravated child rape, did not “expand” the death penalty).  After all, that would not fit Kennedy’s Hegelian march of “evolving standards of decency…on the way to full progress and mature judgment.” So, there is only one direction of evolution, regardless of what the people might enact, one that leads, Kennedy all but assured the abolitionists, to the eventual demise of the death penalty.

In Roper v. Illinois (2005), the juvenile death penalty case, Justice Kennedy resorted to comparing the United States unfavorably with European systems, as well as with other, even less savory, exemplars of justice, and, as he has done in some other areas of constitutional law, invoked the decisions of his fellow Platonic guardians on tribunals overseas.  Due to the rebukes launched by Justice Scalia in his dissents, the Court is less inclined these days to feature that line of internationalist argumentation as a basis for guidance of the American Constitution in a direction Justice Kennedy finds to be more civilized.

International standards have also been used in attempts to limit the use of techniques to interrogate suspected terrorists. Leaving aside specific anti-torture statutes or treaty obligations, note that the Eighth Amendment itself only prohibits cruel and unusual “punishment.” Not only is this limited to torture and other extreme actions; the Court in past cases repeatedly has held that it applies only to punishment, not to other actions by the government. Hence the challenged behavior must be directed at “punishing” the individual. This distinction between punishment and other objectives in the use of force against prisoners is one long established in many Western systems of law, and one that the Framers clearly understood.

If a prisoner brings a claim that excessive force was used in violation of the Eighth Amendment, he must show that this was for the purpose of punishment. If the force or condition of confinement was for another purpose, the Eighth Amendment is not implicated.  Thus, the state of mind of the persons conducting the interrogation becomes important. Did they do so for purpose of discipline, security, or information gathering, or did they do so simply to punish? That state of mind can be demonstrated circumstantially by a number of factors, such as the asserted purpose of the treatment and the degree of force used in relation to the many varied circumstances that triggered the interrogation, an evaluation that implicates the proportionality principle that lurks in Eighth Amendment jurisprudence. Only if the actions go beyond the asserted disciplinary or investigatory needs, might the treatment amount to cruel and unusual punishment. As the Court has said in several cases, the prisoner must show that the government agent acted “maliciously and sadistically for the very purpose of causing harm.”

The prisoner might assert claims that the government violated Fourth Amendment standards against unreasonable searches and seizures, or, more likely, nebulous Fifth Amendment due process standards against treatment that “shocks the conscience.” Even if a foreign terror suspect kept overseas is entitled to those constitutional protections as a matter of right (an issue not resolved even by the Court’s Boumediene decision that, for the first time, granted such detainees access to the writ of habeas corpus), they might not help him.  The “shocks-the-conscience” test is particularly difficult to confine, and the Court employs a utilitarian approach. The Justices have made it clear that it is not just the severity of the method, but the degree of necessity for the challenged action, that will determine whether the consciences of at least five of them are shocked.  In any event, whether or not the justices are suitably shocked under the Fifth Amendment, the Eighth Amendment does not apply to careful methods used demonstrably for the purpose of extracting information.

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

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Article V

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Article V, which provides the methods for formal amendment is, arguably, the most important provision in the Constitution outside the creation of the structure of government.  That article embodies a compromise over a very contentious issue that was grounded in conflicting doctrines of republicanism and higher law theory swirling during the Revolutionary War period.

On the one hand, 17th and 18th century republican theory called for decisions by majority vote, albeit under a restricted franchise.  This was a proposition that manifested itself in the post-Glorious Revolution English constitutional system in which a majority of the Parliament (effectively, the House of Commons) not only enacted “ordinary” legislation but controlled constitutional change, as well. Under the English system, there was no categorical distinction between ordinary laws and those of a foundational, i.e., constitutional, nature.  For example, the Charter of Rights did not become politically binding until passed in 1689 as a parliamentary bill. This was a manifestation of a “constitution” that, being unwritten, was considered solely a fundamental political ordering, rather than also a fundamental law.  Hence, there was no formal constitutional amendment process outside an appeal to Parliament to pass or repeal laws that were “constitutional” in the operative sense.

This English Whig republicanism had many adherents in the United States among leaders of the Revolution. For them, the problem was not the theory but the practitioners.  Not surprising, then, some early state constitutions, too, placed the amending power with the legislatures.  Even if a state constitution contained a bill of rights that was immune from legislative tinkering, any violation of that command was to be resolved through political action.  Moreover, anything outside that bill of rights was left to legislative change.

Yet, by the 1780s, an entirely different conception became dominant. To be sure, reaction against the entrenched constitutional order arose from the experience of Americans with the militant republicanism of the day embodied in legislative majorities that, in too many states, contributed to political and economic turmoil exacerbated by class warfare rumblings and the trampling of rights in property. Experience may have sufficed to cause disenchantment with the existing constitutional structure, but it was not enough to explain the emergence of the alternative.

Enter the “higher law” conception of constitutions. Americans had lived in colonies governed, directly or indirectly, by royal charters. By their thinking, Americans were in a contractual, and therefore “legal,” relationship with their proprietors and the Crown through these charters and patents, and Parliament simply had no control over them. Local laws were valid, as long as they conformed to the charter.

This emergent “higher law” constitutionalism also had religious and political roots. Focusing on the latter, it was a component of social contract theory. The republican version of the legitimacy of governmental action under the social contract focused on the political mechanism to be used after the commonwealth was formed, namely, legislative majorities. The higher law doctrine focused on the relationship of the majority’s act to the qualitatively superior action of creating the commonwealth. In a strict version of that view, unanimous consent was required to form the social contract.  In the American experience, the Mayflower Compact provided one such example. At the same time, looking at disparate social contract theorists, such as Thomas Hobbes and John Locke, one finds much ambiguity and question-begging assumptions about how exactly the social contract’s obligations arise.

The colonial experience with royal charters fairly early suggested that such documents were first, law; second, fundamental; and third, not amendable as ordinary legislation. They were law because written and, being in the nature of contracts, binding on all signatories (and, perhaps, their successors). They were fundamental because they dealt with matters that went to the very organization of the political commonwealth. They were not amendable as ordinary laws because each free person had to consent to the changing of the deal that created the basis of political obligation and made the acts of government different from those of a brigand. If unanimity was impractical, at least a supermajority ought to be required. Thus, the charter for Pennsylvania as early as 1701 called for amendments to be adopted only upon 6/7 vote of the assembly.

A pure form of this approach was found in the Articles of Confederation. As the Articles can be considered the formal basis for the formation of a political commonwealth, the United States of America, and in light of the fact that the document repeatedly refers to that commonwealth as a “perpetual union,” it is a social contract.  As such, it could only be amended by the consent of all signatories to the compact, though, of course, a state might provide that a majority within its legislature sufficed to bind the state.

That unanimity requirement was quickly perceived as a parlyzing defect of the Articles.  When the Framers of the Constitution considered the matter, they believed that they had to find a way that avoided the potential for constitutional turbulence from radical republican majoritarianism as well as for constitutional sclerosis from rigid social contract-based unanimity. They urged that the supermajority requirements of Article V appropriately split the difference. This is not a matter readily settled.  The procedure has only been invoked successfully 18 times (the original ten amendments having been adopted at one time). What is clear, though, is that the relative difficulty of the procedure has allowed the unelected judiciary to take on the role of de facto constitutional amendment to a much greater extent than the Framers likely anticipated and than what is consistent with classic republican ideals.

Judging by early state experimentation, constitutional change was to occur, if anything, more directly through the people than Article V allows. Constitutions were typically the job of special conventions whose work would be ratified by popular vote.  Actions by such special bodies and by the people themselves were more immediate realizations of popular sovereignty than actions by legislatures, even by legislative supermajorities. George Washington characterized them as “explicit and authentic acts of the whole people.” It was impractical, however, at the national level, to have all people gather at town halls. Nor was it deemed practical — or wise — to have a national vote on amendments.

In Article V, the mechanism of popular participation is the convention. That mechanism is available for the proposal of amendments emanating from the states and the adoption of the amendments by the states. It is interesting, and perhaps disappointing from the republican perspective, that the first has never been used and the second has been used only to repeal another constitutional amendment, regarding alcohol prohibition. Instead, Congress typically proposes, and state legislatures dispose.

There is, however, an institutional reason why no constitutional convention has been called to draft amendments. Plainly put, Congress and the political elites fear that a convention could ignore any specific charge from Congress and draft a whole new constitution. That is, after all, what happened in Philadelphia in 1787. If a matter came close to receiving the requisite number of petitions from states, it is likely that the Congress would itself adopt an amendment and submit it to the states. That is precisely how Congress got around to proposing the 17th Amendment for the direct election of Senators after enough states submitted petitions to put them one short of the required 2/3. Currently, the proposed balanced budget amendment is just two states short.

More troubling to some is whether the people could go outside Article V to form a convention.  That was an issue raised, but not resolved, before the Supreme Court in 1849 in a case involving an insurrection in Rhode Island under the guise of adoption of a “popular constitution.”  Traditionalists point to Article V as providing the means the people have chosen to limit themselves, lest constitutional instability be the order of the day.  In response, republicans assert that American bedrock principles of popular sovereignty (found, among other places in the Federalist Papers) do not admit of so limiting the people’s power. The people ultimately control their constitution, not vice versa. James Wilson, no wide-eyed radical, speaking in the Pennsylvania ratifying convention, defended the Framers’ alleged departure from their charge by the Confederation Congress by declaring what was a self-evident truth to most Americans at the time, that “the people may change the constitutions whenever and however they please.”

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

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Article IV, Section 2, Clause 1-3

1: The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
2: A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.
3: No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

Of these clauses in Article IV, Section 2, the last, the Fugitive Slave Clause, similar to one adopted by the Confederation Congress in the Northwest Ordinance contemporaneous with the drafting of the Constitution, is now a dead letter. Another, the Extradition Clause, imposes a theoretical duty (“shall…be delivered”) on the state governors. But the Supreme Court ruled in 1861 that judicial compulsion, by writ of mandamus, was unavailable. As a result, governors have considered themselves at liberty to refuse requests for extradition when, in their opinions, justice so demands. Rather, the clause is enforced (more or less) politically through interstate compacts, uniform state laws, and (indirectly) federal fugitive-from-justice legislation.

The first clause, the (“Interstate”) Privileges and Immunities Clause, has a long pedigree, yet remains murky in meaning and ambiguous in scope. It is derived from Article IV of the Articles of Confederation (as are the Constitution’s Extradition and Full Faith and Credit Clauses). The existence of these clauses in both charters is evidence of the continuity reflected in the Constitution’s Preamble “to form a more perfect [not a new] Union.” These clauses also are one more manifestation of the bedrock federalism principle of union among states (rather than simply creation of a national government over the states) that runs through both charters.

The Constitution’s version of the P&I Clause is a redaction of the more compendious version in the Articles. Unfortunately, concision did not bestow clarity. Four different meanings have been advanced. The first is that the clause is actually a restriction on Congress not to pass laws that discriminate among different states and the citizens thereof. This interpretation received support from Justice Catron in his concurring opinion in the Dred Scott Case. It is constitutionally obsolete today.

Another interpretation is that the clause guarantees the citizens of each state various rights that are enjoyed by citizens in any other state. That view was specifically rejected by the Supreme Court a century ago. It would have given the Supreme Court the kind of power of review over state laws that it came to acquire more gradually through judicial expansion of the 14th Amendment by the “incorporation” of various Bill of Rights guarantees into the due process clause and the creation of new categories of unconstitutional discrimination under the equal protection clause.

A third interpretation is that the clause guarantees the right of a citizen of a state to exercise the rights that he has in his own state even when visiting another state, that is, to carry his rights of state citizenship throughout the Union. That view, as well, has been rejected by the Supreme Court, albeit implicitly, well over a hundred years.

The fourth, and constitutionally accepted, understanding is that the clause prohibits certain forms of discrimination by a state against citizens from other states who are sojourning within its borders. This creates a kind of equal protection principle. The Constitution had no clause that prohibited discrimination against (some) individuals overtly as the 14th Amendment’s Equal Protection Clause does today. But there were some clauses that operated through a limited and implied non-discrimination principle. The P&I Clause is one.

The P&I clause does not apply to corporations or other merely “legal” persons. Nor does it apply to aliens. Neither of those limits is significant today, in light of the Court’s expansive reading of the 14th Amendment. The P&I Clause also provides no minimum protections of rights. To the extent the state limits the exercise of rights of its own citizens, it may do so for outsiders coming into the state, at least under this provision. Outsiders have the right not to be treated unfavorably due to their status as visitors, but have no right to be treated more favorably.

Not all rights are protected. The exact definition has always been elusive. The seminal opinion in this area is a circuit court opinion by Justice Bushrod Washington from 1823, Corfield v. Coryell. He wrote: “We have 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.”

Such flourishes, while rhetorically satisfying, do not provide concrete guidance. Justice Washington carries on, but does little to penetrate the verbal fog; “What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole.”

He finally delivers himself of some examples of protected rights, privileges, and immunities. “The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise;…to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state….These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each state, in every other state, was manifestly calculated (to use the expressions of the preamble of the corresponding provision in the old articles of confederation) ‘the better to secure and perpetuate mutual friendship and intercourse among the people of the different states of the Union.’”

Such rights, deemed fundamental to the concept of a single nation, do not include the right to hunt game, to fish, or to engage in certain “quasi-public” businesses, such as insurance. Nor does it include a right to vote or to attend college at in-state rates, though, oddly, it includes the right not only to receive welfare payments without residency requirements, but to receive the same level of payment as those who have lived in the state for many years. To curtail even marginally the opportunities of welfare recipients to spend their “down time” in a state with higher benefits than their current domicile by having to meet the new state’s residency requirement is an intolerable burden on the right to travel. To be sure, the Supreme Court’s decisions on the matter rest on uncertain constitutional foundations, that eminent tribunal having referred to Article IV, to the Commerce Clause, to the 14th Amendment’s Equal Protection and (most recently) Privileges or Immunities Clauses as havens for a right to travel. Since states would like these welfare recipients to keep traveling, the Court has also re-characterized the right as “moving to another state.”

The P&I Clause of Article IV apparently was intended as a significant part of the constitutional edifice. With the Supreme Court’s inflation of the 14th Amendment, and Congress’ frequent resort to legislation under the commerce clause, it has become virtually redundant. Still, every decade or so, a case comes along to remind us that there is “still some life left in the carcass.”

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

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Article III, Section 2, Clause 1

1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;–between a State and Citizens of another State;10 –between Citizens of different States, –between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Article III, Section 2 defines the universe of federal jurisdiction (“shall extend to”). The kinds of issues included are defined either by the nature of the cause or the character of the parties. An example of the first is “federal question” jurisdiction, i.e., cases “arising under this Constitution, the laws of the United States and treaties ….” The second might be a dispute “between two or more States.”

This is not necessarily federal court jurisdiction. As some other provisions of the Constitution also underscore, the Framers expected that state courts would be significant, if not the principal, forums for federal jurisdiction. In that vein, the federal courts have never exercised the full federal jurisdiction available under Article III, Section 2. Moreover, unless Congress expressly requires that federal courts exercise exclusive jurisdiction over a matter, state courts have concurrent jurisdiction to hear “federal” issues. Congress rarely imposes such “exclusive” jurisdiction outside bankruptcy, patents, federal taxes, and immigration, and cases involving the United States as a party.

The focus of federal jurisdiction can change. During the early years of the Republic, there were few federal statutes, but much attachment to one’s state, with potential local prejudice against outsiders. Therefore, “diversity” jurisdiction (suits between citizens of different states) was more significant than “federal question” jurisdiction. Today, with the increased homogenization of Americans across states, and the explosion of federal law, the relative importance of the types of jurisdiction is reversed.

Federal courts, then, are courts of limited jurisdiction. The jurisdiction, indeed the very existence, of lower federal courts depends on affirmative grants from Congress. Only the original jurisdiction of the Supreme Court is guaranteed under the Constitution, though academics have argued (and Supreme Court opinions have strongly implied) that the Supreme Court also has the inherent power to review at least those lower court opinions that interpret the Constitution.

Once a federal court is authorized to hear a certain type of issue, it can exercise the full “judicial power,” a somewhat amorphous term that describes what courts “do” (e.g, resolve disputes between parties, issue final relief). However, the judicial power requires “cases” and “controversies.” A “controversy” in this context refers to a civil action or suit. A “case” can be either civil or criminal. The Supreme Court has declared that there is no functional significance from the use of one term or the other in the Constitution.

The “case or controversy” requirement limits the exercise of federal jurisdiction. There must be a concrete matter that involves a “live” dispute between adversaries. About a dozen states, such as Massachusetts, allow designated courts to issue “advisory opinions” on the constitutionality of laws at the request of certain parties, such as the state legislature. This is a common feature in foreign constitutional systems, preeminently the German Constitutional Court, which has emerged as the dominant alternative to the American approach. That system is “centralized” judicial review by a specialized court. The American system is “decentralized” judicial review, as any federal “Article III” court, as well as state courts, can decide constitutional questions. Such American courts also are not specialized, as they decide a host of other legal questions.

In a decentralized system of judicial review, the case or controversy requirement represents an important restraint on the inclination of a vast array of courts to inject themselves into constitutional matters. That said, the judiciary has often found ways to hear cases that appear collusive and to avoid hearing disputes it finds impolitic to decide. Related doctrines, such as the “standing” of a plaintiff to sue (has he suffered a clear enough injury) or the “ripeness” or “mootness” of a dispute (is there yet–or still–enough of a dispute), are very much driven by the facts of the particular case and do not lend themselves to neat and readily-applied tests.

Moreover, the Supreme Court as an institution may expand or contract these doctrines based on the attitudes of the justices towards the role of courts. Thus, the Warren Court greatly expanded the “standing” doctrine and made it easier in a number of ways for litigants to bring their disputes to federal courts. That judicial philosophy changed during the Burger and Rehnquist Courts, beginning in the mid-1970s, as Warren Court-era justices began to be replaced. The latest “standing” cases, decided by the Roberts Court concerning establishment clause claims, continue that trend.

More amorphous and less defined even than standing is the “non-justiciable political questions” doctrine. As early as Marbury v. Madison, the Supreme Court emphasized that there are certain kinds of cases beyond judicial review, even if all other particulars are met that would allow a court to hear the matter. Such cases may involve suits to enjoin the other departments from making discretionary political decisions, or attempts to review decisions by the other branches in military or diplomatic matters.

But the application of the doctrine is unpredictable, as a review of the federal courts’ recent approach regarding executive power in the conduct of the fight against terrorists shows. On the one hand, the Supreme Court injected itself into the executive’s domain by recognizing, for the first time (and implicitly overruling a contrary precedent), a right to habeas corpus for enemy combatant detainees not held in the U.S. On the other hand, the Court has not injected itself in other related matters, such as the admission of former detainees into the U.S. contrary to federal law and executive decision. Lower courts have cited the non-justiciable political questions doctrine to that end.

Article III, Section 2, clause 1, is also a pillar for the legitimacy of constitutional judicial review itself. It authorizes the courts to hear cases arising under the Constitution. Though the clause does not conclusively settle the question whether courts are free to disregard unconstitutional laws or must let the legislature repeal such laws (as some state courts determined), the federal judges early took the position that they are not bound by unconstitutional actions. During the 1790s, federal courts in several cases declared their power to exercise judicial review over state laws. More significant, one can identify four cases in which the Supreme Court explicitly or implicitly assumed a power to review the constitutionality of acts of Congress. All arose before Marbury.

Marbury v. Madison, decided in 1803, is the iconic case for judicial review. It has often been portrayed as revolutionary in that it “established” judicial review. It is more accurate to say that it is a political manifesto that provided a coherent defense of judicial review, but one that had already been made in other venues, such as Hamilton’s Federalist 78.

With one qualification, Chief Justice Marshall’s opinion is very cautious. As his wont was to avoid conflict with Jefferson, Marshall gave the President the specific result the latter wanted. Striking down the federal law was not novel, and the Jeffersonians’ criticism of the opinion was generally not directed at that part. The critics, instead, complained about Marshall’s implicit (and novel) claim that the Court could even issue direct orders to the President, an idea the Chief Justice tried to implement later, with mixed results, in a subpoena to Jefferson during the Burr treason trial.

Marbury, and Article III, also do not resolve whether the Supreme Court is the final arbiter of constitutional decisions. Presidents Jefferson, Jackson, Lincoln, Franklin Roosevelt, among others, asserted a “departmental theory,” that each branch is supreme within its own functions, lest one become “more equal” than the others. Marbury is best seen as a declaration of independence of the judicial branch from the others in a matter that directly involved the courts’ function. Extravagant notions of courts roaming far and wide as “final” or “ultimate” deciders of constitutional matters embody a more recent judicial conceit. While there are practical reasons that the judges’ views are entitled to respect from the other branches and the people, it is a blow against republican principles to declare that the opinions of judges are the Constitution itself.

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

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Article II, Section 2, Clause 3

3: The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

The National Labor Relations Board is a federal agency established under Franklin Roosevelt whose assigned duty it is to protect employees, while balancing the rights of unions and management. In an unprecedented move, it has recently moved to bar Boeing from opening a second aircraft assembly line in South Carolina rather than Washington state. In a second unprecedented move, the agency is about to reverse decades-old policy and allow unions to organize small groups of employees to gain a toehold in the company, rather than the entire company workforce at once (a more difficult project).

The agency currently is dominated by union lawyers, and one of the main advocates for these changes is Craig Becker, a controversial former lawyer for the SEIU, who has written that management should have no say whatever in unionizing activities. After his nomination was rejected by the Senate (on the failure of a cloture vote), President Obama nevertheless appointed Mr. Becker to the board a month later, while the Senate was in recess.

Recess appointments have been practiced since the Constitution went into effect. Initially, Congress was very much a part-time legislature, so there was an obvious need to allow the President to appoint officers to posts that might become vacant while the Senate was not in session. Indeed, that was precisely the early understanding. Vacancies might “happen” (in the terminology of Article II, Section 2, cl. 3) if they arise during the recess.

It may be asked why there is any need for recess appointments now that the Senate meets regularly during the course of the year. Surely, there is no need to have recess appointments just because the Senate is on a brief Easter recess or President’s Day long weekend. Even if the recess is longer, say during the month of August, it is unlikely that the President would even be able to gear up for an appointment until the recess is almost over. In the unlikely event of a government crisis, the Congress almost certainly would reconvene quickly. That said, recess appointments are useful for lower-level appointments on which the Senate has failed to act for some time. Moreover, they can protect the President’s constitutional prerogatives, if the Senate purposely seeks to weaken the President by failing to act on his nominations made while the Senate is in session.

Presidents have long interpreted the clause to give them a writ to make recess appointments for vacancies as long as those vacancies exist during the recess, even if they arose earlier. This interpretation has been upheld judicially. But even though it may be constitutionally justifiable, it raises serious political issues. Presidential appointments for vacancies that arise while the Senate is in session, but are not filled until the President can do so unilaterally when the Senate is in recess are delicate matters. Such appointments can easily be seen as end-runs around the constitutional blending and overlapping of functions.

Now add to that if the recess appointment is of an individual who was previously rejected by the Senate. The politics of such a move clearly invite Senatorial rebuke, and President Obama’s appointment of Craig Becker was lambasted by a number of Republican Senators.

As early as 1863, Congress tried to rein in recess appointments, by prohibiting payment of salary to anyone appointed during the Senate’s recess, until the Senate confirms. Today, the Pay Act, 5 U.S.C. 5503, prohibits such payments only if the vacancy already existed while the Senate was in session. The act also provides certain exceptions. For example, it does not restrict salaries of recess appointees if the nomination was pending when the Senate recessed. Neither does the salary restriction apply if the Senate, within 30 days before the end of a session, rejected a nominee of the President to the office. However, that exception, in turn, does not apply if the President during the recess appoints the rejected nominee. It should be noted that the end of a “session” is the end of the annual term. Thus, when Congress adjourns this December, it will be the end of the first session of the 112th Congress. Merely rejecting a nominee before a holiday recess is not the end of a session.

One wonders, therefore, whether President Obama’s NLRB man, Craig Becker, is entitled to payment of salary. One argument he might make is that the nomination technically was not formally rejected because it was filibustered and never came up for a vote on the merits. Since it was not withdrawn, the nomination technically was still pending when the recess occurred.

By statute, if a recess appointment is made, the appointee’s name must be submitted to the Senate soon after its next session begins. President Obama has done so with Mr. Becker. If the appointment is not confirmed, the officer may continue to serve, but must step down at the end of that next session. Thus, Mr. Becker’s term will end in December of this year, as he was appointed by the President in March, 2010. If Mr. Becker is rejected, he will not be permitted to draw a salary, if a routine provision to that effect in funding bills continues to be used.

Finally, the political virtuosity of the recess appointment device is shown by the fact that, even if the Senate rejects Mr. Becker, there will be new vacancies on the NLRB, and the President can wait for the next recess to appoint his ideological fellow to the agency once more. Mr. Becker could then serve until the end of 2012, again without Senate confirmation.

Unlike appointments to administrative or executive positions, recess appointments of judges are uncommon. Bill Clinton made one; George W. Bush made two; Barack Obama has made none so far. No President has made a recess appointment to the Supreme Court since Dwight Eisenhower, who appointed Chief Justice Warren, Justice Brennan, and Justice Stewart in that manner.

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

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Article II, Section 1, Clause 8

8: Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:–“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

When a new duke was installed in the old Republic of Venice, he took a prescribed oath of office that included a list of limitations on his power. Just in case his memory conveniently weakened as his fondness for office grew, the oath and its limitations were read to him in a formal ceremony every two months. Remembering the horrified reaction in some quarters in Congress when the new leadership read the Constitution at just the opening of this session, one is inclined to believe the Venetians were on to something.

Although the Constitution requires other officials to take an oath of office, the President’s is the only one expressly prescribed. One question that arose is whether the oath is a precondition to the assumption of office. George Washington took office March 4, 1792, yet did not take the oath until April 30 of that year. Similarly, the practice of the British constitution, with which the Framers were intimately familiar, was that the coronation oath might not be administered until some time after the heir’s succession to the vacant throne. The President assumes his office when the constitutionally-designated day, January 20, arrives. However, before the President can execute the functions of his office, he must take the oath. Under the current practice of inauguration (which increasingly does resemble a coronation) and the demands of office, the matter has ceased to have practical significance.

Of more continuing relevance is the question of the scope of independent power the oath gives the President. Just as the effectiveness of the periodic recitation of the Venetian oath on restraining executive excess depended largely on the confluence of political events and the duke’s personality, the use of the oath as a source of executive power by the President has been similarly shaped. President Lincoln cited his duty to “preserve, protect, and defend” the Constitution as ample authority for his initial steps to combat organized secession, though he sometimes also referred to the three other sources of broad implied executive powers, the “executive power” clause, the commander-in-chief clause, and the clause that requires him to “take care that the laws be faithfully executed.” In a defense of his actions made to Congress in July, 1861, Lincoln declared that he was acting under his oath to “preserve the Constitution” and the Union, when he called forth the militia to suppress the rebellion, proclaimed a blockade of Southern ports (an act of war), directed large increases of the Army and Navy, ordered $2 million (yes, that was a lot of money then) of unappropriated funds paid out of the Treasury, pledged the unprecedented and astronomical sum of $250 million of the government’s credit, and ordered the military detention and suspension of the writ of habeas corpus for those engaged in or “contemplating” “treasonable practices.”

Laying aside the emergency of the Civil War, the oath has been used by Presidents in more pedestrian ways to assert independent authority. The issue has come up in disputes between the Supreme Court and the President, and the Congress and the President. Early in our history, the “departmental theory” of judicial review dominated. That theory held that each branch was the final and independent interpreter of the powers entrusted to it under the Constitution. Jefferson wrote in 1801 that each of the branches of the federal government “must have a right in cases which arise within the line of its proper functions, where, equally with the others, it acts in the last resort and without appeal, to decide on the validity of an act according to its own judgment, and uncontrolled by the opinions of any other department.” Chief Justice Marshall in the Marbury Case used the oath he took as providing constitutional legitimacy for judicial review.

Madison echoed Jefferson. So did Andrew Jackson, Abraham Lincoln, Franklin Roosevelt, and others. The attorneys representing President Andrew Johnson during his Senate trial in 1868 on impeachment charges relied on the President’s independent constitutional position, validated by his oath of office, to defy the Tenure of Office Act of 1867. Johnson claimed that the act, adopted over his veto, deprived him of his constitutional powers to remove executive department officers by requiring him to obtain Senatorial consent before firing Secretary of War Edwin Stanton.

The issue continues to resonate. The President’s first duty, as so many incumbents have argued, is to the Constitution as the Supreme Law. Moreover, the President is an independent actor in that regard. Hence, the President can veto a bill from Congress if he believes it to be unconstitutional, even if the Congress and an existing Supreme Court precedent point to its constitutionality. Questions of greater constitutional difficulty and shadowiness arise about Presidential signing statements and the President’s refusal to enforce a law that has been duly enacted, the latter of which also implicates the President’s Article II duty of faithful execution of the laws.

Both issues are live political matters. Just as his predecessors did, President Obama has resorted to the very signing statements whose use by George W. Bush he vocally decried. The latest is a statement that he would continue to employ “czars” (presidential policy directors not subject to Senatorial confirmation) despite the fact that the budget he was signing after the deal reached with Congress prohibited funding for 4 such officials (out of 39). The President has claimed that the budget restriction violates his constitutional authority. Such statements are not given legal significance by the courts when interpreting the constitutionality of a statute, in part because they tend to be rather vague and thin on constitutional analysis. But they certainly are a measure of the President’s willingness to claim that his constitutional powers are not subject to Congressional limitation. At the same time, the statute is now the law of the land, and the President’s proper choice should have been to veto the bill, not to refuse to enforce parts, in effect signing a bill into law that was not the same as presented to him.

Not enforcing an already-existing and properly enacted law is the most troubling. For instance, the Obama administration has announced that it will not defend the constitutionality of the federal Defense of Marriage Act (DOMA), because the President believes the law to be unconstitutional. Yet, the law was adopted by a Congress and signed by a President (Bill Clinton) who must have believed the law to be constitutional. Moreover, there is no Supreme Court opinion that the law is unconstitutional, and there has been no great change in social conditions or political composition of the voters. While a President’s oath to support the Constitution gives him some leeway in administering law, and while a predecessor’s acts cannot inflexibly bind a President, in this matter the President’s position is at odds with the actions of Congress and two Presidents, of different parties. There is a tension between the President’s claim that the oath directs his first duty to the Constitution, and the Constitution’s own command that he faithfully enforce the laws.

These issues are not easily resolved. It is clear, however, that the oath is far more than mere formality. History has shown it to be another factor in the Constitution’s separation of powers and blending and overlapping of functions, swirling in the murky vortex where constitutional law and politics lose their distinctness.

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

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

 

Article II, Section 1, Clause 3

 

3:  The Electors shall meet in their respective States, and vote by Ballot for two persons, of whom one at least shall not lie an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; a quorum for this Purpose shall consist of a Member or Members from two-thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice-President.

When determining the mode for selecting the President, the Framers were faced with a conundrum.  The President was to be a leader who could act with energy and dispatch.  Yet he was to maintain his constitutional pedigree as a republican, and he must exercise wisdom and judgment.  It was hoped that the President would be, as Henry Lee said in his eulogy of George Washington, “first in war, first in peace, and first in the hearts of his countrymen.”  But the president was not to gain that position as an American Caesar, a man whose immense talents and genius also proved to be fatal to that ancient republic that Revolutionary War-era Americans so admired.

Perhaps even worse, because so much more likely in the ordinary case, would be the man who, lacking the genius of a Caesar, would gain office through “talents for low intrigue, and the little arts of popularity,” as Hamilton sneered in Federalist 68.  To Americans of the time, “popular” suggested a certain cravenness and lack of principle.  Such a person would do what advanced his political standing, rather than what was best for the country.  As Plato long ago warned in his description of the demagogue (Greek for “leader of the people”), this was a particular flaw of democracy.  Such a man was most likely to emerge in a system that placed no electoral barrier between the mass of the people and him.

Hamilton’s response during the Philadelphia Convention was a complex multi-layered proposal of election by electors selected by regional electors themselves elected by some class of voters.  Such a convoluted system resembles an electoral Rube Goldberg-contraption. However, the historically well-read Framers had the experience of other republics from which to draw, and Hamilton’s system was a simplified (if that can be imagined) variant of the election of the Doge of Venice.  A system of electors avoids the democratic pitfalls of election of unqualified flatterers by a people corrupted by promises of favors or bedazzled by a façade of handsome features and soaring, but empty, rhetoric.  But, without more, election by a council of the few does not avoid the oligarchic pitfalls and factionalism inherent in any cohesive and organized group, characteristics Madison warned against in The Federalist.  Hamilton’s proposal would increase the number of participants and disperse their decisions.  This made it more difficult for a candidate to gain office by corruption and intrigue through a small and cohesive faction.

The Framers did not go along with the particulars of Hamilton’s proposal.  But, after making the easy call against direct popular election and rejecting, as well, election by Congress or by the state legislatures, they settled on a system similar to the one proposed by Hamilton. In the process, they resolved several practical problems.  Every efficient electoral system has to provide for a means of nominating and then electing candidates. Moreover, civil disturbances over what is often a politically heated process must be avoided. There must be no taint of corruption. The candidate elected must be qualified.

As to the first, the Electoral College would, in many cases, nominate multiple candidates. Electors would be chosen as the legislatures of the states would direct. Though the practice of popular voting for electors spread, not until South Carolina seceded from the Union in 1860 did appointment by the legislatures end everywhere. Once selected, the electors’ strong loyalties to their respective states likely would cause the electors to select a “favorite son” candidate. To prevent a multiplicity of candidates based on state residency, electors had to cast one of the two votes allotted to each for someone from another state. It was expected that several regional candidates would emerge under that process. There likely would be no single majority electoral vote recipient, at least not after George Washington. In effect, the Electoral College would nominate the candidates.  The actual election of the President then would devolve to the House of Representatives, fostering the blending and overlapping of powers that Madison extolled in Federalist 51.  The winner of the House vote would be President, the runner-up would be Vice-President.

That last step corresponded to the Framers’ experience with the election of the British prime minister and cabinet, and with the practice of several states. However, consistent with the state-oriented structure of American federalism, such election in the House had to come through a majority of state delegations, not individual Congressmen. Though modified slightly by the Twelfth Amendment as a result of the deadlock of 1800, this process is still in place.

As John Jay writes in Federalist 64, the Constitution’s system would likely select those most qualified to be President. Augmented by the Constitution’s age requirement for President, the electors are not “liable to be deceived by those brilliant appearances of genius and patriotism, which, like transient meteors, sometimes mislead as well as dazzle.”

Having the voters select a group of electors, rather than the President directly, would also calm the political waters. By making that election something other than an immediate vote about particular candidates, the process would encourage reflection and deliberation by voters about the capacity for reasoned judgment of the electors chosen. The smaller number of wise electors, in turn, would exercise that judgment free from popular passion.

Hamilton and others assured Americans that corruption and the influence of faction would be avoided by the temporary and limited duty of the electors, the disqualification of federal office holders to serve, the large number of electors, and the fact that they would meet in separate states at the same time rather than in one grand national body. Presumably, those protections fall away when the House elects the President. But Congressmen have to worry about re-election and, thus, want to avoid corrupt bargains that are odious to the voters.

The system never quite worked as intended.  After Washington’s election, the nomination of Presidents was informally taken over by factions in Congress, in a process dubbed the Congressional caucus system.  That system immediately caused the untenable situation of a President (Adams) and a Vice-President (Jefferson) from opposing factions.  The debacle of the House-controlled election of 1800 brought about by the intra-factional rivalry of Jefferson and Burr placed the young American experiment in self-government in mortal danger. That, in turn, brought limited reform through the 12th Amendment.

Though the constitutional shell remains, much of the system operates differently than the Framers thought. The reason is the evolution of the modern programmatic party, that bane of good republicans, which has replaced state loyalties with party loyalties. The Framers thought they had dealt adequately with the influence of factions (political groups that focus on a particular issue or coalesce around a charismatic leader) in their finely-tuned system. As modern party government was just emerging in Britain and—in contrast to temporary and shifting political factions—unknown in the states, the Framers designed the election process unprepared for such parties.

Today, the nominating function is performed by political parties, while election is, in practice, by the voters. Elections by the House are still possible, if there is a strong regional third-party candidate. But the dominance of the two parties (which are, in part, coalitions of factions) suppresses competition, and the last time there was a reasonable possibility of electoral deadlock was in 1968, when Alabama Governor George C. Wallace took 46 electoral votes. Mere independent national candidacies, such as that of Ross Perot in 1992, have roughly similar levels of support in all states and are unlikely to siphon electoral votes and block the usual process.

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

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Article 1, Section 10, Clause 1

1:  No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

What if a state, laboring under a significant budget deficit, decided to repudiate its general obligation bonds?  What if that state, further, enacted an increase in the income tax, retroactive to the beginning of the year?  Would Article I, Section 10, clause 1 permit such actions?

The first part of that clause, along with clause 3 of the section, restricts the states to only a very limited capacity at international law, and states may exercise even that residue only with permission of Congress.  The Articles of Confederation restricted these powers already, as the exercise of them by the states would undermine national sovereignty.  The new Constitution simply tightened them and made them more concise, in recognition of the fact that these restrictions were an integral part of the establishment of a stronger Union.

The second part of that clause, dealing with money, bills of credit, and gold and silver as legal tender, addressed the pestilence of paper money issued by the states.  Many of the Framers saw this as a particular problem that contributed to the insecurity of property in various states and the economic turbulence that, in turn, produced political turbulence and threatened the republican experiment.  It had been the practice even of colonial assemblies to fund the costs of military campaigns by quasi-confiscatory practices of issuing bills of credit (paper money on the credit of the colony) to merchants and suppliers of war materiel.  After the war, those bills of credit rapidly depreciated, as the colonists declined to vote the taxes necessary to pay them.  Once the bills reached a sufficiently low level, they could be taxed out of existence relatively painlessly.

It was hardly surprising, then, that the states (and the Continental Congress) would resort to that same hoary practice on declaring independence.  By war’s end, Congress had issued $226 million in bills of credit, for which it had received $45 million in goods and services, as Americans increasingly took into account this species of public finance fraud.  However, the paper currency itself had depreciated essentially to nothing, a massive (and conscious) expropriation of private property by inflation, engineered by a body that lacked the formal constitutional powers to do so.  “Not worth a Continental” was not a metaphor.  Benjamin Franklin defended this confiscatory practice as an equitable form of taxation as these bills were held more by the upper-middle and upper segments of society than by the poor.  John Adams dismissed critics of the devaluation with a curt, “The public has its rights as well as individuals.”  In the end, Congress never redeemed the paper currency.

If the Congress was bad, in some ways the states were worse.  Not only were there problems with the emission of bills of credit (though that was less significant than for Congress), but with other, broader confiscatory and debt cancellation laws.  To the extent that such laws injured the interests of Loyalists and British creditors, they violated the peace treaty with Great Britain and threatened to reignite the war.  To the extent they hit their own citizens, the states were flirting with class warfare.  At best, even in the absence of a specter of violence, state politics circled around the vortex of the depreciated bills, as holders, speculators, and debtors (who were not always different persons) jockeyed for political and economic advantage.  This contributed to the instability of state politics and prevented establishing a basis for long-term social peace and material prosperity.

Historians, including conservatives such as Forrest McDonald, indict this period after independence for making Americans less secure in their property rights than they had been under King George.  To an increasing number of Americans, especially younger figures such as Hamilton and Madison who were not as tied to the “revolutionary spirit,” the reason was that “governments were now committing unprecedented excesses, even though–or precisely because–governments now derived their powers from compacts amongst the people.”  The period was a vivid illustration that democratic self-rule does not, without more, set a society on the path to the security of property and long-term well-being.  Even more alarming was the fact that those same state governments were acting under constitutions that nominally protected individuals’ liberty and property from just such majoritarian muggings.

It is no wonder then, that many of those who gathered at the convention in Philadelphia, viewed the levelling tendencies of such fiscal and redistributionist laws with consternation and as evidence of the irresponsibility of popular majorities.  There was no opposition to the portions of Article I, Section 10, that negated the states’ abilities to coin money, issue paper currency, or make anything but gold and silver legal tender.  Some delegates wanted that prohibition extended to Congress, but the majority demurred.  The need for paper money during emergencies, combined with the Madisonian faith that a more effective balance between debtor and creditor interests would produce better political checks against excesses at the national level than within the states, gave the majority pause about tying the hands of Congress.

In hindsight, both sides can claim vindication.  Certainly, the issuance of fiat money during the Civil War helped the Union’s war effort.  On the other hand, the flood of trillions of dollars sloshing around today during peacetime can easily become a tsunami that destroys the economic well-being of large numbers of Americans.  And, contrary to Franklin, devaluation and inflation typically hit the lower and middle classes more than it does the wealthy.  Inflation is a brutally regressive tax.

One tool of the Framers was to ban retrospective laws.  The first was the prohibition on ex post facto laws, one that also applied to the national government under Article I, Section 9.  Apparently many of the Convention (including Madison) thought that ex post facto laws covered all retrospective laws.  This produced a moment that demonstrates that the Framers were ordinary humans, finding their way through the constitutional fog, not infallible divine creators.  The day after the vote, John Dickinson sheepishly announced that he had looked up “ex post facto” in Blackstone and found (correctly) that this only prohibited retroactive criminal laws.

Similarly, bills of attainder (legislative decrees of punishment of individuals used expansively during the English Civil War, but not unknown even in the newly-independent states) were prohibited for the states and the national government, primarily because of their retroactive application to acts already committed.  Bills of attainder and ex post facto laws were viewed as such outrageous infringements of liberty that they were denounced as contrary to the protections of the social contract and the very nature of a republican government of free men.

But that still left the issue of retrospective civil laws.  The contract clause of Article I apparently was the vehicle to deal with the vexatious laws that, in tandem with the paper currency policies, cancelled debts or otherwise interfered with existing contracts.  Although the origin of the clause is obscure, it is similar to one found in the Northwest Ordinance of 1787, passed by the Confederation Congress.  The author at the Convention probably was Hamilton, who, after his personal experience with Pennsylvania’s capricious revocation of the charter of the Bank of North America, also saw the potential of the clause to protect banks and other corporations from state harassment.

The contracts clause was an early vehicle for the Supreme Court to promote the rule of law and the stability of rights in property.  Chief Justice Marshall, in particular, read the clause broadly to protect individual rights in contracts.  Indeed, his interpretation went so far as to prevent the states from interfering with the obligations of contracts even prospectively, a view that was probably beyond that envisioned by the Framers and which led to Marshall’s only dissent in a constitutional case in 34 years on the Court.

Much has changed since then.  Today, the Supreme Court has reinterpreted the categorical language of the clause to prohibit only laws “unreasonably” impairing the obligation of contracts.  This has effectively eviscerated the clause’s protections against most state laws that interfere with purely private contractual relations, even those that are retrospective.  States, and the federal government (to which the contracts clause does not apply directly), are relatively free to force creditors to revise terms of existing debt instruments, such as mortgages) when debtor interests gain enough political traction.

Neither of our hypothetical state laws would be unconstitutional under the ex post facto clause, as they do not deal with crimes.  There being no “contract,” the only limitation on the retroactive tax increase would be vague notions of “notice” to the taxpayers under the due process clause of the 14th Amendment.  The repudiation of state bonds would be a closer case, and states well may run into difficulties under the contracts clause if they were to try to repudiate their bonds (or to curtail vested public employee pensions).

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

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Article 1, Section 9, Clause 2 and 3

2:  The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.  3:  No Bill of Attainder or ex post facto Law shall be passed.

The Great Writ.  The writ of habeas corpus, protected in Article I, Section 9, clause 2, is often regarded as the cornerstone of the rule of law in Anglo-American jurisprudence.  Alexander Hamilton, writing in Federalist 84, approvingly quotes Blackstone that habeas corpus is the “ bulwark of the British constitution,” in that it prevents the “dangerous engine of arbitrary government” that comes from “confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten.”

Some historians trace the writ back to Magna Charta, although more definitive evidence shows a gradual emergence under the common law, culminating in the Habeas Corpus Act of 1679, during the reign of Charles II.  As Hamilton’s comment shows, the Framers were well aware of the writ.  Note that the Constitution does not “create” the writ; rather, Article I, Section 9, assumes the existence of the writ, but provides for its limited suspension.

Congress early confirmed the federal courts’ jurisdiction to issue the writ in the Judiciary Act of 1789, though the scope of the jurisdiction has changed over time.  It is even plausible, though not without doubt in light of 19th century precedent, that the power to issue writs of habeas corpus is so tied to the essential role of the federal courts that they could issue writs of habeas corpus even if Congress had not affirmatively recognized that power.

The writ is commonly said to be an instrument only to test the constitutionality of the detention, not to adjudicate the guilt or innocence of a detainee.  In other words, it is not the same as a right to appeal a conviction, but a “collateral attack” on the right of the government to detain the prisoner at all.  In some fashion, though, habeas corpus is broader than an appeal.  Rights of appeal are usually limited in time.  Petitions for habeas corpus traditionally were not so limited and could be brought repeatedly, years after trial.

There are two areas where the use of habeas corpus has become controversial in the last few decades.  One is the use of federal courts to challenge state criminal proceedings, especially in death penalty cases.  The other is the applicability of the writ to detainees in military custody.

As to state criminal proceedings, the problem began with the Supreme Court’s “incorporation” into the 14th Amendment of criminal procedure protections in the Bill of Rights.  This process, principally during the Warren Court, extended the federal courts’ supervisory powers over state court proceedings.  Justice Frankfurter as early as 1953 warned of the writ’s “possibilities for evil as well as good,” in light of the roughly 400 to 500 habeas petitions brought in federal court by persons in state custody.  By the end of the Warren Court, that number increased to 12,000 per year.  It continued to climb until the Rehnquist Court in the 1990s began to stem the deluge.

Today, habeas petitions are still a favorite pastime of “jailhouse lawyers,” as well as of attorneys who represent inmates with various complaints, from prison overcrowding or medical care to more individualized concerns about ineffective assistance of counsel in capital cases.  But federal laws and Supreme Court decisions now require petitioners to meet stiffer tests for such collateral review.  In part these restrictions have been justified by the perceived greater due process protections in state criminal proceedings compared to 50 years ago.  In part it is the conscious institutional desire of the Rehnquist and Roberts Court majorities to shift more business out of the federal courts into the state courts.  It is the latter, after all, who are the courts of “general jurisdiction” in our federal system.  In part it is simply the federal judges’ impatience with the sheer volume of repeated and frivolous petitions.  Even before the floodgates opened, only a very small percentage (6%) of petitions were found to have merit.  As so frequently happens, the increase in quantity over the years led to a further decrease in quality.

Regarding jurisdiction over people detained by the military, the writ has a checkered past.  Early in the Civil War, President Lincoln suspended the writ in a portion of Maryland (a de facto imposition of martial law).  In 1861, Chief Justice Taney issued the writ to the military jailer of a Maryland secessionist arrested for destroying railroad bridges.  When the military commander ignored the writ, the Chief Justice, in Ex parte Merryman, denounced Lincoln’s action, arguing that Article I, Section 9, dealt with limitations on Congress’s powers.  Therefore, only Congress could suspend the writ.

In classic implied executive powers fashion, Lincoln responded that the Constitution did not specify which branch could suspend the writ, only the conditions under which it could be suspended.  Moreover, the President could act due to the emergency involved.  Both Lincoln and his attorney general, Edward Bates, declared that the judiciary was incapable of dealing adequately with organized rebellion.  Bates, in his more detailed opinion, pointedly reminded the Court that the executive was not subordinate to the judiciary, but one of three coordinate branches of government.  The President took an oath to “preserve, protect, and defend the Constitution,” Bates asserted, and the courts were too weak to accomplish that task.

In 2008, the Supreme Court decided Boumediene v. Bush.  There, Justice Kennedy, in a 5-4 opinion, declared portions of the Military Commissions Act of 2006 unconstitutional, most significantly the portion that denied habeas corpus review to Guantanamo detainees.  Aside from a host of constitutional and practical problems with the Court’s opinion, particularly troubling was the Court’s extension of the writ to people outside the sovereignty of the U.S.  To do so, the Court had to distort the traditional Anglo-American understanding that the writ applied only within the nation’s territory.

While the writ has long applied to procedures of military courts, the Court previously made clear that it did not apply to acts of such courts outside the U.S.  Thus, in Johnson v. Eisentrager in 1950, the Court, speaking through Justice Jackson, rejected a habeas petition from German prisoners who had been convicted of war crimes by an American military commission and were held at an American military prison in the American occupation zone in postwar Germany.  The Eisentrager Court found “no instance where a court, in this or any other country where the writ is known, has issued it on behalf of an alien enemy, who, at no relevant time and in no stage of his captivity, has been within its territorial jurisdiction.”

Where Justice Jackson and others feared to tread, Justice Kennedy rushed in.  As Justice Scalia wrote in dissent in Boumediene, what drove the Court’s opinion was “neither the meaning of the Suspension Clause, nor the principles of our precedents, but rather an inflated sense of judicial supremacy.”  Precisely the attitude that President Lincoln and Attorney General Bates had emphatically rejected in their response to Chief Justice Taney.

Whether the Boumediene opinion has precedential virility, or whether it is merely judicial posturing, remains to be seen.  Justice Scalia feared that it is likely to be the former.  Early indications from the circuit courts suggest the latter.  Those courts have read Boumediene narrowly as applying only to Guantanamo, not, for example, to detainees at Bagram Air Base in Afghanistan.  If that interpretation prevails before the Supreme Court, Boumediene is mere institutional chest-beating.  More troubling, in the long run, is the possibility that Justice Scalia’s concerns are well-founded, and that the Court’s use of habeas corpus in Boumediene is part of the expanding notion of “lawfare” that threatens to tie down the President’s commander-in-chief powers through a web of legal regulations and procedures, an American military Gulliver tied down by legal Lilliputians.

As Justice Frankfurter warned, the writ has “possibilities for evil as well as good.”

Note: Professor Knipprath will address Article I, Section 9, Clause 3 of the United States Constitution in his upcoming essay on: Article 1, Section 10, Clause 1, Scheduled for publication on April 11: 1:  No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. 

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

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

 

Article 1, Section 8, Clause 18

18:  To make all Laws which shall be 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.

In a letter to Edward Livingston in 1800, Thomas Jefferson addressed the potential of infinite expansion of national power through the “necessary and proper clause” (Article I, Section 8, clause 18) after Congress chartered a mining company.  Jefferson 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..”

Who can doubt this, indeed?  Especially when, just last year, in U.S. v. Comstock, Justice Breyer led the Supreme Court in finding that the necessary and proper clause permits the national government to remit into federal civil commitment persons deemed to be sexually dangerous, even though the federal government could no longer hold them on a federal criminal charge. After applying one of the malleable multi-factor balancing tests he so favors, Justice Breyer determined that the necessary and proper clause permits Congress to enact laws that criminalize conduct that threatens the beneficial exercise of its enumerated powers; and that, therefore, Congress can imprison those who engage in that conduct; and that, therefore, Congress can pass laws to govern those prisons; and that, therefore, Congress can act as custodian of its prisoners; and that, therefore, Congress can pass a law that allows the federal government to keep those former prisoners “to protect the public from dangers created by the federal criminal justice and prison systems.” Besides, Breyer averred, the new law was only a “modest expansion” of Congress’s power.  Indeed.  Were he alive, Jefferson would recognize the game.

The necessary and proper clause is the Constitution’s version of the “implied powers” theory.  Congress is the American people’s legislative agent.  As such, the people gave Congress certain objectives to achieve.  It is a basic principle of agency law that the agent has not only the powers expressly assigned by the principal but, by implication, also those powers necessary to carry them out.  But there is no need for application of “implied powers” because the people, as Congress’s principal, themselves provided the means to carry out Congress’s assigned objectives.  The necessary and proper clause specifies that Congress has the power to make laws “necessary and proper for carrying into execution” the powers conferred by the Constitution on the federal government.

The clause has long been hotly debated.  Opponents of the Constitution, especially New York’s Robert Yates (“Brutus”), repeatedly warned of the dangers from an expansive interpretation of “necessary and proper.” They predicted that an unrestrained power to accomplish formally limited powers itself effectively created an unlimited power to legislate through pretext.  Madison, responding to Yates in Federalist 44, sought to tie the clause to the other powers in a luke-warm argument that made the clause sound like the least worst alternative the Framers faced.  Moreover, he attempted to narrow the meaning of the clause to those means that were “indispensably necessary” and “required.” Ultimately, however, Madison threw up his hands, effectively conceded the argument about the dangers, but urged the people to remain alert to usurpations by Congress.

The Supreme Court weighed in with McCulloch v. Maryland in 1819.  Chief Justice Marshall rejected the restrictive interpretation of “necessary” urged by the old anti-Federalist warhorse, Maryland’s wily attorney general Luther Martin.  Martin’s interpretation had support both in the dictionary meaning of the word at the time and Madison’s slips-of-the-pen in Federalist 44.  Although this decision is correctly read as providing the constitutional material for the 20th century’s “Big Bang” expansion of federal power, Marshall apparently believed he was much more restrained and cautious.  He even took the unprecedented step of defending that view in a pseudonymous battle of editorials in the Richmond papers with Virginia’s chief justice, his cousin Spencer Roane.  Marshall insisted that, while the reading of “necessary” was to accommodate the needs of the times, the clause had to be tied to the other enumerated powers.  Any such law had to comply with both the letter and the spirit of the Constitution.  It was not enough that Congress could somehow connect a law to the form of one of its other powers.  Pretextual uses of the necessary and proper, or any other clause, would be unconstitutional.

In his almost flawless dissent in Comstock, Justice Thomas takes Justice Breyer to task for abandoning the Constitution’s text and Chief Justice Marshall’s boundaries.  Thomas points out that the Comstock majority makes no attempt to show that the law itself directly carries into effect any enumerated power of Congress.  At best, it does so through an attenuated chain, exactly as Jefferson criticized in his letter to Livingston.  The only objective that the Comstock Court mentions that the law directly advances is “to protect the public from dangers created by the federal criminal justice and prison systems.”  And that is not an enumerated power.

The necessary and proper clause is not an isolated provision.  It is part of the delicate balance of national and state powers the Framers established in the American version of federalism.  That balance is made concrete in several other provisions, beginning with Article I, Section 1, which declares that “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representative.”  That premise, along with the very fact of a limited enumeration of Congressional powers, is evidence that the letter, and certainly, the spirit of the Constitution argue against so expansive an interpretation of the necessary and proper clause that Congress is given an unrestricted power to legislate through a constitutional back door.

The Court’s expansive and unfounded reading of necessary and proper reflects the dominant Washington credo. One has heard over and over from certain partisans in the debate over the current administration’s programs that Congress has the power to do whatever it wants and that the Constitution has no part to play in the debate. Indeed, judging by the distaste, indeed hostility, shown by some Congressmen to the reading of the Constitution in that chamber at the opening of the current session, raising constitutional questions about Congress’ actions may represent some novel mutation of hate speech. Of course, indicting the Constitution (especially its formal restraints on legislative power) as an obstacle to “social advancement” is not new. Then-professor Woodrow Wilson and similarly-inclined academics charged that central tenet of Progressivism a century ago. How little has changed in the progressive world-view.

At the same time, it is undeniable that, over the years, the doctrine of enumerated powers has suffered severe erosion, an erosion that could not have occurred over so long without the tacit complicity of the American people. They have not been alert to Congressional usurpations, as Madison urged. It is inevitable, as people intuit, and as writers from Plato to Machiavelli to Yates and Madison have explained, rulers seek first to maintain and then to expand their power. Over time, there occurs an institutional accretion of power at the expense of personal liberty, as each precedent gives rise to an incremental expansion. Again, the contest over ObamaCare now playing out in the federal courts is the latest (and perhaps final) step in the enfeeblement of the doctrine.

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

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Article 1, Section 8, Clause 2

2:  To borrow Money on the credit of the United States;

Article I, Section 8, clause 2, confers on Congress the power to borrow money on the credit of the United States.  Borrowing is simply a means of raising revenue. One can glimpse the importance and ubiquity of this tool of public finance by the fact that the framers placed it as the second power granted to the new Congress.  Right after the powers to tax and spend. Those powers, along with the coining of money and punishing counterfeiting, constitute the federal revenue powers.

Borrowing on the credit of the United States was of vital concern during the Founding Era.  The difficulty that the U.S. had to finance the Revolutionary War impressed men such as Alexander Hamilton and his mentor in financial matters, Robert Morris.  It was the eventual success of John Adams and others in convincing the Dutch bankers to loosen their purse strings that opened access for Americans to international financial markets and contributed much to independence. Hamilton’s experience is reflected in Federalist 30, where he explains the importance of public credit to finance emergencies such as wars, and the connection between taxes (and, more broadly, responsible fiscal policies) and creditworthiness.

After the war, the economic plight of the United States worsened.  The war debts of the states and the United States posed a long-term threat to the country’s economic health. That condition, many feared, would inevitably turn into a political threat to the republican systems in the states and to the Confederation.  The fiscal and monetary policies of the states exacerbated the situation, as, in the words of James Madison’s in Federalist 10, a “rage for paper money, for an abolition of debts, for an equal division of property [and] for other improper [and] wicked projects” set in.  During the debates on the Constitution, Rhode Island was often (and not always entirely fairly) set up as a paradigm of bad economic policies run amok.  That is what happens when a state declines to show up for the debate, as Rhode Island opted to do.

But the problem was national and systemic, with the country locked in an apparent long-term cycle, or perhaps a spiral, of economic woe.  One problem, in the eyes of many, was the absence of banks.  The British had strongly disabled the formation of banks in the colonies, correctly seeing them as potential threats to British dominance. During the war, the Confederation’s Superintendent of Finance, Robert Morris, at the instigation of Alexander Hamilton, obtained a charter for the Bank of North America, an American prototype private national bank loosely patterned after the Bank of England.  The charter was immediately suspect, since the Articles of Confederation did not allow Congress to charter banks or other corporations.  As a precaution, the Bank eventually also obtained a state charter from Pennsylvania, a step that soon confirmed to Hamilton and other nationalists the folly of state control over public finance. The legislature of Pennsylvania, taking the position that it could, with impunity, take away vested property rights confirmed by a predecessor legislature, revoked the charter in 1785.

Though these constitutional weaknesses and political currents eventually caused the Bank of North America to fail as a national bank, the pattern was set. Indeed, Morris and Hamilton in their arguments to the Confederation Congress developed the constitutional arguments in favor of implied national powers that Hamilton would repeat in his push for the Bank of the United States in 1791, arguments the Supreme Court adopted in its landmark decision in McCulloch v. Maryland in 1819.

In the same vein, the economic and political arguments in favor of (and against) the Bank of North America would resonate in the political debates over the Bank of the United States and its successor until Andrew Jackson’s veto of the re-charter of the Second Bank of the United States in 1832.  Those same arguments would be repeated in the debate over the establishment of the Federal Reserve system and continue today.

While the Federal Reserve remains controversial in many quarters, the original Hamiltonian program probably saved the Republic.  Through the complex system Hamilton advanced as Secretary of the Treasury, the infirmities of the public debts of the United States and the states were eliminated by guaranteeing creditors payment on their previously depreciated securities.  A crucial step to restore confidence was to have the United States assume the war debts of the states.  The debt repayment was financed in part through an excise tax on whiskey that, while unpopular in certain quarters, was generally supported by the public.  The Bank of the United States was the final piece in Hamilton’s mosaic and would serve as a depository for government funds.  The use of those funds as well as the profit from private loans to other (state-chartered) banks and to large commercial borrowers would provide a return on their investment to private investors and to the government.  The latter could use those profits to help repay the war debts and to furnish internal public infrastructure improvements (later reflected in Henry Clay’s “American system”).  More significantly for the stability of public credit and the money supply was that the Bank could control the terms of credit it extended to borrowers. By selecting the interest rates for loans and having the option to demand repayment of loans in specie, it could temper the enthusiasm that state banks otherwise might have to overextend themselves through the issuance of bills of credit (paper bank notes).

As a result, the U.S. almost overnight gained access to the Amsterdam financial markets and, hence, to the world. Foreign capital flowed into the United States to help develop manufactures and commerce and put the United States on the road to a modern economy and prosperity.  Hamilton was not naive.  Despite what some of the agrarian anti-Bank theorists, such as Virginia’s Senator John Taylor of Caroline (a man who considered Jefferson and Madison sell-outs of the republican cause), claimed, neither the Bank nor Hamilton was bent on destroying American liberty.  Hamilton feared a government-controlled bank, but thought that the private control of the bank would keep corrupt political forces at bay.  Similarly, public and private tendencies towards credit bubbles would be constrained by two things.  First, the interests of investors and directors in safety as well as profits would make them sufficiently conservative. Second, he proposed that repayment of long-term public debt be immediately secured through a commitment of designated revenue to pay interest and principal (“sinking fund”).  Hamilton insisted that the Latin root of credit, credere (“to believe”), reflected the true source of credit.  “States, like individuals, who observe their engagements, are respected and trusted: while the reverse is the fate of those, who pursue an opposite conduct.”  While the states and the Confederation had abdicated their responsibilities and the country had suffered accordingly, Hamilton believed that his program lessened those dangers.

In practice, regrettably, Hamilton’s cautious and balanced approach has been cast aside. The only measure today appears to be how much can be borrowed on the increasingly suspect credit of the United States, rated as it is on the perceived ability of Americans to pay and the country’s status as the still safer haven for international funds than are the bonds of other countries.  Debt is rolled over, not retired, as more debt is added.

I happened to come across a book written fewer than forty years ago. The author recounted in horror that the gross national debt (not the annual deficit) topped the stratospheric level of $450 billion.  Even more scandalous to him was the explosion of the national debt from roughly $40 billion in 1940. Those are the kinds of numbers that today sound like unattainable frugality as a measure even of annual deficit, never mind as a measure of gross national debt. Even adjusted for inflation and population growth, the cumulative effect of the borrowing binge reflected in today’s debt is staggering compared to that time not so long ago.

Today’s questionable fiscal and monetary policies are not novel, of course.  The Lincoln administration’s massive borrowing and its manipulation of the currency is one stark early example.  FDR’s unilateral cancellation of gold clauses in public bonds (upheld by the Supreme Court in a stunning exercise of sophistry in Perry v. U.S. in 1935) and his comparatively massive, for that time, expansion of the debt, is another. But even those actions arguably were more defensible than today’s deficit borrowing. There is no massive war; the economic recession is not of the same degree; the borrowing is used to fund entitlements, not infrastructure.  Worse, the deficit is not a matter of a few years, but, by now, of generations.  It is structural. Worst of all, there is a lack of seriousness and urgency on the part of the political branches.  As Hamilton feared, that foundation of sound credit, the “belief” and confidence of creditors, is unlikely to be maintained in the teeth of such profligacy.

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

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Article I, Section 7, Clause 1

1:  All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Article I, Section 7, addresses the process by which legislation is enacted. Before the general process itself is laid out, clause 1 of that section directs that all bills for raising revenue shall originate in the House of Representatives. The Senate is given the power to respond with amendments. Therein, as it turns out, lies a fatal flaw. The House has also frequently asserted that this provision applies as well to appropriations measures. Though not entirely persuasive based on the text, as a practical matter, most appropriations bills originate in the House.

There was virtually no discussion about this clause at the Philadelphia Convention. How could this be? The reason is that the belief that the power of taxation lies with the people was a key component of American republicanism. That article of faith, no, self-evident truth, was the culmination of centuries of evolution of English constitutional doctrine that meshed well with American colonial practice and found expression in such Revolutionary War-era slogans as “no taxation without representation.” The House of Representatives is the only institution of the general government for which the original Constitution made explicit provision of popular election. That fact, and the limited term of office and the frequent recourse to elections for members, made the House the natural repository of republican sentiment in the Framers’ view. There was no need for extensive debate over the (to them) obvious.

The triumph of Parliament over King on the issue of taxation was a process centuries in evolution. The King had revenues from royal properties and various prerogatives, such as assessing import duties. Beyond that, general taxes of persons or wealth were seen as “gifts” from the commons to the crown. Otherwise, taxes would be nothing but exactions against will, backed only by superior force. There would be little difference, then, between such an exaction and one procured by a highwayman. To the English, taxes were dangerous devices by which a person’s freedom was readily destroyed as he was reduced to penury.

But government still needed money, especially during war. The fiction used to get around the obstacles of the “taxes-as-gifts” theory was that the commons, represented in Parliament, could vote to assess themselves and offer such “gifts” to the crown. While this obviously did not please those who did not agree to the tax, it did provide a political tool to limit royal fiscal voraciousness that other monarchies of the time lacked. Once Parliament separated into Commons and Lords, this power fell to the former. By 1407, the Commons had sole power to originate money bills. Attempts by the Lords to have at least an amending or revisory power were rejected. By the end of the Glorious Revolution nearly three centuries later, not only did the House of Commons have plenary power over revenue bills, but it had also won the power to direct the appropriation thereof.

The colonies and, later, the states followed this model. The colonial assemblies saw the enactment of local revenue bills as their prerogative because of their connection to the people through a comparatively broad electoral franchise in many colonies. Pre-Revolutionary War rhetoric, from John Dickinson’s “Letters from a Farmer in Pennsylvania” to the Stamp Act Congress Resolutions echoed this unquestioned dogma of the, frankly rather lightly-taxed, Americans. A similar sentiment prevailed, once the states declared independence. For example, the language of Article I, Section 7, cl. 1, appears almost verbatim in the Massachusetts constitution of 1780 (except for the cosmetic distinction that the state used “money bills” instead of “bills for raising revenue”).

Why, then, are taxes today as high as they are? Historical experience (rather than dogma) provides an insight. In England, as well as in America, the application of constitutional principle resulted in legislatively dominant groups engaging in the entirely understandable practice of having someone other than themselves make these “gifts.” In England, when the House of Commons was controlled by the landed gentry, taxes tended to fall on activities of commerce. When upper and upper-middle class commercial interests came to predominate, they sought to impose consumption taxes (excises) on a broad variety of items used by the (unrepresented) middle and lower economic strata. In the colonies and states, legislatures controlled by middle-class farmers and artisans saw great sense in wealth taxes that targeted the upper-middle and upper classes who were repeatedly being exhorted to pay their fair share based on their greater ability to do so. Thus operates human nature.

Taxation as a form of giving (by the people), not taking (by the government), is an idea that seems to have little currency in certain quarters. It often seems today that those in government, including our representatives, believe that the money is theirs, while the citizenry is at best a collection of tenants at sufferance of their own earnings and wealth. Thus, it comes as little surprise that the technicalities of Article I, Section 7, cl. 1, have not proven to be bulwarks against excessive taxes. The dynamic of the political system for decades has been to extract more and more money from some to fund more and more desires of others. The House still, on occasion, guards its formal pre-eminence in money matters against the Senate and the President, though the current House will soon reveal the extent of its substantive effectiveness in curtailing a budget dominated by gargantuan programs of non-discretionary spending.

As well, there is little in the text to prevent a determined Senate from taking a House bill and “amending” it by deleting all language after “Be It Hereby Enacted” from a House bill. That has happened repeatedly, with Supreme Court approval of the practice over at least the last century. More recent examples of this include a Reagan-era tax law and the 2008 TARP bill. Most infamously, the “reconciliation” process involving ObamaCare began as a Senate gutting of a House revenue bill. The lesson to be remembered yet again is that the carefully drawn balance in the Constitution ultimately depends on the willingness of the citizenry to hold the government to its obligations.

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

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

 Article I, Section 4, Clauses 1-2

1:  The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

2:  The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December,5  unless they shall by Law appoint a different Day.

Article I, Section 4, cl. 1, delegates to the state legislatures the authority to determine the time, place and manner of electing Senators and Representatives. However, with one qualification that has been rendered effectively moot by the 17th Amendment, Congress may supersede state law.

This is one of few clauses in the Constitution that affirmatively require the exercise of authority by the states. It raises interesting questions about the applicability of the traditional “default” view that all powers not affirmatively delegated to Congress or explicitly denied to the states, are reserved to the states or the people, as reflected in the 10th Amendment. Does this explicit provision “create” power for the states to act? Or, does the clause require the states to exercise a power they already have, but that they could ignore in the absence of this command?

Justice Stevens, writing for the majority, and Justice Thomas, writing for four dissenters, debated that issue in a fascinating case, U.S. Term Limits v. Thornton, in 1995. Term Limits addressed the constitutionality of an Arkansas state constitutional amendment that imposed term limits on its Senators and Representatives. Technically, the opinion involved the interpretation of the “qualifications” clause of Article I, Section 2, clause 2, whether term limits constituted an unconstitutional addition to the listed qualifications. But both sides (especially Justice Thomas) explored the applicability of Article I, Section 4, and the question of state power to act when the Constitution is silent.

The majority held that the states have no powers to act in matters that spring exclusively out of the existence of the national government created by the Constitution, unless the Constitution itself delegates that power to the states. Justice Stevens quoted the brilliant early-19th century nationalist Justice Joseph Story that, “No state can say, that it has reserved, what it never possessed.” He also noted that Alexander Hamilton, writing in Federalist 59, had warned of the danger to the Union’s existence if the states had the exclusive power to regulate Congressional elections.

In Stevens’s view, the Constitution created the national government ex nihilo, and the states had reserved powers only in those areas previously within their legislative discretion. Hence, since there was no affirmative grant to states to add qualifications for federal representatives, such power did not exist. Stevens viewed Article I, Section 4, as evidence for this proposition, as it (in his view) delegated authority to the states to act that, in the clause’s absence, would not have existed, while giving Congress ultimate control.

Stevens’s position makes it unclear why the clause is needed at all. Presumably, if the states do not have the inherent power to control the manner of election of the national legislature, but such power rests instead in the federal government, Congress already has ultimate control over the manner of election. Also, if this was delegation to the states, there is no need to declare what the states “must” do, and what Congress “may” do.

Justice Thomas found Stevens’s view to be exactly backwards. Since the states once had all powers, including the power to create whatever Union they wanted, or none at all, they also retained whatever authority they had not surrendered or that was not denied them in regards to the composition of the national government. Since the Constitution does not deny the states the power to add (but not subtract) from the listed qualifications, term limits are constitutional. Moreover, Article I, Section 4, does not detract from the general position that the states have all reserved powers. Thomas saw this provision not as a delegation to the states from the people, created by the Constitution. Rather, this is an imposition on the states of a duty to act, where otherwise none would exist.

Thomas pointed out that, without such a clause, the states could still determine the time, place, and manner of electing members of the national legislature. But they also might refuse to elect members of Congress, to cripple the federal government just as Hamilton warned. This clause, then, imposed a duty on the states (“must”) to exercise that power, subject to the authorization to Congress (“may”) to override the states’ choices. As a corollary, if the clause did not exist, Congress would have no power to act.

Until 1842, Congress left regulation of such elections to the states. States did not adhere to a single standard of electing Representatives (Senators were still elected by state legislatures). Often, at least some Congressmen were elected at-large. In that year, Congress began to require that single-member districts be used. By 1911, federal law mandated that such districts be “composed of a compact and contiguous territory and containing as nearly as practicable an equal number of inhabitants.”

When a later law eliminated that last requirement, substantial malapportionment occurred. Eventually, the Supreme Court waded into this “political thicket,” using another related provision, Article I, Section 2, to strike down apportionment that resulted in districts of disproportionate populations. A nearly absolute “one man-one vote” equality emerged to assure that, as nearly as practicable, “one man’s vote in a congressional election is to be worth as much as another’s.”

Additional questions raised by this clause are whether Congress could regulate primaries that, after all, are an integral part of the election process (based on Supreme Court opinions, today it probably could) or financing of Congressional elections (yes, within the broad contours of the First Amendment). Congress can prescribe the mechanics of voting, as well.

State laws are still important. For example, states still control the requirements for recounts, as a number of candidates in various close races in November, 2010, discovered. As well, states have different rules (and interpretations by state courts) for replacing candidates who drop out shortly before the election. Frank Lautenberg of New Jersey was permitted to replace corruption-plagued Democratic Senator Robert Torricelli on the ballot when the latter withdrew a month before the election. On the other hand, Texas Republicans were not permitted to replace Tom DeLay’s name on the ballot when he withdrew five months before the election.

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

 

Sunday, May 9th, 2010

Federalist Papers 9 and 10, though written by two different authors (Hamilton and Madison, respectively), both address the benefits from large “confederate republics” for internal peace and political stability. Of the two, Federalist 9 is the less momentous, but it raises a number of points that apply as well to other papers that follow.

First, there is the matter of defining terms. Throughout the Federalist, the writers define terms that often are used rather flexibly by others, including “republic” and, here, “Confederate Republic.” Hamilton in Federalist 9 wants to let his readers know precisely what distinctions he is drawing. Hamilton defines a confederate republic as a “convention by which several smaller states agree to become members of a larger one.” While that distinguished such a polity from a monarchy or an aristocratic republic (Rome and Venice), the definition leaves plenty of interpretive room to accommodate different types of confederacies, a discretion Hamilton and the others use to their advantage.

Second, Hamilton responds to the Antifederalist charge of “consolidation,” a frequently-used disparagement at the time that invoked images of a distant, tyrannical, and out-of-touch centralized government and of destruction of state-level authority. (Were they onto something?) Such consolidated government was said to be the opposite of a confederacy. The proposed constitution, Hamilton responds, does not abolish the states, but, rather, makes them a constituent part of the national sovereignty (an issue explored in more detail in future papers) and leaves with them certain exclusive and very important aspects of sovereign power (again, to be examined further in subsequent papers).

Hamilton’s approach accomplishes a couple of important goals and reveals a strategy followed over and over by the writers. For one thing, he ties the new Constitution to the old Articles. That creates the illusion of constancy, important for gaining political acceptance of the new plan. Placing the government under the Constitution (“strong” federalism) on the same continuum as that under the Articles (“weak” federalism) makes the difference between the two just a matter of degree—and an advantageous degree, at that—rather than of kind. This illusion is also important for blurring the revolutionary origins of the Constitution in a process that ignored the constitutional framework under the Articles. For another, emphasizing the confederal nature of the new structure supported the rhetorical coup of the pro-Constitution advocates styling themselves “Federalists,” a much more anodyne and sympathetic term than “Nationalists” or “Consolidationists.” That also, conveniently for the Federalists, deprived the Constitution’s opponents of the moniker most suited to them and left them tagged with the politically unenviable designation of just being “anti” something, and anti “federalism,” at that.

Third, Hamilton helps himself generously to quotations from the Baron de Montesqueiu. The latter’s main work of interest to the Framers, The Spirit of Laws, was cited frequently to support their positions, though not always in the “spirit” in which Montesquieu intended. Unlike the Federalist, Montesquieu saw a rarified interpretation of the English constitutional monarchy as ideal.

More important than the references to Montesqueiu as such is the high level of discourse they represent. Note also Hamilton’s reference to the Lycian confederacy. Discussing political philosophy and comparative constitutional systems is a common device in the Federalist, with frequent citations to other systems, ancient and modern. While these citations and the authors’ interpretations often were editorialized to prove a point (the Federalist was persuasive advocacy, not dispassionate analysis), the casual use of them meant that the authors and the audience had a common frame of reference.

The level of discourse evidenced by the Federalist is remarkable. Granted that the writings may not have targeted  the day laborer, the audience was nevertheless a wide segment of society. After all, these papers were not just notes on an internal debate. They were disseminated to a rather literate American public well beyond the participants in the New York and Virginia ratifying conventions. There was a broad level of understanding of the classic “liberal arts” among the middle and upper classes that made such discourse possible. True, Hamilton attended King’s College (Columbia University), but would the typical graduate of Columbia today be as well-grounded in Western civilization and thought (in contrast to identity group “victims studies”) as Hamilton and his audience? Is one likely to hear such discourse in the halls of Congress or in the media today? If not, does that say anything about our fitness for republican government?

That brings up a theme to be discussed further in connection with Federalist 10, the idea of “republicanism.” Republicanism animated Americans’ self-identity. Start with the name of just the writers of the Federalist, “Publius.” The man of the “people” (not of “states” or “interests”). It comes from Publius Valerius Publicola, a legendary statesman and general of the Roman Republic’s founding. Why write under a pseudonym? There was a legal reason in the history of the English law of publications of criminal libel, but by 1787 it was just a fashion—but one carefully selected. Opponents of the Constitution, too, chose their names with care, and the same person might change names to fit the occasion. Thus, in 1793, in defending President Washington’s Neutrality Proclamation, Hamilton wrote under the pseudonym “Pacificus” (the “peaceful one”). Most of their pseudonyms, from Publius to Cato to Agricola to Brutus to Cincinnatus, were taken from Roman Republican history. The Framers—and Americans generally—were fascinated, nay, obsessed, with the Roman Republic. They saw themselves as heirs to the Roman tradition of classical republican virtue, in their civically-involved citizenry, the militia basis for political participation, the need for inculcation of shared political values, and (for some, e.g., Jefferson and Patrick Henry) the repository of civic virtue in a broad class of yeoman farmers and artisans.

But, as Hamilton shows, the Framers were also keenly aware of the fragility of many republics. Hamilton sees the means of saving the American republic through its size and through the use of a representative system. Madison picks up that theme in Federalist 10.

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

29 Responses to “May 102010 – Federalist No9 – The Union as a Safeguard Against Domestic Faction and Insurrection, for the Indpendent Journal (Hamilton) – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School”

  1. Susan Craig says:

    Thank you Professor Knipprath for your discussion on this paper. Like you I was struck by a portion of the Montesquieu quotation. That being; “As this government is composed of small republics, it enjoys the internal happiness of each; and with respect to its external situation, it is possessed, by means of the association, of all the advantages of large monarchies.”
    The following argument in support of the Constitution leapt out at me. “The proposed Constitution, so far from implying an abolition of the State governments, makes them constituent parts of the national sovereignty, by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of sovereign power. This fully corresponds, in every rational import of the terms, with the idea of a federal government.” It shows me how important it was that the corporate entity known as States be treated as deserving of representation as a whole and separate from individual citizen representation.

  2. Maggie says:

    Fabulous write up and interpretation. I now have a much better understanding of this paper and the mindset within which is was composed.

    @ Susan….the same second quote leapt out at me. It showed me how important it is that the Federal Government not overstep the individual States’ rights. We are, afterall, a Confederate Republic…not a consolidation.

  3. Susan Craig says:

    This paper reinforced my belief that the 17th amendment was a serious mistake and disenfranchised the individual States! This being said a repeal of this amendment would be a good step towards correcting what has gone amiss.

  4. Kay says:

    Prof. Knipprath also helped my understanding of Hamilton’s reasoning. The Founders undertook their task of formulating the Constitution by looking back and looking forward, what worked in the past, what governments had deficiences, what could conceivably work to provide the States, as part of the whole, for “peace and liberty” as opposed to “domestic faction and insurrection.” Our Congress has no sense of the past, except perhaps FDR’s New Deal, which seems to be the best thing since sliced bread, and Congress has just expanded, and expanded, on that with the out-of-control control of the Health Care Reform Bill. I hope those arising to run for public office are educating themselves on the reasoning behind the Constitution, and applying those lessons (which are timeless) to situations facing us today.
    Every candidate should be asked, “When was the last time you read the Constitution? Are you familiar enough with it to judge every piece of legislation by its provisions?” I have already been asking this question of candidates, and unfortunately, the answers are no to nebulous.
    Now I look forward to reading Madison in the next paper and the commentary. Your posted comments enlighten my understanding of every paper with thoughts I never would have drawn from the reading.

  5. Carolyn Attaway says:

    Prof. Knipprath, I thoroughly enjoyed your explanation of Federalist Paper #9. With your write up, I was able to breakdown the paper into several main components, and concentrate on the main theme of each.

    As with Susan and Maggie, I too picked up on Hamilton’s reiteration of the difference between a Confederate Republic consisting of constituent parts and that of a Republic with consolidated states. Earlier on this web-site, while discussing amendments, I mentioned that number 17 needed to be repealed because in its current status, it diminishes the States representation in the U.S. Senate. I believe this paper strengthens the argument that the U.S. Senator should be appointed to the Senate to represent the States best interest and not the voters.

    For example, when the heath care reform bill was being debated in the Senate, many State Governors requested that their U.S. Senators vote against the bill because of the damage the cost would do to their state. Instead, many U.S. Senators were more concerned with party loyalty and re-election bids; they voted against their states best interest. Now, many States are creating legislation to ward off the damage their Senators help create.

    Another section that caught my eye was ‘The Science of Politics’. This is not the first time that I noticed the concentrated effort to stress the importance of power into distinct departments. The statement ‘the introduction of legislative balances and checks; the institution of courts composed of judges holding their offices during good behavior; the representation of the people in the legislature by deputies of their own election: these are wholly new discoveries, or have made their principal progress towards perfection in modern times. They are means, and powerful means, by which the excellences of republican government may be retained and its imperfections lessened or avoided.’

    I find it humorous that Hamilton says that this legislative balance was not known or was imperfectly known to the ancients. If that is the case, I can’t help but wonder if we evolved 360 degrees and are now experiencing a generation that does not realize the importance of balanced powers within the Federal Government. And, if that is why we yet again find ourselves comparing our current troubles to that of Greece.

    One last thing that caught my attention, the word Framer. Until this time, I was concentrating on the word founder, but Prof. Knipprath used the word framer when describing our founding fathers. This word adds a new dimension for me when reading these documents. Now I can see these documents as a framework that is composed of many parts that are to be fitted and joined together to support our founding. A foundation is much stronger when it has a framework to support it.

  6. Richard Heck says:

    I appreciate Prof Knipprath’s words however he needs to write more in laymans terms. I had a hard time reading, understanding and following his article, I cannot imagine what my teenagers are going to say about todays blog.

  7. Margaret Wilkin says:

    Prof. Knipprath also helped my understanding of Hamilton’s reasoning. Liberty can only exist when we have a balance power. The Founders had this amazing foresight of what the future could become. They did this by their understanding of history of other governments and the great philosophers of the day.
    It strike me that we the citizens of the United State have to take a test to drive a car , to become a lawyer, get all sort of degrees, but the people that hold our liberty and that are sworn to uphold the constitution do not have to do anything to prove they understand the constitution. Just a thought .

  8. Susan Craig says:

    I’ll get the apology out of the first. Richard I truly do not mean to pick on you but your comment gives example as to why we need to take education away from the government. Where we presume that the ability to ascertain a meaning by context or dictionary has been lost or is not important.

  9. Andy Sparks says:

    I think it is important to distinguish the context in which Hamilton is writing. He is trying to persuade those that would vote against ratifying the Constitution to support it. Thus, he is emphasizing to the reader that the states will be sovereign in some capacities as defined by the Constitution. However, both he and Madison (at this time) saw the inherent weakness of the federal government compared to the states under the anemic AOC. Madison even proposed in the Convention a ‘negative’ against all state laws for the federal government, and nobody was for a more centralized government than Hamilton, as history bears out after ratification. During the writings of these essays then, one should read them understanding that at this time, all three writers, while assuaging those moderate anti-federalists concerned about the powers of their states, wanted a vastly more energetic national government.

  10. Chuck Plano, Tx says:

    Mabye Constituting America could index all of the guest bloggers blog on each Federalist Paper so they would be avaliable for future reference.

  11. Carolyn Merritt says:

    I agree with Chuck Plano on indexing all of our guest bloggers. I have not blogged in the last several days, but trust me, I’ve been studying and reading all of the blogs by the fantastic guest bloggers. Thank you Prof. Knipprath for clarifying what Hamilton was saying in Federalist #9.

  12. I have read and reread the 17th Admend.and compared it to the original arrangement,I must say I can not see an advantage to repealing the 17th.I understand there is Party pressure but I don’t see this as reason to take the vote from the people.Special interests and Party pressure is a difficulty,but in this day, where incumbents are sweating the results of the awakening people ( long long over due) I see this as perhaps the intentions , the spirit of the passage of it. Please if anyone can show more light revealing my error I am open .

  13. Howdy from Texas. I want to thank you for joining us today and I thank Professor Knippratch for his most insightful essay today!!! Thank you, Professor Knippratch.

    I am in the middle of tornados whirling through

    our ranch so I have to make this brief. I am once again amazed and inspired by the intellectual tenacity of our forefathers. It is my hope, through our foundation, that we may encourage our youth to read, read, read.

    History truly is the key to our future.

    My favorite passage of Federalist No9 is:

    The regular distribution of power into distinct

    departments; the introduction of legislative balances

    and checks; the institution of courts composed of

    judges, holding their offices during good behaviour;

    the representation of the people in the legislature, by

    deputies of their own election; these are either

    wholly new discoveries, or have made their principle

    progress towards perfection in modern times

    “..or have made their principle progress towards perfection in modern times.”

    This line captures my attention. Through out history many empires and republics had been formed but became lost in the mire of war, conquests or tyranny, as mentioned in earlier essays. Now, according to Alexander Hamilton, The United States Constitution, by analyzing the annals of history and recalculating and reinventing the basis of former Republics, offered “progress towards perfection in modern times.”

    Our forefathers, guided by the hand of Divine Providence, etched onto the new sphere of political science a masterpiece, a stroke of genius that would be embraced and cherished by Americans and emulated throughout the world – even today.

    How sad it is that we Americans have such little time to devote to the revolutionary and relevant thesis of our country; that we have forgotten to cherish such a gem. We, as a modern society, have forsaken our great founding principles, as a kitten is forsaken on the side of the road.

    It is Cathy’s and my goal to reach out to the schools across America and by this September 17th have 20 minute DVDs (or downloads) available of the winners of our contest – hip, cool and contemporary – discussing the United States Constitution in all her glory.

    Then when a 7th grader gets in your car, he or she won’t say, “What’s the Constitution?”

    And we, as parents, as adults, as citizens, through our “90 in 90 = 180,” will be re-stimulated, re-educated and fortified to take on whoever wants to challenge, defy or ridicule the validity of the United States Constitution. We will be ready to teach our children, our families, or our friends about the “perfection of modern times.”

    God Bless,

    Janine Turner

    May 102010

  14. Thank you Professor Knipprath for yet another enlightening essay!

    I would like to take a moment to recommend a book that I have found useful, and that you all may too:

    How to Read the Federalist Papers, by Anthony A. Peacock. This book may be purchased at the Heritage Foundation bookstore: http://astore.amazon.com/heritagefoundationbookstore-20/detail/0891951350 It is only about 100 pages, and full of great information!

    In Federalist 1, A General Introduction, Hamilton asserted that a wrong decision on this “important question” of whether or not to ratify the United States Constitution, would “deserve to be considered as the general misfortune of mankind.”

    Federalist 9 reminds us of the grand experiment that America was and is. History was littered with failed Republics. Another failure could forever doom future attempts at governing within the framework of a Republic. Success, however, could inspire similar governments around the world, liberating mankind. The stakes were high, and the founders recognized their place in history.

    This was America’s chance to prove that a Republican form of government could work – that political science had progressed, and refinements had been made including, as Hamilton lists:

    “The regular distribution of power into distinct departments; the introduction of legislative balances and checks; the institution of courts composed of judges holding their offices during good behavior; the representation of the people in the legislature by deputies of their own election,” and ”the ENLARGEMENT of the ORBIT within which such systems are to revolve.”

    I love how Hamilton takes on the arguments of his opposition, and further quotes, paraphrases, and explores Montesquieu to make his points, ending with an explanation of the importance of the State governments within the framework of the proposed Constitution, and their “exclusive and very important portions of sovereign power.”

    Thomas Jefferson called the Federalist, “The best commentary on the principles of government, which ever was written.” Federalist 9 certainly lives up to this high praise.

    Looking forward to Federalist 10!

    Cathy Gillespie

  15. Roger Jett says:

    Lynne Newcomer. Without the 17th Admendment there would not have been the “Miracle in Massachusetts” back in January. It would not have truly been the people of Massachusetts’ seat to fill, but would have belonged to the party machine. With the passage of this admendment we drew closer to Lincoln’s desciption of a “government of, for and by the people.”

  16. Susan Craig says:

    Roger Jett, while the “miracle” would have been a little more unlikely it might not have been necessary. The Senators were never to be direct representatives of the individual citizens. They were to represent the people as a corporate group overall as a State. They were sort of like in a large company where the union is the like the House of representatives. A Senator would be like the different Department heads representing the interests of their respective Departments (each department management selects the person to represent the needs and wants specific to the department as a whole). No longer do the specific States have a representative the looks to the overall of the State specifically because they no longer are selected at the State level while it is warm and fuzzy to have direct say in essence you did have a say by the selection of State Senators and Representatives. Also, if Massachusetts had not changed their law to preempt the possibility of a Republican Governor appointing the replacement for John Kerry should he have won the Presidency the ‘miracle’ would not have happened at all.

  17. Carolyn Attaway says:

    As excited as I was for the election of Scott Brown to the U.S. Senate; it was more for the ability to stop the majority’s agenda than his ideology. I believe this election came about because of over 100 years of misuse of the Senate Body. With the ratification of the 17th Amendment, party loyalty usurped State representation in the U.S. Senate. Senators could be elected over and over again by a majority of voters, thus dominating the seat and the ideals of the voters that elected him.

    The voters are represented in the House of Representatives, if they control the Senate as well, I believe this distorts the voters power, and those in the minority are overruled in every stance. If the Senate only reported directly to the State, the bullying factor from the party and the Administration would be diminished, thus giving the State a voice in the Federal gov’t. The State as a whole is a greater entity and has more strength in dealing with legislation that could hurt it’s citizens than the individual voter.

    I believe a lot of the ills States currently have to deal with are a direct result of Senators putting their party loyalty ahead of the State’s best interest. For example, many Governors are telling their Senators to kill Cap and Trade, but who are their Senators really listening to?

  18. @Roger Jett, I agree with you.I see more opportunity for corruption with appointments.The people are smart enough to bear the consequences,because we have the vote .Thanks for your input.

  19. Chuck Plano, Tx says:

    In regards to the 17th amendment if we returned with the repeal of the 17th the states would regain a large degree of control of the Federal System. It is much easier to change and or control the State Legislatures than it is the Federal Legislature. No longer would there be “money” involved in Senate elections and the beholding of Senators to special interest groups because of their campain contributions. Currently Senators spend on average over $10,000,000.00 dollars to get elected, where do they raise that money? Senators would have to answer to their state legislature for their votes such as the receint health care bill that will ultimately cost the states billions.

  20. Susan Craig says:

    Lynne, yes the opportunity is there. However, now the corruption is not so confined to the State Government level. Prior to the 17th amendment Senators were not vulnerable to the circumstances that led to and have been exacerbated by Campaign Finance Reform! If you didn’t like the Senators your state’s Governor, State Senators and State Representatives selected to represent the State as a whole; they are easier to reach, influence and/or change.

  21. Paul S. Gillespie says:

    Regarding 17th Amend., Lynn and Roger: Party loyalty as an encumbrance to the fidelity of a Senator to his State is a reality. Couple that with the unmitigated influence of campaign contributions, the majority of which does not originated within that State, and the result is a Senator with too many obligations to effectively represent this State, much less the people electing him.

  22. Roger Jett says:

    Valid points have been presented in opposition to the 17th Admendment and I concede that in theory state governments suffered a level of disenfranchisement as a result of it’s ratification. Framers of the Constitution recognized that Article 1, section 3 in granting constituency to the state legislatures instead of the populace in regards to the Senate, greatly increased the likelihood that those same state legislatures would ratify it. Beyond that there were substantial differences of opinion on constituency issues that drifted to the extreme in both directions.
    I believe that neither Article 1, section 3, nor the 17th Admendment perfectly address the numerous difficulties that we have faced with regard to the selection of Senators. Historically, the “realities of human nature” afflicted those serving in state legislatures during the first 125 years when they were the constituents, since factionalism does not discriminate and all are vulnerable. In the beginning, not all states elected their senators the same way. Intimidation and bribery occured at times. I saw noted that between 1866 and 1906 that nine bribery cases were brought before the Senate. On numerous occasions contentions arose that prevented state legislatures from electing new senators. At one point Delaware went four years without a seated U.S. Senator.
    As the point was well made in posts by others, even under the 17th Admendment there are times when vacancies are temporarily filled by state govenors. I ask that each of us compare and contrast the appointment of Roland Burris to the Senate seat for Illinois versus, the special election of Scott Brown to the Massachusetts vacancy. So far, I’ve not seen what I considered to be “unmitigated influence” steming from outside conservative campaign contributors to Senator Brown. He seems fairly focused on listening to and serving his Massachusetts constituency…. the people.

  23. Susan Craig says:

    The purpose of the bicameral legislature was that in one house representation would be by population (3 guesses and the last 2 and 3/4 don’t count) and the other would be where all constituent states would be equal (same offer) that way New York could not bully Wyoming on issues of sectional importance.

  24. Tina Bogani says:

    This is my first blog. FP #9 and #10 are my favorites. I always find myself reading the papers in the context of current events. One of the quotes that struck me was, “…we shall be driven to the alternative either of taking refuge at once in the arms of monarchy, or of splitting ourselves into an infinity of little, jealous, clashing, tumultuous commonwealths, the wretched nurseries of unceasing discord and the miserable objects of universal pity or contempt.” For me, this sounds like a description of “diversity” and how one group should be treated “more fairly” than another (ie, “empathy in judging”).

    I’m sorry to say, even after reading the arguments regarding the representation of the States interests in the Senate, how would it be different than what we have now? Wouldn’t the representatives of the States appointing the Senators be appointed by the People of the State in the first place? Sorry to be dense – can someone explain one more time how it should have worked and how it works now?…

  25. Susan Craig says:

    I’ll try and take a shot at it. Think of the nation as say a large conglomerate company. where there are scads of workers in many different subsidiaries. Say one subsidiary has mainly teamsters, another iron workers, another service, they elect someone to represent them and their concerns to the conglomerate board this would be like the house of representatives. Previously the Senate would have be made up of people who were selected out of the various subsidiaries to represent the overall concerns of the subsidiary say steel framing another subsidiary would say be agricultural services these would be selected by management and workers combined with final say being who the head judges to be best able to represent the subsidiary as a whole. As the Senators are now selected it is a beauty contest voted on by every one and concern no longer is to the corporate body but to the various constituencies.

  26. Roger Jett says:

    Tina Bogani. I may not be of much help in answering your question, but please let me try. It is a very good and appropriate question. Originally, under the Constitution (Article 1, section 3) U.S. Senators were elected by the state legislatures of their respective states. Under that arrangement the state legislature was the Senator’s constituent (the people he answered to and was responsible to represent the best interest of). By the early 1900′s there was sufficient disatisfaction within the nation to change that original arrangement and the legislative branch of the federal government proposed to the states the 17th Admendment for ratification. There were 37 states out of what was then 48 states in total (in 1913) that ratified this admendment into law. Under this new arrangement Senators were now to be elected directly by individual voters within each state and the individual citizens now were the Senator’s new constituency. That’s the quick and easy answer and I think it’s factual . Which arrangement is best involves a number of competing opinions as I think you’ve seen already in the ongoing debate. It sounds wishy washy of me, but I really think there truly are some pretty good arguments on each side.

  27. Kellie says:

    @Roger Jett: Thank you for your explanation, because the 17th Amendment and the story behind it was confusing me. I wonder, could this amendment contribute to the “lifetime” US senators we now have holding office today? Would it have been different if the senators were determined by the state legislatures, which are more diverse. My guess is that the terms of these senators would be shorter and we’d have more of a voice in government.

  28. Roger Jett says:

    Kellie, I’m not sure I would agree that state legislatures are more diverse than the general population. Like it or not our political system is now and has pretty much always been a two party system at both the national level and the state level. Amongst the people there is enormous diversity, but within each party I believe that many of the minorities go pretty much unrepresented at the state legislature level. States have a tendency to lean to one party, even when they have a substantial number of voters who profess to be unafilliated and independent minded. The explanation of why we have so many “lifetime U.S. Senators” probably requires a better understanding of human nature than I currently have. My quess would be that Senators as a rule have been successful at convincing us that we have a voice with them (not been true lately though… has it?).

  29. Are you kidding me? I’m not certain I can put myself behind what you have said. But I will surely be back to find out more soon.

 

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Federalist 10 is a masterpiece of political theory and insight into human psychology. Almost every sentence is worth studying. The central theme, “republicanism,” carries over from its predecessor. At the core of classic republicanism, going back to the ancient Greek and Roman writers, lies “virtue.” Aristotle, Polybius, and Cicero, among others, saw an essential connection between personal (private) virtue and civic (public) virtue. This was, for most Americans, especially those drawn from Calvinist stock, one of those self-evident truths. An interesting statement of the preconditions for virtue is in the great Northwest Ordinance of 1787: “Religion, morality, and knowledge, being necessary to good government and the happiness [in the Greek sense of personal flourishing as a human being] of mankind, schools and the means of education shall forever be encouraged.,” sentiments expressed almost identically by George Washington in his remarkable farewell address.

Writers on ideal republican systems that emphasized virtue were not faced with the task of constituting an actual working government. One of the asserted practical defects of republics and, worse, democracies, has been their political turbulence. Ever since Plato, Western political theory has emphasized the very practical need that government first and foremost ensure political stability. To that end, every political system must have a symbol or ideal around which to rally, something or someone that can bridge the inevitable tensions that arise among competing personal interests. In the English constitution, that symbol was the crown, and American writers in the 1780s worried about what the absence of a king might mean for the long-term stability of the United States. The political and economic turmoil that was endemic in many of the states was less than reassuring. In the United States, that common ideal was the promotion of republican virtue. Today, some would say, it is the Constitution.

The self-interested part of human nature was called the spirit of party or, more commonly, “faction.” Its effect is to undermine republican virtue, which demands sacrifice of the self or the group for the benefit of the whole. Faction is the anti-matter of classic republicanism The history of the early American republic, including Jefferson’s inauguration speech in 1801, almost wholly revolves around coming to terms with the reality of faction in a system that claimed to rest on republican virtue. Today, politicians still often appeal to bi- or non-partisanship as a republican value and libel their critics’ opposition as un-American selfishness. Truth be told, people love partisanship and engage in full-throated defense of their interests, and politicians quickly change their tune when their own oxen are gored.

Madison shrewdly exploits that. He writes that there are two ways to deal with faction: Address its causes or its effects. The first is impossible, as it would necessitate addressing the root cause of faction, fallen human nature. That is totalitarian, in that it requires remaking human nature by equalizing personal talents and possessions. Such a cure would be a destruction of liberty worse than the disease. Moreover, it actually would go against the duty of government to protect the natural inequalities of persons. We may all be created equal in the eyes of God or enjoy metaphysical equality, but we are not in fact all created equal in talent. Human society will always reflect inequalities in talent and differences of opinion, and we need to deal with the realities of human nature, not with pie-in-the-sky proposals to remake humans. Is anyone in D.C. listening?

He proposes instead to deal with the effects of faction. He sets out the danger of democratic systems, such as ancient Athens, where the ability of people to communicate with each other within a homogeneous and geographically confined polity allows permanent majority factions to appear that oppress minorities. Those endangered minorities are political and religious dissenters and the propertied classes. In fact, he singles out taxation as a tool particularly susceptible of abuse against them. Does this sound familiar at all? The opposite danger could also appear, in oligarchies, where a permanent minority faction might oppress the majority. The key, then, is to prevent both of these permanent conditions. Like Plato and Aristotle, among others, Madison sees both oligarchy and democracy as corrupt political forms. Like many of them, he proposes something he calls a “republic.”

The danger of oligarchy is mitigated by the republican principle of the vote. Easy enough. More difficult is the danger of unadulterated democracy. It is worthwhile to re-read his mellifluous and powerfully concise indictment of such a system in the paragraph that begins, “From this view of the subject….” The control, though not cure, for that ill is the element of deliberation introduced through the republican principle of representation. By itself that is still not enough, as small republics suffer from similar defects as democracies. The second crucial element to forestall oppressive permanent majorities is the large size of the American republic with its large and diverse citizenry. That lessens the dangers of popular passions easily communicated and organized to oppress the minority.

Madison cleverly turns the arguments of his opponents against them. Among Antifederalists, it was almost an article of political faith that a government for a large dominion inevitably becomes oppressive. Not content merely to defend the Constitution and the increased power of the national government against charges that the new system threatens liberty, Madison goes on rhetorical offensive against the political instability found in states with which his contemporaries were all too familiar. In a hard-hitting paragraph near the end (“The influence of factious leaders….”), he argues that the central government is less dangerous than states or localities. It is noteworthy what he perceives to be the bad results from too much democracy: “[A] rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project….”

Ingenious as his control of faction is by embracing its reality while blunting its worst manifestations (an issue to which he returns in Federalist 51), is he still right today? Certainly there are big variations in dominant popular political opinions between states or even within states. Though the contrast is becoming paler, there still is greater political homogeneity within particular localities than among Americans as a whole. On the flip side, mass communication and personal mobility, along with a weakening of intermediary institutions, make even our national system much more like the participatory or plebiscitary democracies about which Madison warned. Moreover, the central government, through means to be addressed in future papers, has taken on some of the very characteristics the Antifederalists feared. If that is the case, isn’t local control (and the ability to vote with one’s feet) more conducive to personal liberty than top-down central government from which there is no escape?

Monday, May 10th, 2010

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

20 Responses to “May 11, 2010 – Federalist No. 10 – The Same Subject Continued: The Union as a Safeguard Against Domestic Faction and Insurrection, From the New York Packet (Madison) – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School”

  1. Susan Craig says:

    Wow! In my note taking for this paper, I found it hard not just to copy the whole thing! But the portions that hit the hardest were: “On the other hand, the effect may be inverted. Men of factious tempers, of local prejudices, or of sinister designs, may, by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests, of the people. The question resulting is, whether small or extensive republics are more favorable to the election of proper guardians of the public weal; and it is clearly decided in favor of the latter by two obvious considerations:”

    AND

    “The federal Constitution forms a happy combination in this respect; the great and aggregate interests being referred to the national, the local and particular to the State legislatures.”

  2. Maggie says:

    Excellent interpretation! You have clearly explained the very “soul” of this paper….I really have nothing to add. Thank you again for your time and willingness to help all of us learn more about our founding and the great men who were inspired to give us our Republic. Now let’s hope that it’s not too late to keep it.

  3. Carolyn Attaway says:

    I wish we could have had this Federalist Paper assignment over a weekend; there was so much in it that my thought process was constantly racing from one end of the spectrum to the other. I had to read this paper several times in order to take in all the ideas of information.

    For me, the main theme in this paper was the statement “There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects.”

    Prof. Knipprath goes in great detail explaining the methods of removing factions, and the example he used regarding the differences in human talent spoke to me best.

    For years, I have told my children that everyone should be guaranteed an equal opportunity in life, but no one is guaranteed equal outcome. There are too many factors is life to make equal outcome impossible, no matter what any politician tells you. The factors that direct a person’s life are limitless and cannot be controlled.

    The following statement by Prof. Knipprath hit the nail on head as to why I believe many societies fail: ‘We may all be created equal in the eyes of God or enjoy metaphysical equality, but we are not in fact all created equal in talent. Human society will always reflect inequalities in talent and differences of opinion, and we need to deal with the realities of human nature, not with pie-in-the-sky proposals to remake humans.’

    I have heard it said that if you take all the wealth in the country and evenly distribute it among that country’s citizens, within a generation or two, the majority of the wealth will be back to its original distribution. Why? Because the spirit of the entrepreneur will always rise to the surface to better the situation around him. That spirit is always dissatisfied with the status quo.

    Sadly, many in our government believe in equal outcome, and have convinced a large portion of our country that this process is not only doable but sustainable. Both I believe to be false statements, and a major cause of faction in our country today.

    My humor statement of the day in this paper, “Enlightened statesmen will not always be at the helm”. Oh, if only I had time to debate this!

  4. Carol Frenier says:

    In the 1970s I taught American History in high school. I remember that Federal #10 was viewed as one of the cornerstones of the Federalist papers in the eyes of many historians, but it took me 65 years of living to see why. Quite simply #10 explains in the most realistic terms how people relate to their government: they form factions to get what they want.

    Madison’s definition of factions and its causes, plus his conclusion that removing the causes would essentially destroy liberty, are intriguing. But even more interesting to me is this passage which sums up the whole situation.

    “The diversity in the faculties of men, from which the rights of property originate, is…an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on sentiments and views of respective proprietors ensures a division of the society into different interests and parties.”

    The idea that it is the duty of government to protect the inherently different capacities in people is well worth pondering. Liberals and conservatives would probably react to this very differently. Many liberals might grudgingly concede that inherent differences are a reality, but they might also find it appalling—something for Progressives to alter via government action. Conservatives would more likely find it appalling that liberals would think this reality is something that could be changed, sort of like defying gravity. They would likely support the protection of such differences as the ground upon which people thrive and create.

    Wanting people to be free to use their inherent capacities (and wanting to protect the fruits of their labor) is not the same thing as being indifferent to the suffering of those in need, but it is often interpreted that way. The distinction between these two ideas is important for conservatives to get across to the electorate in November. We are, it seems to me, at a crossroads between reaffirming the protection of liberty as the bedrock of our political tradition or moving toward a nanny state in which differences of ability—and the creativity that results from those differences—are minimized and group identity and grievances are emphasized.

    As we debate these two political courses—often rancorously—we are ourselves caught up in factions. Can we calm the debate and minimize our different views by focusing on the values and principles that we all do agree on? How, for example, is the best way to integrate the ideas of liberty and fairness? Or liberty and compassion? What specific policies would contain good compromises between these competing passions and interests?

  5. Susan Craig says:

    What I am trying to figure out is the inclination of utopians is that they can legislate a change in human nature. It strikes me as absurd as trying to legislate gravity out of existence because I don’t want the pain caused when I fall down.

  6. Roger Jett says:

    In “Federalist Paper 10″, Madison lifts the veil to reveal what fearful impact “the reality of faction” has on any system were liberty receives value. Liberty requires breath, but Madison points out succinctly that the same air that gives us breath fuels the fire of factionalism. Professor Knipprath has been succinct also as he has expounded insightfully upon the issues raised. Madison in this writing, loaded the bases for our team and you sir have drilled it out of the park. I wonder to if “anyone in D.C. is listening?”.

  7. Kay says:

    This Paper #10 was by far the most exciting, probably because I see so much happening today mirrored in Madison’s reasoning. What were the particular factions existing in the time of the Constitution, and which Madison may have had in mind?
    “Liberty is to faction, what air is to fire,” seems to say there will always be issues of passionate viewpoint. Republican virtue would hopefully rise to the top if, a big if, office holders possess virtue. For those whose mantra is equality in every way, didn’t they ever tell their children that sometimes life is not fair? Also, what came to mind after reading: “But the most common and durable source of factions has been the various and unequal distribution of property,” was the parable Christ told about the talents and how some capitalized on their talent, and how one of them did nothing with it. To me, that exemplifies human nature and spirit…how they move and work in their own domains. Governments can try to “equalize” everyone and our possessions, but as in the Soviet’s days, a greyness, dampness will occur over the people.
    Thank you again for the Professor Knipprath’s commentary and all the bloggers, who are adding day by day to my meager understanding!

  8. Maggie says:

    @ Kay….you said it perfectly when you stated “To me, that exemplifies human nature and spirit…how they move and work in their own domains.” It makes me think of “No Child Left Behind”. We educate all of our children in this country, but not all people have the same capacity for learning. We now spend more time trying to prop up those people who, sometimes, just aren’t going to get it while neglecting those who could be our future leaders. The brilliant minds of our youth are being held back to the lowest common denominator in the classroom. Sure, I think that those that are falling behind may benefit from extra help but not to the detriment of the rest of the class. The same goes for the business world. We can’t expect EVERYONE to be a great success…..we don’t all have what it takes. Trying to change that is a waste of time, effort and expenditures.

  9. Ron Meier says:

    This struck me most: “When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. We well know that neither moral nor religious motives can be relied on as an adequate control.”

    This is what happens when one party controls both houses of Congress and the Presidency, which is what we have in 2010. The faction includes the executive and legislative branches, which are controlled by one party. In spite of the opposition of the majority of citizens, the majority faction controlling two branches of government was able to pass the health care law, which was based solely on ideological passion and not on what was best for the public good.

  10. Andy Sparks says:

    Professor Knipprath, thank you for the excellent essay on the Federalist 10 written by the foremost political mind of the founding generation. I find it interesting and appropriate that you reference the passage from the NW Ordinance (which was devised by the government under the Articles by the way) and relate it to George Washington’s farewell address. Realization of the comparison is evident given that James Madison initially wrote and Alexander Hamilton revised Washington’s farewell address. While the two primary authors of the Federalist essays eventually diverged on how government should be run under the Constitution, they are remarkably consistent on the reasons necessitating the Constitution at its inception.

  11. Susan Craig says:

    From readings I’m doing it appears that the Articles weren’t all that ineffective. Where it ran into difficulty was in the unanimous requirement for amendment and raising of revenue. I would like to know the reasoning behind Rhode Island’s obstructionist votes during this period. Each time amendments were brought forward under the Articles of Confederation Rhode Island was the lone state not to ratify and as there was a unanimous requirement they all went down to defeat.

  12. Susan Craig says:

    They also were the lone State to initially not send delegates to the Constitutional Convention.

  13. Quillhill says:

    Is the recent and current path of our federal government proving the Anti-Federalists correct?

  14. As usual, the quality of the comments is so impressive. A “thank you” also for the gracious responses to the blog post.
    Federalist 10 is in the top handful of the papers in insight and importance. It combines political theory with a clear-eyed view of political reality and how institutions work, as historical experience tells those who only have the will to listen.
    I was intrigued by s.th. Susan wrote, a point that probably will come up again in future discussions. Adoption of the Constitution was probably not as essential at that time as Publius makes it out to be. The main drawback of the Articles was, indeed, the difficulty of amendment. There were serious efforts to amend the Articles at least into 1786, and discussions even into 1787. The earlier efforts focused on getting Congress some independent revenue-raising power, at least as to import duties (s.th. that the King had had under his sovereign prerogative for a long time). Some focused on getting some kind of military power to force recalcitrant states to pay their obligations. Later efforts focused on finance, as well, but just as significantly, on a power to regulate foreign and interstate commerce. That would have superseded the Congress’s limited ability under the Articles only to arbitrate commercial disputes upon demand by the states.
    As to “Rogue’s Island,” as it was often known, there are two broad explanations, one high-toned, the other not so much. R.I. had a long democratic (for the time) tradition, with a royal charter that basically remained the state’s constitution into the 1840s (when a mildly violent “civil war” addressed the desire for reform) and protected civil liberties and voting rights. The state distrusted the federal government as an invitation to tyranny, exactly the kind of concern Fed 10 tries to assuage.
    The less honorable interpretation is that R.I. was a strong “debtor” state that had engaged in all kinds of chicanery regarding its public and private debts. Moreover, it was a state that had acquired quite a reputation for sharp commercial dealings. It relied on heavily on fishing and international commerce (including the slave trade), including smuggling. If a strong central government emerged, the state’s inflationary loose money policies, as well as its independent commercial course would be subject to control. The state had all those characteristics that Fed. 10 assigns to the most turbulent of small democratic states (“A rage for paper money, etc.”).
    Its convention voted 34-32 in 1790, after years during which no convention had been permitted to meet because the Constitution had lost in a popular advisory vote. The convention was called because the Bill of Rights had been proposed and because of threatened sanctions from other states (from taxing R.I. products as imports from a foreign country to using military force to quarantine or invade the place). “It’s not the size of the dog in the fight, but the size of the fight in the dog.”

  15. Everybody… thank you for your input. What I got from this reading is that we have been straying from the bed rock principles of human nature for some time now.It has us all caught up in a make believe world to some extent.Examples that come to mind,…the trophy generation children are being indoctrinated with this idea…..teachers not marking papers with red ink because some will “feel” bad, of course this was never the original intention of red ink. Raising children taught me many things ,among them was that each child was different an individual, they all had my love and attention but they all needed guidence in different area .Government needs to be there but mostly needs to get out of the way of the people,we can handle our own lives and resent intrusion , manipulation and trying to make us all something that someone else fancies is always a bad idea.,We are what we are and our founders understood the condition of man quiet well.

  16. Susan Craig says:

    Thank you, Prof. Knipprath (how do you pronounce that?). As a history fan it has been a head scratcher for me. I’ll wager things were quite lively in RI for a while.

  17. It’s been exciting to see so many blog participants today! A big thank you to those who are with us every day, and an enthusiastic welcome to some of our newer folks! Each of you brings a unique and valuable perspective to these pieces. The larger the group we hear from, the more complete and “whole” our understanding becomes!

    I was fascinated by the descriptions of factions in human nature, with faction defined as a group, majority or minority, united by a common passion or interest “adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.” Knowing we can’t control the cause of these factions, the founders set out to control the effects.

    Madison argues that a republic is more effective than a democracy in controlling the effects of factions. I would bet that most citizens today cannot explain the difference between a republic and a democracy. Federalist No. 10 not only explains the difference, but outlines the reasons why a Republic is more effective than a Democracy in representing the broad interests of the community and Nation.

    I loved this sentence: “A rage for paper money, for an abolition of debts, for an equal distribution of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it.”

    Madison saw “an equal distribution of property” as “improper and wicked.” There is a moral case to be made for allowing the spirit of free enterprise to reign in our society. Men possess different abilities, and their “diverse faculties” produce different classes of property owners. A republic balances the interests of these different classes.

    Finally, towards the end of Federalist No. 10, a sentence that made me smile: “In the next place, as each representative will be chosen by a greater number of citizens in the large than in the small republic, it will be more difficult for unworthy candidates to practice with success the vicious arts by which elections are too often carried.” It is interesting to see that over 200 years ago, they still had problems with “dirty tricks,” in campaigns!

    Thank you again to everyone for your insights today!!

    Cathy Gillespie

  18. Brilliant. Brilliant. Brilliant. Mesmerizing. I agree with Professor Knipprath words, “Federalist No. 10 is a masterpiece of political theory and insight into human psychology. Almost every sentence is worth studying.”

    Well said, Professor Knipprath and your essay today is quite brilliant, too, and thought provoking, as well. I thank you for your devotion to “Constituting America” and for all of your esteemed guidance.

    I thank all of you who have blogged with us today and for your stimulating dialogue.

    There is so much wonder, scope, knowledge, perspective and vision in this paper that I do not even know where to begin. I do believe I may have to meditate upon it before I can give it the respect it deserves.

    What am I learning is the difference between a democracy and a republic and through these papers, and this paper in particular, I am getting a clear vision about why we are a republic. Passions, individual perspectives and political factions breathe life into liberty but they must be channeled and curbed. The answers to this challenge lie in our representative form of government.

    To quote James Madison:

    “Liberty is to faction, what air is to fire, an aliment, without which it instantly expires”

    I am sharpening my insights regarding Republican virtues. These virtues deserve to be studied in school and taught in the home. We, as citizens, would be wise to delve into the psyche of the Revolutionary patriots, imbue their sense of virtue and wear their armor of valor. Ah, to breath the air they breathed, to feel the electricity they felt – the enlightment, the courage, the inspiration, the determination.

    Knowledge is power. How fabulous that we are on this journey, this path of understanding – for if we do not know what we have, we will not know what is being taken away. Spread the word. Let’s get as many Americans to join us as we discover the thesis of our great land – to preserve it we must observe it.

    God Bless,

    Janine Turner
    May 11, 2010

  19. Carolyn Merritt says:

    I found #10 to be an exciting read. It was like reading the blueprint for today’s political atmosphere. In his first paragraph where he states “…that the public good is disregarded in the conflicts of rival parties; and that measures are too often divided, not according to the rules of justice, and the rights of the minor party, but by the superior force of an interested and over-bearing party.” This brings to my mind the current steamrolling of health care, bailouts, etc., without regard for the majority of citizens’ voicing their opposition.

  20. Joe Drum says:

    Wow, these are the kind of insights I was hoping to find when I came to this site. Thanks Janine and Cathy and can we hear more from Professor Knipprath?

 

Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School

Monday, May 24th, 2010

E Pluribus Unum. “Out of Many, One.” This aphorism is one of the mottos adopted by the Confederation Congress in 1782 for the Great Seal of the new United States. It not just describes the union of states that was put together through the efforts of the Second Continental Congress. That particular choice also recognizes the relative novelty of the political experiment Americans were undertaking, a novelty memorialized as well in a motto on the Seal’s reverse, Novus Ordo Seclorum, “A New Order for the Ages.”

Federalist No. 19 continues the examination of dangers from weak confederations, a topic that has, in one form or another, been at the core of most of Publius’s preceding efforts. As in the adjoining papers, the theme is the tendency of weak confederations towards internal turmoil, external weakness, and eventual collapse. Here, Madison focuses on the weaknesses of the Holy Roman Empire of the German Nation, an entity intended to re-create an old order for the ages.

The historical evolution of the Germanic realm that Madison describes is the opposite of E Pluribus Unum. “Out of one come many” better represents the unfolding of the usual order of things. That theme is common in creation explanations from religion, philosophy, and science. God created Adam, then Eve from Adam, who together multiplied. For Plato and his later interpreters, reality followed from the singularity of the Form of the Good. In physical science, everything developed from the singularity that is the source of the Big Bang. Under the theory of biological evolution, all life multiplied from some original single-celled organism. Out of one, many.

Likewise, the usual order of things is for systems, once established, to move from flourishing to decay, from order and unity to chaos and multiplicity, from the whole to the parts. This holds true for physical and biological systems, as well as systems of human organization. The body decays. Stars decay. Personal relationships decay. Political orders decay. Personal experience and a basic study of science and history lead us to these common sense conclusions.

Following initial Creation, subsequent creations may form new systems from pre-existing parts. People come together to form new families, communities, and states. At the level of states, these events are infrequent, and, as Madison points out in a later essay, usually the result of one charismatic man’s influence. But any such creation is immediately threatened by the tendencies towards decay and multiplicity.

The protection against decay and chaos is “energy.” To maintain our bodies, we use energy through food. Plants use the sun’s energy to stay alive. In families, it takes energy (physical and emotional) to maintain a well-functioning unit. So it is with political systems. The Germanic realm was created by Charlemagne, a very energetic statesman. But subsequent emperors were more ordinary, and the system itself failed to provide the structures that would allow the government to act with the requisite energy to maintain it. This need for “auxiliary measures,” that is, constitutional structures, to insulate the country from instability caused by variability in the qualities of the governing officials is raised in several essays.

Publius frequently raises the critical quality of energy in government in various writings. To underscore the force of his argument in Federalist 19, Madison’s recitation of the emperor’s formal powers suggests, not too subtly, those under the Articles. The princes, with their own claims to particular sovereignty, produced chaos within the system and intrigue from without. Madison’s warning about the deleterious effects of the decision to devolve power onto “circles” within the Empire was a pointed rebuke to supporters of the Articles who argued that common interests and customs within regions of the United States would produce amicability and desire for concord among neighboring states in ordinary matters, while the Confederation took care of external challenges. The Empire’s structure could not provide the conditions for energy in government when the emperor’s personal ordinariness could not surmount the system’s deficiencies. Neither could the Articles. The Constitution would.

Too little energy in government is a problem; so is too much. The sun’s energy is necessary for living systems. Yet too much energy kills as relentlessly as too little. Much of the debate over the Constitution was not about the need for energy in government, but about the amount. Some opponents of the Constitution thought that the Articles supplied enough. Others agreed with Publius that the Articles were defective, but worried that the Constitution went too far.

Though the particulars of Madison’s historical account might be open to question, his basic conclusions have merit. Still, the Empire lasted a thousand years. Indeed, Antifederalist writers lauded the relative stability and continuity of the systems that Madison derides. For well over three centuries (from the early tenth through the thirteenth), the Empire functioned effectively and energetically. It will take more than another century for the United States to reach that longevity. Meanwhile, we must ask whether the system that has emerged under the Constitution provides the right amount of energy to the central authority—or too much. Or did the Framers get the structure right, but have the people, through a lapse of republican virtue and political participation, permitted politicians and bureaucrats to stretch the structure beyond its original contours and to draw energy from individuals and other constituent parts to the central government?

As the mottos declare, the forming of the United States was a creative act to forge one out of many, first under the Articles and then, “to form a more perfect union,” under the Constitution. This was to be a new order for the ages, one that would seek to avoid the inevitable decay and dissolution through a novel constitutional accommodation. There is, too, a revealing third motto on the Great Seal, “Annuit Coeptis,” translated as “He [God] Approves Our Undertakings,” to complete the description of the project at hand. To avoid the fate of the polities that Madison describes in Federalist 19, we must remain vigilant to keep our constitutional, political, and social order true to the aspirations expressed in all three mottos and in the Constitution.

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

 

Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School

Monday, May 31st, 2010

Alexander Hamilton began his Revolutionary War service as a member of a New York militia unit. He then joined the Continental Army as an artillery officer and became General Washington’s adjutant in 1777. After resigning that post, he persuaded Washington to give him a position as a field commander at the decisive Battle of Yorktown in 1781. From his experience as line officer and staff member, Hamilton was well aware of the capabilities of a trained army and those of the militia. More, in 1783, the Confederation Congress had appointed Hamilton to head a committee to investigate the creation of a standing army.

That background stands out in Federalist No. 25. Supporting Congress’s power to create a standing army, Hamilton rejects the argument that, if there is to be such an institution, it should be under the control of the states. Hamilton also rejects a more moderate position supported by Brutus and other Antifederalists that the national government be permitted to raise and keep troops for frontier duty and to counter threatened attacks, but not to keep armies generally during peacetime. He uses a rather trite “where-do-we-draw-the-line” argument to defend drawing no line at all. Brutus has a ready response: Just specify the purposes for which peacetime troops may be raised and kept, and require a two-thirds vote for Congress to act.

But, rejoins Hamilton, “how easy would it be to fabricate pretences [sic] of approaching danger?” A peacetime army might be kept up, through collaboration between Congress and the President, on the flimsiest of excuses and for however long they judge the danger to exist for their own political ends.” Hence, there should be no restriction on Congress’s power to raise and keep a peacetime army. Because a limited power might be abused, there must be an unlimited power? It is this logical leap that the Antifederalists reject.

Hamilton raises an important broader point here, namely, the use of contrived crises not only to justify military action, but any government action. As Publius notes in several other essays, government thrives on crisis, while individual liberty shrivels. Power flows from the individual to government, from local governments to the central government, and from the legislative and judicial branches to the executive. Such crises fuel an explosion of political energy that produce dangerously excessive unity over individuality, and conformity over liberty, at least temporarily. Government officials gain from such crises, be they real or contrived. “Never let a good crisis go to waste,” is a brilliantly apt aphorism of this phenomenon. Wars and natural disasters are real crises, but one frequently hears crisis terminology used to describe more run-of-the-mill political issues, from “wars” on poverty and drugs to health care and obesity “crises,” to justify government intrusion into individual autonomy. Not long ago, there was even a “hidden” child care crisis, with government efforts made all the more critical because the crisis was so insidious no one recognized it.

Hamilton also anticipates the assertion that the militia suffices for the national defense, an argument he roundly rejects. This was a particularly sensitive ideological issue for Americans of the time. The myth of the citizen-soldier was a powerful republican tale. The ideal soldier was Cincinnatus, the Roman consul-turned-farmer who was subsequently called to be dictator and general during a war, which offices he resigned upon successful completion of the military campaign. He then returned to his farm. Making this republican myth concrete for Americans was that they had their own Cincinnatus in the person of George Washington. Revolutionary War officers formed the Society of the Cincinnati to promote this republican ideal.

The militia embodies the ethos of the citizen-soldier. Hamilton pays due homage, but recognizes the inferiority of the militia to a regular army in sustained military operations. “The American militia, in the course of the late war, have, by their valour on numerous occasions, erected eternal monuments to their fame; but the bravest of them feel and know, that the liberty of their country could not have been established by their efforts alone, however great and valuable they were.” As he noted in Federalist 24, even in peacetime the militia would be unsuited to perform regular soldiering duties such as guarding the frontier. “The militia, in times of profound peace, would not long, if at all, submit to be dragged from their occupations and families, to perform that most disagreeable duty.” Worse, he declares, is the economic inefficiency of compelling the militia to such service, produced by a loss of labor and industrious pursuits and by the expense to the society of frequent rotation of the militia. Since militia service was universal for adult males of a wide age range, such burdens would be even more objectionable than if they fell on a body of citizen volunteers, such as today’s National Guard.

Our current military system depends on a combination of a professional standing army in active service and volunteers in the National Guard and in various reserve units. The system has advantages in training and professionalism, which become more important as the technology in fighting becomes ever more complex. The war-fighting skills of the massed citizen soldiers of the ancient Athenian hoplite formation or of the Roman legion were relatively simple to master. Today’s warfare is infinitely more complex, and continuous campaigns are measured in years, not weeks. Relying on citizen-soldiers, even volunteers in the National Guard, for long commitments produces hardships and economic dislocation, as news reports often point out. This is well worth remembering when politicians blithely call for a state’s national guard to be deployed to guard the frontier against trespassing aliens, or when cuts in the defense budget are proposed while the scope of military commitments abroad continues at a high level.

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

15 Responses to “June 1, 2010Federalist No. 25 – The Same Subject Continued: The Powers Necessary to the Common Defense Further Considered, From the New York Packet (Hamilton) – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School

  1. Susan Craig says:

    On an average there is at least one sentence per paper that brings me up short. This papers contribution is: “If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state.”

  2. Ron Meier says:

    Some interesting stats to consider. About 60 years ago, before the Korean War, our population was about 150 million; today it’s about 310 million. Before the Korean War, we had a standing peacetime Army and Marines of about 15 Divisions; today, our standing Army and Marines, in time of war, is about 13 Divisions. Before the Korean War, we were not at war; today, we’ve been at war for 9 years and yet have not increased the size of our active Divisions. We’ve actually decreased them, in spite of a 100% increase in population. I don’t know what an appropriate size is of a standing military in time of peace, but it seems to me that, during a time of war, there should be some kind of increase. I don’t think our current military size is a threat to our population, given the 100% increase in popluation and the decline in the standing military, but I do think that it is inadequate to perform our multiple missions without having our professional volunteers burn out with family stress that comes from the multiple deployments that are today’s reality.

  3. W. B. Neate says:

    First let me add my thanks to Janine and Cathy for this wonderful forum.

    I would agree with Ron Meier that in the manner our military has been used our smaller force has caused undue hardship on those who serve and their families as well. I would suggest, however, that with our superior military technological capabilities, we have badly mismanaged the use of our forces.

    The scope and techniques of our armed forces activities are dictated by our political leaders. Of the 535 members of the 111th Congress only 121 are veterans. This is less than 25% and this percentage declines with each new congress. The major concerns seem to be political correctness and collateral damage. I don’t think political correctness was even a “buzz phrase” during WWII and had we been overly concerned about collateral damage we would have never dropped the atomic bomb which ended that great war. I am not a war monger but do believe that whatever might we have we should be willing to use if we are to engage in warfare and I am much less concerned about collateral damage in foreign lands than I am about the lives of our young men and women who serve so selflessly. War is hell and “playing nice” is not only too costly but encourages our adversaries.

    Having stated this position I would like to suggest that there exists at least three good reasons for required national service; 1) fresh troops to take some of the burden from our career military personnel, 2) a larger pool of those who have truly served our country from whom we might choose future leaders and 3) a larger number of future Americans with greater sense of national pride that can only be gained via service to country or close relationships with those who serve. As a Viet Nam era veteran I can assure you that I see this deep sense of patriotism diminishing as time goes by.

    Please note that in the preceding paragraph I used the phrase “required national service” as opposed to suggesting a re-institution of the draft. I think all young people should serve but also think they should have the choice of opting out of military service if they choose. We have plenty of other areas where service could be applied.

  4. Susan Craig says:

    @W.B., I agree about the ‘required national service’. If it can be kept out of the political paws, I think things like Vista and Peace Corps should be offered as viable options for national service.

  5. Jimmy Green says:

    It’s natural to accept a professional standing army as better equipped and trained than a militia and the control resting in the Federal Governments hands instead of the states is obvious to me. Hamilton’s experience in the military makes this quite clear. I believe he short changes himself somewhat by not heeding more seriously the concerns about the inherent dangers of our liberties that could result from a standing army. I have not yet read the anti federalist papers but the point mentioned by the Anti federalists according to Prof. Knipprath “that the national government be permitted to raise and keep troops for frontier duty and to counter threatened attacks, but not to keep armies generally during peacetime”. Seems to be a practical approach. This would be somewhat like a trip wire giving us warning of an approaching storm without incurring the high cost and inherent dangers of a continual standing army.

    Under the scenario of the Anti Federalists I wonder if our military would have been used in past conflicts such a Somalia or Bosnia or any U.N. police actions which I doubt the founding fathers would have agreed with. Also something that bothers me were incidents such as the Pennsylvania mutiny in 1783 by a small part of the Continental Army over pay. If I remember this was one of the reasons the Federal Government relocated away from Philadelphia and eventually established the federal district of Washington D.C. Is there any chance of this reoccurring if our economy takes a serious nosedive beyond anything we have experienced so far?

    George Washington in his farewell address stated “Overgrown military establishments are, under any form of government, inauspicious to liberty, and are to be regarded as particularly hostile to republican liberty.”

    Another General who became president, Dwight D. Eisenhower warned in his farewell speech of 1961 “In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex. The potential for the disastrous rise of misplaced power exists and will persist.”

    I grew up as a kid on a Marine Corps base “Camp Lejeune” so I know the professionalism and power of our armed forces. In reading history it seems some of our most prominent members of America and other countries understood the value of a standing army but also gave us stern advice on the inherent dangers. Let’s hope we understand both clearly and use the military in the interest of our country only.

  6. On this Memorial Day season, I think it is appropriate to truly contemplate and think about the soldiers and families who have sacrificed their lives and loved ones, and given their time and dedication to our country.

    Sometimes it is beyond reach to put ourselves in someone else’s shoes and feel, to the most heightened sense, what it would be like to say good-by to our loved ones for perhaps the last time. Do we take the time to feel empathy for the soldier who has to walk away from his family – mother, father, wife, husband, daughter, son – to be potentially killed out in the field – to die away from family – in perhaps some distant land, in enemy territory, on foreign soil? How frightening this would be.

    It is difficult in our daily lives that are hectic with work, pressures, commitments and family responsibilities to really pause to think about the sacrifice our men and women in uniform have made and are making to protect us. Our men and women in uniform were and are the brave, the special, the few and the truly great patriots. Without these soldiers, we, America and Americans, would not be here – plain and simple. The air we breathe, the land we walk, the sky we sketch, the country we call home, is because of the sacrifices of our men and women in uniform.

    No matter which war they called their own, they all fought the enemy, whether near or far, whether boots were on the ground, in the air or on the sea, whether the enemy was present or premeditating. As Alexander Hamilton expressed in Federalist Paper No. 24, “ cases are likely to occur under our governments, as well as under those of other nations, which sometimes render a military force in the time of peace, essential to the security of the society.” Thus, an actual battle or a state of ready alert has served the same purpose – the enemy was to know and knew that he would not prevail against men and women who had the Divine right of liberty in their soul, passion in their hearts and the supreme strength of military readiness.

    Memorial Day is the day to set aside time and sit down with our children and teach them about our wars and war heroes. It is a time to teach them about the Revolutionary War and the reasons why we fought it. They should know about the soldiers who walked barefoot in the snow, leaving the stain of their blood on the ice and about those soldiers who died miserable deaths as POWs in the stifling bowels of the British ships at sea. They should know about heroes such as Paul Revere, Israel Putnam and Nathan Hale who said, “I only regret that I have but one life to lose for my country.”

    We should take a moment during our Memorial Day season, and everyday, to pray for our men and women in uniform. We should teach our children about those who served in the War of 1812 when the British returned, how they burned down the White House and how President James Madison’s wife, Dolly Madison, ran to save the portrait of President George Washington.

    They should know about the Civil War, why we fought it and how thousands of our soldiers died from a new type of bullet that shattered their bones. They should know about the horrors of slavery, how it had permeated the world throughout history and yet how, according to William J. Bennett, “the westerners led the world to end the practice.” They should know about how Americans fought Americans claiming hundreds of thousands of soldier’s lives.

    They should know about World War I and how the soldiers lined up in rows, one after the other, to be shot or stabbed by swords. They should know about World War II and the almost inconceivable bravery of the soldiers who ran onto the beach to endure the battle of Normandy, which claimed thousands of American lives. They should understand what history has to teach us about the mistakes in politics that bred the tyrants who led millions to slaughter. As Publius teaches us, we should not rule with reason but upon the strong foundation of the lessons of history.

    They should know about the Korean War, the Vietnam War and the Communist Regimes that ripped the souls from its people. They should know that our soldiers did not fight or die in vain in Korea or Vietnam because even though the enemy was physically in their field, the enemy’s propaganda permeated and thus threatened our field.

    They should know about the soldiers who stood on alert during the Cold War and their willingness to die. (My father is a West Point Military graduate and served in the Air Force. He was one of the first to fly twice the speed of sound, Mach II, in the 1960’s. He flew the B-58 Hustler and was ready to die on his mission to Russia when his country called him to do so.) The cold war was won by the ready willingness of our brave soldiers in uniform and a country who was militarily prepared.

    A prepared state is a winning state. Alexander Hamilton wrote in Federalist Paper No. 24, “Can any man think it would be wise, to leave such posts in a situation to be at any instant seized by one or the other of two neighboring and formidable powers? To act this part, would be to desert all the usual maxims of prudence and policy.”

    Today, we fight in Iraq and Afghanistan. We fight the insurgencies at our borders most especially in Arizona, Texas and California and we fight an elusive enemy that is creeping into our fields. They are creeping both from abroad with violence and from within with the slow usurpation of our founding principles. Alexander Hamilton warns in Federalist Paper No. 25, “For it is a truth which the experience of all ages has attested, that the people are commonly most in danger, when the means of injuring the rights are in the possession of those of whom they entertained the least suspicion.”

    A strong and honest government based on the Constitution and ruled by the people through the Constitutional Republic will prevail but only if we, as citizens, know about it and only if our children are raised on the fruits of this knowledge. As Alexander Hamilton states in Federalist Paper No. 25, “It also teaches us, in its application to the United States, how little rights of a feeble government are likely to be respected, even by its own constituents.”

    Wars are fought physically and wars are fought mentally. As civil servants we must be alert to the enemy that is amongst us. Alexander Hamilton states in Federalist Paper No. 25, “…every breach of the fundamental laws, though dedicated by necessity, impairs that sacred reverence, which ought to be maintained in the breast of rulers towards the constitution of a country…”

    On this Memorial Day season, we begin our mission with an education of the thesis and basis of our country – what we fight for – the United States Constitution and the wisdom, freedoms, righteousness and structure that it upholds.

    May God bless all of our service men and women past, present and future, who have fought valiantly for these principles.

    God Bless,

    Janine Turner
    June 1, 2010

  7. W.B. Neate – I thank you for your kind words! And I thank all of you great patriots for joining us and for being a part of our blog. I am learning so much from your perspectives!
    God Bless.. Janine

  8. Susan Craig says:

    To Professor Joerg Knipprath: Thank you I look forward to each of you posting with anticipation.

  9. Great comments again, and, as Janine writes, especially fitting on Memorial Day. Susan, that quote is from Fed. 28, I believe, but it is a very important principle that many of the founders had actually lived. It also fits well with the historical purpose behind the Second Amendment, which protects people’s right to own weapons. Although that right extends to personal self-defense, those who adopted it were keenly aware of the right of self-defense against a tyranny by the people organizing themselves into a militia. Kind of a “nuclear option,” if all other means have failed. But that’s a whole other topic.

  10. Greg Zorbach says:

    Upon reading #24 this caught my eye: “…a conduct of this kind has too much the appearance of an intention to mislead the people by alarming their passions, rather than to convince them by arguments addressed to their understandings.” I found myself thinking not of today’s army or navy, but rather the current administration’s response to the immigration, financial and health care ‘crises’. Then today, right on cue, Professor Knipprath’s comments on #25: “Hamilton raises an important broader point here, namely, the use of contrived crises not only to justify military action, but any government action.”
    One of the basic differences between the two political parties, or if that is too confining for your tastes, for those on the left vs. those who are ‘conservative, is that the statists (as Mark Levin accurately calls them) believe that government is the answer to all problems. But the basic inconvenient truth countering that is that our country was founded on the premise of individual liberties and limited government. These days even the most sincere calls for civility and ‘bipartisanship’ can’t bridge that divide.
    That statist mentality is what leads the left to call for all solutions to be ‘comprehensive.’ How else could the government solve a problem if its not a total-control solution.
    I have detected a similar strain in some of these blogs. Don’t get me wrong, this forum and all of its participants are demonstrating exactly the kind of involvement required in these times. However, we cannot realistically expect a complete and immediate return to the kind of government we are reading about in these timeless papers.
    History teaches us a lot. And, it has much to teach us about the time that this great country has been in existence (i.e. since these papers were written). For instance, all of these concerns about standing armies have been proven to be groundless. As one of the Pope Pius’s put it (paraphrasing here) there has been no greater institution for good in the world than the United States Army. General Colin Powell put it this way: “In all the wars America has fought in this century, we have sought no more land in conquest than enough to bury our dead.”
    Re. Jimmy Green: George Washington also said this: “To be prepared for war is one of the most effectual means of preserving peace.”
    More applicable quotes:
    “Let us speak courteously, deal fairly, and keep ourselves armed and ready.” –Theodore Roosevelt
    “Whatever enables us to go to war, secures our peace.” –Thomas Jefferson
    “The urge to save humanity is always a false front for the urge to rule it.” — H.L. Mencken

  11. Juliette’s newest video about our contest: http://www.youtube.com/watch?v=pNnhC3F5nJE

    We are almost one month away from our We The People 9.17 Contest entry deadline of July 4. We need everyone’s help in recruiting kids to enter! We have been told email is the most effective means of recruiting entries and spreading the word, so please feel free to cut and paste this blog and circulate it to your email list.

    Constituting America is seeking high school students to submit entertaining short films, public service announcements, cool songs, and of course, essays by July 4th for our We The People 9.17 Contest!! We have a good number of essays, but not as many short films, public service announcements and songs as we were hoping for, so if you know any high school students who have a talent for making movies, or composing and singing songs, please direct them to: http://www.constitutingamerica.org/downloads.php for more information, rules and to sign up online! Prizes for high schoolers include $2,000, a trip to Philadelphia on September 17 (Constitution Day), and Governor Huckabee has invited the contest winners on his show! The National Constitution Center has offered to show the winning short film in their theatre, and highlight our contest winners in their Constitution Day events.

    Constituting America is seeking Middle School Students to enter cool SONGS and well written essays!! We have a good number of essays, but not as many songs as we were hoping for! Please spread the word to any Middle School kids you know, especially those who like to compose and sing, and direct them to: http://www.constitutingamerica.org/downloads.php for more details, and to sign up online!! Prizes for Middle School kids include gift cards, publicity on the Constituting America website, and other cool surprises!

    And, calling all Elementary Schools kids who like to write poems or draw! We need poems, and art for a holiday greeting card! Again, please see: http://www.constitutingamerica.org/downloads.php for rules and details, and to sign up for the contest online!! Prizes for Elementary School kids include gift cards, publicity on the Constituting America website, and other cool surprises.

    If school is still in session in your area, please contact social studies teachers, art departments, music departments, and theatre/film departments! This is a great project to fill those last days of school when teachers have possibly run out of curriculum or want to give students a chance to earn some extra credit! Church youth groups are another possiblity. And if anyone has ideas or ways to get the word out to the military about this contest, we would love your help in doing so!

    As for Federalist No. 25 – first of all, thank you Professor Knipprath! I echo Susan in saying I always look forward to your posts. And what a beautiful essay Janine wrote on Federalist 24 & 25. I am not sure I have ever read a better tribute to the troops for Memorial Day. Like Greg, Professor Knipprath’s line: “Hamilton raises an important broader point here, namely, the use of contrived crises not only to justify military action, but any government action,” especially resonated with me. It seems that more and more frequently, “crisis,” is used to justify the government creeping into areas of our lives, and the marketplace, where our founding fathers never intended it to go.

    In Federalist 24, Hamilton used a phrase I love – he describes the American people as “so jealous of their liberties.” If we can once again become a people educated about and “jealous of our liberties,” we can begin to roll back some of the government encroachment the founding fathers tried to guard against. We must stay alert and awake!

    A hard task at 2:26 a.m. as I write this post!

    Good night and God Bless,

    Cathy Gillespie

  12. Susan Craig says:

    Oops caught me out; reading ahead the quote is as you say, Professor.

  13. ryan says:

    Professor Knipprath is my absolute favorite guest blogger. Today’s is particularly excellent!!

  14. Susan Craig says:

    I’m with you, Ryan. I especially like that he revisits his blogs and adds clarification and answers questions.

  15. Neb Witt says:

    Sorry for the delay in posting, I wanted to read the essay first. I must say these are really remarkable. They have debates a lot like my grandparents said used to happen when they were kids.

Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School

In various essays, the reader has met Alexander Hamilton, polemicist; in Federalist No. 32, Alexander Hamilton, constitutional lawyer, takes a turn. The topic is whether the power to tax granted to the national government under Article I, Section 8, clause 1, of the Constitution deprives states of the power to tax. In a logical and (mostly) clear progression of premises and conclusions rooted in classic exegesis of the Constitution, Hamilton lays out the argument that the state and national governments have concurrent powers to tax. The matter of “exclusive” and “concurrent” powers is an exploration of the mechanics of our federalism.

From the perspective of government, the power to tax is an essential aspect of sovereignty and self-determination. Our personal experience tells us that dependence on others for funds makes one less fully autonomous and in control of one’s life. Just as an invigoration of Congress’s power to tax was an essential part of the Philadelphia Convention’s mission, retaining the power to tax is essential to state sovereignty, and Hamilton seeks to assuage concerns on that point.

Powers granted to the national government are exclusive only if the Constitution says so (such as the power to make laws for the District of Columbia), if the power is expressly prohibited to the states in some manner (such as the states’ lack of power to tax imports and exports), or if a reservation of the same power to the states would be “absolutely and totally contradictory and repugnant” [italics in original] to the national government’s exercise of the power. All other powers are concurrent, and any conflict between the governments over whether one should tax an activity that the other is already taxing is merely a matter of pragmatic policy. Based on the language of the clause that grants the power to tax to the national government, and the clause in Article I, Section 10, that expressly prohibits the states from taxing imports and exports without Congress’s assent, Hamilton concludes that the power to tax is concurrent, not exclusive.

Today, interpreting powers as concurrent is preferred. That maximizes the residual sovereignty of the states. But, since it does nothing to reduce the powers of the national government, reading a power as concurrent merely multiplies the layers of (often duplicative) government regulations, as, for example, applicants for many types of permits know well.

Hamilton’s argument seems so clear, one wonders why he even made the effort. The answer lies in the sophisticated attacks from the Antifederalists that foretell of political conflict over the practical ability of both the national government and the states to seek tax revenues from the same sources, and over the broader issue of overlapping powers in this novel federal system.

The opponents, led by “Brutus,” see a deeper constitutional problem rooted in an inevitable grab for power by a national government that will seek ever-greater amounts of revenue, to the detriment of the states.“The power to tax is the power to destroy,” as Chief Justice Marshall would write later in McCulloch v. Maryland. Ultimately, the individuals or assets taxed will bear no further assessments. At that point, Brutus predicts, the national government will use the taxing power, the necessary and proper clause, and the supremacy clause to pass laws to gain pre-eminent access to available revenues and to preclude the states from gaining revenues needed to maintain their governments.

While one may question whether such a dire scenario will ever play itself out at a constitutional level through explicit federal legislation to prohibit state taxes (or whether such a law would even be constitutional), it is already happening indirectly. The national government’s hunger for tax revenues is becoming more voracious as ever more aspects of individual lifestyle choices are transferred to national bureaucracies. That leaves the states increasingly hard-pressed to find sources for taxes not yet tapped to the hilt by Congress, though it must be recognized that California politicians, at least, seem to be very creative in finding new turnips from which to squeeze figurative blood.

The national government has long exercised control over the states by distributing to them grants subject to conditions intended to induce state compliance with federal mandates. Those grants are funded through taxes that, if the national government did not levy them, would be available to the states, which could spend the revenues raised without needing to comply with federal mandates. This creeping control over state sovereignty through the taxing and spending powers is one aspect of the lawsuit by various state attorneys-general against the recently-adopted health care reform law.

Hamilton also contrasts the situation of an exclusive federal power where no state participation in the area is constitutionally permitted, with the case where, though the states have concurrent power constitutionally with the national government to legislate, there are “occasional interferences in the policy [italics in original] of any branch of administration [that] would not imply any direct contradiction…of constitutional authority.” A slightly modified version of the latter is the current interpretation of Congress’s expansive power to regulate interstate commerce. That power is concurrent, and the states are able, within broad limits, to regulate interstate commerce through, for example, inspection laws and truck weight regulations.

Congress also can pass laws under its constitutional powers that, under the supremacy clause, override (“preempt”) the states’ otherwise proper concurrent regulations. It was precisely this type of scenario that Brutus raised in his alarm about the effect of the Congress’s taxing power on the states’ power to raise revenue. Hamilton has not directly addressed that argument in Federalist No. 32. He attempts a response in the next essay.

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

Thursday, June 10th, 2010

Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School

After the appearance in the preceding essay of Alexander Hamilton, Esquire, Federalist 33 sees the return of Hamilton, the rhetorical swordsman, slashing at his opponents and parrying their contentions. The target of his invective is the assertion that, though the national government’s power to tax may not be exclusive and can be exercised by the states concurrently with Congress, the necessary and proper clause allows Congress to expand the reach of its substantive powers beyond what is enumerated. Further, the supremacy clause enables Congress to override otherwise valid state laws that are in conflict with such overreaching federal law. In short, Congress might pass laws prohibiting the states to tax in various ways, as a means to protect Congress’s sources of revenue.

The heat of Hamilton’s response is a measure of the significance, then and now, of the bigger question. This is no longer about the power to tax. Rather, this implicates the breadth of the federal government’s power to act and, therefore, the very nature of the federal system and the division of sovereignty created under the Constitution.

This is not the last time that Publius addresses these topics. Madison has his turn in Federalist No. 44. Nor is The Federalist the only forum. The scope of Congress’s discretion to carry into effect its enumerated powers comes up in extended debate as early as the incorporation by the Confederation Congress of Robert Morris’s Bank of North America in 1781. It occurs again with great vigor in the debates in Congress and the Cabinet in 1791 over the chartering of the Bank of the United States. It occurs once more, in the Supreme Court in 1819, in McCulloch v. Maryland. It continues to this day. Not for nothing has this clause been termed the “elastic clause.”

In these debates the course of argument is always the same. As Hamilton points out, the necessary and proper clause merely restates a power that Congress already has by implication. Even if that clause were omitted, Congress could, by the very existence of a grant of substantive power, adopt any law needed to carry out the object of that enumerated power: “What is a power, but the ability or power of doing a thing? What is the ability to do a thing, but the power of employing the means [italics in original] necessary to its execution?…What are the proper means of executing such a power, but necessary and proper laws?” Congress may have only enumerated powers to which it must point whenever it acts. But within those enumerated powers, Congress has plenary authority, including choosing the proper means.

Once a power to adopt any means necessary and proper to an objective is conceded, it becomes necessary to limit the power. Otherwise, an unlimited power to adopt the means needed to achieve delegated and limited ends effectively creates unlimited power to legislate. These “means” can always be connected to some enumerated constitutional objective through linked justifications that, as Jefferson sneered, resemble the rhyme “This Is the House That Jack Built.”

Hamilton avers that only laws that are proper means to the constitutional objective are permitted. What is “proper” must be judged by the nature of the power to which it is directed. Thus, the federal government could not control intestacy laws because those would not be proper to the “national” nature of any federal power under the Constitution. Yet the Supreme Court recently upheld, under that same clause, a federal law that provides for the civil commitment of certain persons deemed dangerous even after they have completed their criminal sentences. While the criminal law under which these people were sentenced had a (bare) connection to the federal commerce power, it is very difficult to understand how the civil commitment law has anything but a very attenuated connection to a federal power. The connection (as Congress makes clear) is to “public safety,” which is not a delegated federal power, but, rather, a state power.

Moreover, the recent health care law imposes an “individual mandate” to purchase health insurance because that is necessary and proper to regulate the interstate health insurance market. The necessary and proper clause has long stretched, one might say, the meaning of the term “elastic.” Hamilton declares that the usual remedy for a violation must be the citizenry’s judgment. Unfortunately, when Congress expands its powers beyond previous bounds by pandering to some item on an interest group’s wish list, there is usually a collective yawn from the electorate. Will reaction to the foregoing examples be different?

Hamilton also analyzes the supremacy clause, which summarizes the fundamental principle that, within its assigned powers, Congress has plenary power that prevails over any conflicting state act. That supremacy principle extends to federal statutes and treaties, as well as to the Constitution itself. By approving the Constitution, the states accepted that its provisions superseded conflicting ones in their constitutions and laws.

Indeed, the supremacy clause principle and the specific listing of Congressional powers was the more benign proposal in Philadelphia. Madison, Hamilton, Washington, and other “large-state” nationalists supported the Virginia Plan that would have given Congress both a broader and more direct veto over state laws and the power to legislate “in all cases to which the Separate States are incompetent; or in which the harmony of the United States may be interrupted by the exercise of individual Legislation.” One shudders to imagine what policies such forthright grants would produce in contemporary Congresses when even the fig leaf of limited and delegated powers is removed. On the other hand, a skeptic might respond that, by constitutional subterfuge abetted by a mostly passive Supreme Court, Congress has already arrogated to itself virtually the same breadth of power.

Hamilton argues that only federal laws that themselves are constitutional can be the supreme law of the land. There is nothing to fear from that clause, as long as Congress does not exceed its powers under the other clauses. As discussed above, in that last point lies the rub.

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

Friday, June 11th, 2010

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Federalist Nos. 37 and 38 depart from Publius’s usual fare of panoramic examination of the weaknesses of historic confederations or dissection of particular objections to the Constitution. Instead, Madison takes up the cause of the project as a whole and of those who remained in Philadelphia to see it through. The thematic thread running through Federalist 37 is “fallibility,” with repeated reminders of human limitations that call for humility and compromise.

His style varies, moving from the evocative tone of the raconteur to the righteous indignation of the remonstrator to the mild defensiveness of the weary apologist. His annoyance with the quantity and variety of criticisms is palpable. He impugns the motives of opponents whom he accuses of a “predetermination to condemn.” Unlike the uncritical enthusiasts who support the project and whose motives may be good or ill, these opponents have no good or even excusably misbegotten motives. To Madison, they act from personal gain or the unwavering arrogance of their  righteous certitude.

Madison fears that the project might, like Gulliver, become tied down by the carping of Lilliputian critics. He knows that delay works against success of any significant and controversial political innovation. He declares, therefore, that he will appeal not to minds already made up, but to the honestly persuadable reader. He pleads with readers to consider the difficulties inherent in an undertaking as momentous as the crafting of a constitution, difficulties that necessarily result in imperfect compromises that expose points for easy attack. It has been said, “A camel is a horse designed by committee.” The Constitution is a camel, a durable and adaptable animal to be sure, but not a sleek and pampered horse planned by “an ingenious theorist…in his closet, or in his imagination.”

Benjamin Franklin, in a speech near the close of the Philadelphia Convention, revealed his doubts about parts of the Constitution. Ever the committed skeptic, he then declared his support “because I expect no better, and because I am not sure, that it is not the best.” Franklin expressed hope “that every member of the Convention who may still have objections to it, would with me, on this occasion doubt a little of his own infallibility” and sign the Constitution. As Madison writes in the next essay, no government is perfect, so that form which is least imperfect is best.

Madison describes the difficulties faced by the Convention in balancing energy in government, stability of laws, and republican liberty, that is, those fundamental characteristics of good government that can be at odds with each. All constitutions share minimum common ground in that they reflect by whom and how governing authority will be exercised. He lays out the delicate balance the Convention had to strike in ordering that authority:

The genius of republican liberty, seems to demand on one side, not only that all power should be derived from the people; but, that those intrusted with it should be kept in dependence on the people, by a short duration of their appointments; and that, even during this short period, the trust should be placed not in a few, but in a number of hands. Stability, on the contrary, requires, that the hands, in which power is lodged, should continue for a length of time the same. A frequent change of men will result from a frequent return of electors; and a frequent change of measures, from a frequent change of men: whilst energy in government requires not only a certain duration of power, but the execution of it by a single hand.

Republicanism. Liberty. Stability. Energy. Ideas that animated the Framers, as reflected in numerous essays by Publius, those were also the objects of the Convention’s plan. That plan had to be practical, driven by experience, not by unbending fidelity to some abstract theory. The vastness of the project and the limitations of human ability complicated the task. It was not merely determining the republican operation of government through elections and representation. It was also the daunting work of designing a new federal structure by balancing the state and national political domains, and of properly calibrating the separation and interaction of the three branches of the national government, all while damping the jealousies among states and regions.

This endeavor is made difficult by the “indistinctness of the object [the absence of fixed rules of nature to show how these institutions should be designed to accomplish the objects of the plan]; imperfection of the organ of perception [the fallibility of the human mind that prevents us from recognizing the perfect path], inadequateness of the vehicle of ideas [the limitations of language in the expression of ideas].” Madison regrets that “no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many, equivocally denoting different ideas.” Interpretation of written text must start with the words. But every writing suffers from the inherent vagueness and imprecision of language. For contracts, laws, and constitutions, which affect groups of persons, the reader’s mere subjective impression will not do, and recourse must be had to various extraneous sources of meaning. Those imperfections may mar the Constitution; but they will also mar any alternative.

Madison is moved to wonder “that so many difficulties should have been surmounted….It is impossible for any man of candour to reflect on this circumstance, without partaking of the astonishment. It is impossible, for the man of pious reflection, not to perceive in it the finger of that Almighty Hand, which has been so frequently and signally extended to our relief in the critical stages of the revolution.” Due recognition of the fallibility of all involved requires of them humility about their own wisdom and at least a spirit of sensible compromise (though not, by that, a lack of firm principles). Those are the marks of statesmen in contrast to mere politicians, and Madison calls on both sides to be statesmen.

Good advice through the ages.

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

Thursday, June 17th, 2010

 

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

While Federalist 37 defends the Philadelphia Convention and the Constitution by recalling the difficulties involved in completing such a complex and novel undertaking, Federalist 38 is a full-throated attack on the Antifederalists. To counter the accusations—at least formally defensible—that the Convention was a revolutionary body that threatened liberty, Madison first reminds his readers that the Convention differed from historical procedures for constitutional innovation. Traditionally, such change was put in the hands of (or seized by) a single law-giver. The danger to liberty posed by such a charismatic leader was avoided by the use of a multitudinous assembly. On the other hand, such an assembly has all the characteristics of faction that he described in the previous essay as making the Convention’s work so difficult.

After this rather mild prologue, Madison sets to work. He likens the United States to an imperiled patient and the Convention to a panel of physicians. The latter agree that the situation is critical, but not so desperate that it cannot, “with proper and timely relief…be made to issue in an improvement of his constitution.” [Here the reader pauses briefly to acknowledge the clever pun.] Then a prescription for relief is made, only to trigger an invasion of nay-sayers who, though they admit the danger, alarm the patient against the cure and prohibit its use. This reminds one of risk-averse bureaucracies that prohibit or stall the use of new drugs for grave conditions because the potential side-effects are not entirely ascertained.

Worse, the objectors cannot agree exactly why the cure is bad. Nor can they agree on an alternative. Madison obviously relishes the opportunity to list various objections, all arranged for maximum ridicule. Though he avoids names, Madison’s examples likely would have brought to readers’ minds various specific opponents, particularly in the New York and Virginia ratifying conventions. Mocking the opponents’ portrayed disunity in order to blunt the dangerous calls for a new convention that were resonating with the public, Madison uses the variety of the objections to declare that the Constitution would likely be immortal if it were put in effect “not until a BETTER, but until ANOTHER should be agreed upon by this new assembly of lawgivers. [Emphasis in original.]”

His role as a champion of the Constitution prevents him from giving rhetorical quarter to his opponents, but they were not the intemperate and intellectually vapid lot Madison portrays through his caricatured compilation. Opposing specifics of the Convention’s product hardly makes one deserving of ridicule. Madison should know. Of 71 proposals he made or strongly and openly supported at the Convention, he lost 40 votes. His desired constitution would have looked remarkably different and more nationalized than what emerged.

Both sides were composed of patriots who ardently desired the success of the republican experiment and the United States. Both sides also had partisans who pursued the more parochial interests of their respective states, as well as their own personal objectives. Usually these conflicting interests operated in the same individuals to varying degrees. The strategic disadvantage the opponents suffered was that they were not a tight-knit cadre, as the writers of The Federalist were. And, of course, they lost. The victor writes the history. But many of them were leading intellectuals, lawyers, politicians, and other educated members of the country’s elite. As Publius infrequently identifies the writers to which he is responding in a particular paper, I should like to take a few lines to mention some of the opposition leaders.

The many effective and famous Antifederalists included Patrick Henry and George Mason of Virginia, Samuel Chase and Luther Martin of Maryland, and Samuel Adams and Elbridge Gerry of Massachusetts. Some opposed the whole project; Henry declared he did not attend the Convention because he “smelt a rat.” Others just wanted a bill of rights. George Mason was one of the most important contributors at the Convention, but, along with Gerry, declined to sign when the Convention refused consideration of a bill of rights. Still others eventually supported the Constitution with varying degrees of enthusiasm.

Many Antifederalists used pseudonyms, in the custom of the day. There was Robert Yates, writing sixteen papers as “Brutus.” Judge Yates was a New York delegate who attended the Philadelphia Convention with Hamilton but left when the delegates moved beyond their charge only to consider revisions to the Articles. A moderate opponent, he was later recruited as a Federalist Party candidate for governor. His influential writings were widely circulated and known for their constructive and analytical criticisms, many of which, unfortunately, have manifested themselves over the years in the federal government that has evolved. Contrary to Madison’s claim, Yates often made suggestions for alternatives. It is curious that Publius never mentions Brutus by name (as he does a few others), although reading the former’s writings, it is clear from the language and the order of argument that he is often responding to the latter’s critiques.

George Clinton, likely author of seven “Letters of Cato,” was the longest-serving governor in American history at 21 years and a two-term U.S. Vice President. He presided over the New York convention and was a moderate opponent of the Constitution who favored adoption conditioned on amendments. His “letters” were widely read, and some historians believe that the effectiveness of his letters impelled the Constitution’s supporters to write The Federalist in response. Cato is specifically mentioned by Publius.

“A Federal Farmer” is traditionally associated with Richard Henry Lee of Virginia, a career politician who was, among many other things, a member of the Confederation Congress. More recent scholars believe that the writer is attorney Melancton Smith, a member of the Confederation Congress and the New York ratifying convention. Hamilton considered the Federal Farmer the most persuasive of the Antifederalists, and refers to him in Federalist 68. The tone in the two pamphlets containing eighteen letters is generally analytical, readable, and moderate. That makes it less likely that Lee, an emotional and powerful orator, is the author. Smith eventually voted for the Constitution, with amendments.

Towards the end of the paper, Madison engages in a dubious tactic of defending the Constitution by declaring the ways that the Confederation has exercised broad powers. That may seem good in theory, but it is unlikely strategically to convince those who are weighing arguments for and against the Constitution. Though the point is to make the Constitution sound tame, one can just as easily draw a different conclusion: If the Confederation Congress is so dynamic, why is there need for change? That said, inducing most of the states to cede their western territorial claims to the United States, taking control of the territory, and passing the Northwest Ordinance as a model of colonial administration for the territory was probably the Confederation’s finest domestic policy success and showed the—ultimately unrealized—potential of the Articles.

Friday, June 18th, 2010

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

 

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

In a lengthy essay, Madison embarks on a series of defenses of Congressional powers that he pursues in more detail through Federalist 46. In Federalist 41, he proposes to divide that task over the course of the following several essays by examining whether any particular power is unnecessary and improper and also whether the entire mass of powers is dangerous to the continued vitality of the states.

He opens with a reminder that, in the end, the Constitution is a practical undertaking, not a theoretical blueprint for an ideal state. He derides the opponents as having “chosen rather to dwell on the inconveniences which must be unavoidably blended with all political advantages; and on the possible abuses which must be incident to every power of trust, of which a beneficial use can be made.” He proceeds with a powerful and very relevant indictment. “[This tactic] may display the subtlety of the writer; it may open a boundless field for rhetoric and declamation; it may inflame the passions of the unthinking, and may confirm the prejudices of the misthinking: but cool and candid people will at once reflect, that the purest of human blessings must have a portion of alloy in them; that the choice must always be made, if not of the lesser evil, at least of the GREATER, not the PERFECT good; and that in every political institution, a power to advance the public happiness, involves a discretion which may be misapplied and abused.”

This passage richly describes a basic phenomenon in politics. Human institutions are designed by imperfect beings to control imperfect beings and administered by imperfect beings. “A government of laws, not of men,” matters, but only to a point. In the end, government is still administered by humans. Perfect systems are imaginary. “Utopia,” which we treat as if derived from the Greek “Eutopia” (a good place), actually is Greek for “not a place.” Utopias do not exist. Rhetorical appeals over potential, yet unrealized, abuses of power are a staple of political discourse. When considering the merits of politicians and political choices, there are always ideological purists who accentuate slight differences rather than bountiful similarities. For them, a political figure who does not perfectly reflect their own vision of the perfect system is suspect, and a political choice that deviates even in minor particulars from their utopian views must be condemned. The perfect, as the saying goes, becomes the enemy of the good.  As he did in earlier efforts, such as in Federalist 37 and 38, Madison urges more temperate and balanced reflection.

After some general observations, he returns to a favorite topic of contention, the keeping of a peacetime army. He proclaims that the matter “has been too far anticipated, in another place, to admit an extensive discussion of them in this place.” Yet, he proceeds to declaim about the topic for half the paper, evidence once again of the frequency and relentlessness of the opponents’ attacks. Those attacks resonated with the public and with many delegates because of the troubling history of standing armies and the tension they reflect with republican ideas.

Two passages stand out. The first is, “Security against foreign danger, is one of the primitive objects of civil society. It is an avowed and essential object of the American union.” There are those who will happily give to the government powers to intrude into the most everyday matters, but act aghast when miliary funding is sought or when a state (reacting to the failure of the federal government to carry out its responsibility in such matters) seeks to protect its people from threats to security coming across the border. This kind of attitude inverts the purpose of government, to provide for personal security for people and allow them to pursue happiness as befits them, not to reduce people to a state of dependency on the government for personal needs.

The second passage is, “It is in vain to oppose constitutional barriers to the impulse of self-preservation. It is worse than in vain: because it plants in the constitution itself necessary usurpations of power, every precedent of which is a germ of unnecessary and multiplied repetitions.” As Publius has written before, necessity knows no bounds in the law. The first rule of nature, for individuals and societies, is self-preservation. There always exists, as countless writers on political theory have declared, a natural right of self-defense. For the proper exercise of that right, there must be a right to arm oneself with reasonable means, a right that applies to individuals as much as nations. Any attempt to restrict that right will fail, as the impulse to self-preservation will prevail at least in those individuals or societies who have not become personally or civilizationally enervated. Indeed, restricting that right will undermine the legitimacy of the constitution itself, as respect for the whole is undermined by repeated violations of an unsustainable provision.

The last portion of the essay discusses a power that has become a conspicuous symbol of the expansion of government, the power to spend. Madison objects that opponents of the Constitution have mislead the people in arguing that the power to “lay taxes…to pay the debts, and provide for the common defence and general welfare of the United States,” gives the Congress the power to legislate for the general welfare. First, he declares correctly that this is a nonsensical reading. “A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents…must be very singularly expressed by the terms ‘to raise money for the general welfare.’” The general welfare language, then, is not a broad grant of power that would make the following enumeration of powers superfluous and contradictory, but a limitation on the power to spend the revenue raised under the taxing power.

As an interesting historical side note, during the Convention, the clause, derived from language in the Articles, was intended to prevent spending of money for “internal improvements” that promoted the welfare of particular states or localities, rather than the general welfare of the United States. But Pennsylvania’s Gouverneur Morris, a strong nationalist who was also the principal draftsman on the Committee of Style that was responsible for the final wording of the text, surreptitiously inserted a semicolon between the power “to lay and collect…excises,” and the limitation of “to pay the debts….” That made the latter seem like an independent power, just as the other powers were separated by semi-colons. Connecticut’s Roger Sherman discovered Morris’s sleight of hand, and the Convention voted to replace the semicolon with a comma.

Second, Madison defines the general welfare as defined by the following specific clauses. He maintained that position in later debates. Hamilton, in contrast, during the debates in the Washington cabinet over the Bank of the United States, claimed that the other enumerated powers of Congress already include within them an implied power to spend for those objectives. Thus, a power to establish post offices includes the power to pay for them. According to Hamilton, the power to spend for the general welfare goes beyond the objectives listed in the Constitution. That is the long-established view of the Supreme Court, as well.

However, that raises the question of what limits exist on the power of Congress to spend. After all, if Congress can spend for objects not within its enumerated powers, it might be able to do indirectly what it cannot do directly. Spend money to control education, for example. Hamilton insisted that the limit was that the spending had to be for the “general” welfare. Yet, unlike the Convention, he also supported spending on subsidies for manufactures and, after some initial misgivings, on internal improvements. He had a much laxer view of “general” welfare.

Today, that leaves Congress in charge of defining “general” welfare. Since many expenditures are earmarked for projects that benefit particular individuals, companies, or communities, the Congress is adept at cloaking rather everything as somehow affecting the general welfare. The spending power has gone far beyond the understanding of the Framers. Bloated spending may prove to be much more of a threat to the national well-being of the country than the standing armies that prompted such concern.

Wednesday, June 23rd, 2010

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

 

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

In Federalist 43, Madison continues his examination of Congress’s enumerated constitutional powers, presenting a miscellany of provisions. Tucked away at the end of this rather lengthy essay, as if Publius half hopes the reader will be too fatigued to notice, is a matter of signal importance, the provision that only nine states’ approval was necessary to establish the Constitution. Publius dismissed this matter as inconsequential in the extended discussion of the legitimacy of the Constitution in Federalist 40.

One problem for the Philadelphia Convention was that it ignored the requirement in the Articles that any amendment (and certainly a wholesale replacement) had to be by unanimous consent of the states. Madison could have justified the nine-state requirement by declaring that the Constitution was a new project entirely severed from the Articles, and that the old system was dissolved when the Framers met in convention. Dissolving the bonds and returning to a “state of nature” had been the basis for the revolutionary founding under the Declaration of Independence. If the states were once again in a state of nature towards each other, unbound from the prior rules, the approval of the nine states, binding them alone, was proper. Every state that wanted to join had to agree, thereby preserving the social contract fiction of individual and unanimous consent.

For solid reasons, Madison does not select that option. For one, to do so would implicitly endorse charges that the Convention was incompetent to act beyond its mandate because the Constitution would be “revolutionary.” For another, in Federalist 40, Publius emphasized the continuity between the Articles and the Constitution. Likewise, Madison in the current essay describes the change as one merely of political form of an existing civil society, not as the foundation of a new commonwealth. All require obeying the Articles’ unanimity provision for constitutional change.

He is left, then, with intellectually more meager rationalizations. One of these is such strained legalism mixed with a splash of late-18th century American constitutional theory about the deficiency of the legislative amendment process under the Articles that he introduces the concoction with a self-conscious “Perhaps.”

The other is one of unvarnished pragmatism, untethered to any constitutional support. He appeals to the “absolute necessity of the case” (Rhode Island, not having sent delegates, was unlikely to approve); the lesson of “our own experience” (Maryland’s four-year long failure to adopt the Articles during the crucial period of the Revolution); “the great principle of self-preservation”; and the “safety and happiness of society…at which all political institutions aim, and to which all such institutions must be sacrificed” (the ends justify the means, just as in Federalist 40). The lesson here is that necessity creates its own legitimacy, and matters of extreme national interest and safety cannot be burdened by constitutional technicalities. In political theory this is the doctrine of “reason of state,” something that executives long have understood.

A few brief points about some other provisions mentioned. Several involve the organic connection between the national and state governments. The sections regarding admission of new states and control over territory belonging to the United States were intended to give express authority to what the Confederation had done in regards to the western territories. They provide a constitutional basis for the acquisition and integration of the new lands that marked the westward expansion across the continent.

The guarantee to each state of a republican form of government assumes that each state will meet the minimum of avoiding monarchy or hereditary aristocracy. Beyond that, republics can take varied forms, and Publius pledges the federal government to avoid interfering with the states’ choices among them. There are many who have argued that the Supreme Court’s reapportionment decisions violate that pledge.

The protection against invasion commits the Union to a fundamental covenantal obligation. Though “invasion” usually suggests military force, it can mean any threat to the stability of the state from outside its borders, particularly an armed threat. Arizona, facing spill-over from the Mexican drug cartel violence, as well as a more general criminality from illegal entrants onto its territory, might plausibly argue that the federal government has breached that covenant and forced the state to act on “the great principle of self-preservation.”

There are provisions related to the capacity of the national government to exist as a practical sovereign, such as the creation of a federal district as the seat of government. It is noteworthy that this section draws a clear distinction between “district” and “states.” Recent statutory proposals to extend voting representation in Congress to the residents of the District of Columbia must founder on that distinction and on the Constitution’s textual requirement that voting and representation (beyond the “municipal” government of the district) rests on residing in a “state.” Perhaps a cession of most of D.C. (excepting the main government district) to Maryland would solve the problem.

Requiring approval of amendments by three-fourths of the states (and introduction by two-thirds of the states or of the members of each house of Congress) represents a confluence of experience and constitutional theory. Early state declarations of independence and constitutions, both of which altered the existing constitutional orders in those states, were commonly done by majority votes of the legislatures. Such practices reflected the constitutional theory inherited from Great Britain that the legislature virtually represented the general will of the commons expressed through the instruments of parliamentary sovereignty.

However, those practices conflicted with the developing American doctrine that constitutional changes were “explicit and authentic acts” of popular sovereignty superior to ordinary laws. Legislation was, after all, merely an act by the people’s agents in a body created under a constitution. In that view, constitutions were not only descriptions of how things were run, but commands of how they must be run. Constitutions were law, created by the ultimate earthly lawmakers, the people. Since direct participation of the entire people was unrealistic, constitutions were to be proposed by special assemblies and approved by popular vote or a supermajority of representatives. The Constitution relies almost entirely on the supermajority vote principle.

The requirements for amendment were also recommended by experience. Legislative majorities are transient and, therefore, likely to lead to considerable instability and flux in constitutional structure. The experience with continuous constitutional agitation in the states during the 1770s and 1780s alarmed the Framers. At least equally alarming, however, was the hurdle presented by the unanimity requirement of the Articles. While its conformance to emerging American constitutional theory was pristine, it was a practical disaster by frustrating needed reformation. The Framers, being nothing if not practical in their project, sought to craft a method for amendment that was neither prone to instability by too frequent amendment nor to paralysis through too-stringent requirements. Debate continues about whether their solution has worked well, given the relative infrequency of formal amendment, or is too constraining and has resulted in giving the unelected courts too great a role in altering constitutional norms.

Friday, June 25th, 2010

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

 

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Federalist 44 completes a series that examines specific grants of power to Congress. Madison identifies two classes of powers. One involves direct limits on the states; the other involves a direct grant to Congress and indirect limits on the states.

Among the first, Madison cites prohibitions—carried over from the Articles—against foreign policy by states, a practice that is inconsistent with even weak notions of union. A more significant innovation is the prohibition on the coinage of money and the use of paper currency (bills of credit). Such activities, he believes, can be carried out responsibly only by the national government, a conviction that, one trusts, would be shaken to its foundation were he alive today. His disquisition on the perils from profligate printing of paper money is illuminating:

“The loss which America has sustained since the peace, from the pestilent effects of paper money on the necessary confidence between man and man; on the necessary confidence in the public councils; on the industry and morals of the people, and on the character of republican government, constitutes an enormous debt against the states ….”

Why he believes that the federal government would be less scandalously addicted to easy money policies than states such as Rhode Island is difficult to fathom, and he undertakes no explanation. Presumably, he places his faith in the contest of interest groups spread throughout the large republic, especially debtors versus creditors, that would limit the likelihood of an extended “rage for paper money” that he condemned in Federalist 10. If so, he misjudges the effect on spending from “log-rolling,” “earmarks,” and patronage fostered by special interest groups and guarded by entrenched Congressional barons. Even if these factions were unlikely to influence the federal government individually, they quickly learned to act in concert, a habit that the pragmatic Framers either were derelict in ignoring or believed might be controlled through constitutional structures.

His explanation for the prohibitions of bills of attainder (legislative decrees of criminal guilt against an individual or group that were routinely used against political opponents in 16th and 17th century England) and of ex post facto laws (laws that retroactively criminalize conduct), as well as of laws that impair the obligation of contracts, is instructive. The last clause arose from experience with the practice by states to cancel public and private debts (at first those owed to British subjects, but later also obligations owed to American creditors) and to meddle otherwise in vested contract rights. A contentious topic at the Convention, Madison justifies the “contracts clause” as needed to combat economic distortions and social disturbance caused by persons seeking government support for their economic schemes: “[The people] very rightly infer, therefore, that some thorough reform is wanting, which will banish speculations on public measures, inspire a general prudence and industry, and give a regular course to the business of society.”

However, if such interferences with vested contracts were to originate in federal law, they would still be invalid. Like bills of attainder and ex post facto laws, they are so fundamentally destructive of security in one’s person and property, Madison writes, that they violate the “first principles of the [Lockean] social compact.” This raises an interesting point, one eventually taken up by the judiciary. If a constitution does not expressly address the legislature’s power to abridge a particular personal right, does that silence permit the legislature to limit that right? Or are there extra-constitutional limits on the discretion of the political majority, beyond those expressly enumerated in that constitution?

If appeal may be made to such extra-constitutional principles in political debate to prevent adoption of a law (which surely may be done), will such an appeal also lie in a judicial proceeding to declare the law unconstitutional once it is adopted (a much more dubious proposition)? If the answer to the last point is affirmative, exactly what principles may be considered, and how would the judge know? “First principles of the social contract” flows easily from the pen of the writer and the lips of the orator, but it is freighted with assumptions and epistemological uncertainties. Judges are chosen for their knowledge of the law, not their “wisdom” as political or moral philosophers, notwithstanding any contrary assertion by the occasional Supreme Court nominee.

Are same-sex marriage, polygamy, suicide, or abortion part of such “first principles”? We can be fairly certain of what Publius would have said. What about the right to pursue a calling or to run a business without a myriad of labor, environmental, and other regulations that dull initiative? The response of the Framers in 1780s republican mode (not in the then just-emerging “classic liberal” mode) might be surprisingly equivocating.

The second class of grants to Congress discussed in Federalist 44 includes the necessary and proper clause and the supremacy clause, topics already addressed by Hamilton in Federalist 33. The examination of the necessary and proper clause is a preview of the famous McCulloch v. Maryland case in 1819, considered by many the Supreme Court opinion with the greatest impact on American politics. The initial issue in McCulloch was Congress’s power to charter the Second Bank of the United States, a controversy that had begun even during the Articles with the debate over Robert Morris’s Bank of North America and persisted through the wrangling in George Washington’s cabinet in 1791 over Hamilton’s proposal for the First Bank of the United States.

Congress has no express power to charter corporations or banks. Echoing Publius, Chief Justice Marshall noted in McCulloch that every power to accomplish an end carries with it, by necessary implication, the power to adopt the means to achieve it. This is a fundamental principle of agency law, and Congress has been delegated certain tasks by the people. It is also an inherent aspect of government. But there is a flaw. The Constitution is not silent about those means.

Luther Martin, Maryland’s wily attorney general in McCulloch, argued instead that the necessary and proper clause provides an express definition of the means to be employed, thereby negating any theory of implied powers. He then claimed that “necessary and proper” requires a showing of indispensability. Marshall disagreed, ruling that “necessary” meant “convenient” or “appropriate.” His interpretation vastly expanded the constitutional discretion for Congressional action. In light of that ruling it is noteworthy that Madison describes the power conferred under that clause as “indispensably necessary” and equates this to those means that are “requisite,” which the dictionary defines as “essential.” One is left to speculate whether the role of the national government might be different today, had Martin’s—and, apparently, Madison’s—more restrictive definition prevailed.

Monday, June 28th, 2010

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

 

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Having examined various powers granted to Congress, Madison in Federalist 45 invites the audience to step back from the particular tiles to gaze at the whole mosaic of the Constitution. But, is he presenting the creation from a proper angle? Or, is the Constitution modern art, where the meaning is created by the viewer? One certainly gets that sense reading some Supreme Court justices’ opinions.

Madison’s conclusion that even the mass of federal powers will not be dangerous to the authority left in the several states is astonishing from our vantage in the light of experience, but understandable from his. He discounts “the supposition, that the operation of the federal government will by degrees prove fatal to the state governments….I am persuaded that the balance is much more likely to be disturbed by the preponderancy of the last than of the first….” He grounds his judgment on four supports, loyalty from the people to the more local government; states as critical constituent parts of the national government but not the reverse; fewer federal bureaucrats than state officials; and the limited number and scope of federal powers.

As to the first, loyalty to local government may indeed be more natural. But such loyalty depends on personal relationships and bonds of community, a concept that has limits. In the 1790 census, the largest city, New York, had 33,000 inhabitants. There were only five cities with more than 10,000 inhabitants. Today, the average Congressional district has nearly 700,000 residents, almost the 1790 population of Virginia, by far the largest state then. Under classic republicanism, the size of political community is a key factor for its success. Aristotle postulated that the citizens “be of such a number that they know each other’s personal qualities and thus can elect their officials and judge their fellows in a court of law sensibly.” Plato fixed the ideal number of citizens at 5040 adult males, or about 30,000 to 50,000 residents if women, children, aliens, and slaves are included. Perhaps not coincidentally, the Constitution fixed the initial size of Congressional districts at 30,000 residents, a number that Federalist 57 asserts would produce about five or six thousand voters.

When today’s average state assembly district in California is larger than all but one of the states in the union in 1790, the notion of community with its interacting social, religious, economic, and political relationships has long since been stretched beyond reality. Basing loyalty to governments, local or national, on distinctions between current orders of representational magnitude is doomed to fail. They lie beyond the easy grasp of human comprehension. Everyone understands the difference between ten dollars and a thousand dollars. But the difference between ten billion and a trillion dollars is the difference between a lot and a lot more, too abstract to be meaningful, though the difference in each set between the larger and the smaller amount is of the same order of magnitude. Distinctions of loyalty to government on that scale become impossible, too, at least in the sense of the civic republicanism that Madison treasures. Loyalty becomes an abstraction, not a republican reality that affects our concrete actions.

Regarding the second point, the states indeed are critical components of the federal structure but not vice versa, just as he describes (excepting the election of Senators). But there is a great difference between the formal structure and the political reality. The Framers failed to anticipate the growth of modern political parties. Those parties have taken on much of the role Madison assigns to the states in influencing the selection of federal officials. Thus, the latter are far more independent of state officials than Madison asserts.

Conversely, it is true that the federal government has no direct formal role in the selection of local officials, though the Supreme Court’s reapportionment decisions and U.S. Department of Justice supervision of local elections under the Voting Rights Act throw even that in doubt. As a matter of policy, however, state and local officials are increasingly dependent on federal officials and agencies. One need only recall, among many examples, the state officials deploying, hat in hand, to Washington for federal money to cover state budget deficits (caused in part by heavy federal taxation that dries up sources for state revenues); the aftermath of Hurricane Katrina where state and local officials waited, figuratively paralyzed, for federal rescue; and California state officials’ generally unsuccessful pleading with members of Congress and federal agencies to divert enough water from protecting the habitat of the Delta Smelt bait fish to allow tens of thousands of farmers to make a living.

Not much need be said about Madison’s point that the far lower number of federal officials than state or local officials would preserve greater influence for the latter. It is particularly unfortunate that he seeks to assure the reader by stating that for every federal tax collector in a district there would be thirty or forty state bureaucrats. Judged by the size of government budgets as a portion of Gross Domestic Product, it is true that the state and local governments take up nearly as much as does the national government. But all have metastasized, with state and local spending in the last century going from 5% to 20% of GDP, and federal outlays increasing by an order of magnitude from 2.5% to 25%. This looks more like the “multitude of New Offices” created, and the “swarms of Officers [sent] to harass our people and eat out their substance,” about which Americans fulminated against King George in the Declaration of Independence.

Madison’s final point about the respective functions of the different governments also has not turned out as envisioned. True, the federal government still attends to the matters he describes, and the states control most ordinary matters that affect people’s lives. The rub is in the ever more intrusive role the federal government is assuming in matters that also affect one’s daily life. The health care reform debate, the news reports about the parlous fiscal state of numerous other social programs, and the parade of additional planned regulations, are too vivid and recent to require recounting in detail.

Madison is too serious a political thinker to be accused of flimflam. Though one has one’s doubts about Hamilton, most Federalists likely believed genuinely that the opponents were unduly alarmist in their visions of an increasingly dominant national government. Regrettably, political history, especially during the last eighty years, has not placed the constitutional mosaic laid out in Federalist 45 in a flattering light.

Tuesday, June 29th, 2010

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

 

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Although the essay’s authorship has been disputed, I am following the broad consensus that Madison wrote it along with the rest of the papers about the organization of the House.

James Madison was a Southern slaveholder. But one might never have surmised that from the curiously detached tone that Publius affects in Federalist 54 in talking about what “our southern brethren [might] observe” and “the reasoning which an advocate for the southern interests might employ,” which argument nevertheless “reconciles me to the scale of representation” adopted. Madison is recorded as having ambivalent feelings about slavery, but, then, most of the Southern elite did, judging by the moral handwringing that runs through many speeches and writings on the issue at the time. One need only look at Jefferson’s thoughts expressed in his Notes on the State of Virginia. The language used on such occasions was so similar that it has led the historian Forrest McDonald to opine that slaveowners developed a nearly rote disclaimer to cleanse the conscience before proceeding to whatever topic was truly at hand.

That said, Madison at least mentions the distasteful “s-word” in Federalist 54, an appellation that the Convention tied itself into euphemistic knots to avoid writing into the Constitution, as he delves into the connections among taxation, representation, and slavery. The first two, taxation and representation, have a long and pronounced relationship in Anglo-American political history and constitutional theory. The movement for independence from the British crown is tied to them through the motto “No taxation without representation” and the events that gave rise to it.

Taxation was seen by Englishmen, as well as Americans, as particularly threatening to individuals’ liberty. By having the potential to reduce people to penury and dependence, and because taking other people’s money for one’s own benefit is an especially strong temptation that mere mortals (even more so, political actors) find difficult to resist, taxation must be done only by consent of those taxed. English constitutional theory stylized this consent into representing a “gift from the commons,” as no one could be forced to share his wealth with others. Note that this applied to direct taxes on one’s person and wealth, not necessarily to indirect levies on voluntary transactions, such as duties on imports or excises on sales of goods. This class-based constitutional theory, made concrete against the King over three centuries, allowed the House of Commons (the only practical repository of popular consent) to bind the commons to pay taxes. The theory reflected the idea that the commoners were represented in the House as a class.

The Americans agreed with the English theory that consent was needed for a constitutional tax. They disagreed with the English theory of virtual representation, which held that the Americans were represented in Parliament as part of the body of commoners. Americans subscribed to a more concrete theory of direct constituent representation, that one was represented by another for whom one had a chance to vote, or at least in whose designated geographic domain one lived.

Recall that “representation” is a crucial aspect of American republicanism. In Federalist 10, Madison exalts representation as the republican principle that ties together the large geographic polity that is the United States without turning it into a tyranny. At the same time, representation, activated by the other republican principle, the vote, protects the political majority from falling victim to an entrenched oligarchy, while also protecting political minorities to some extent from the passing passions of an aroused majority.

But some aspects of republican theory are in tension with slavery—though clearly not in practice through the ages. Tying direct taxes, which reflect wealth and are assessed on the basis of the states’ populations, to representation is easy. Adding slavery to the mix threatens the symbiosis. Slaves are property, that is, wealth. But they are also manifestly human beings.

Direct taxes were imposed on the basis of population, not assessed land values, facts that are not definitively causally related. That could distort the burdens between different states, as Madison recognizes. States with less or poorer land but higher population densities (mostly in the North) would bear a burden proportionately greater than their opposites (mostly in the South). True, most Northern states permitted slavery at the time. The “peculiar institution” (under developing Anglo-American jurisprudence, slavery was not “natural” and could only exist under the peculiar positive enactments of a polity) was much more entrenched and extensive in the South, however.

The political conundrum, as Madison explains, was that the slave interests wanted to include slaves for purposes of representation. Northerners, already fearful that their region would lose relative power to the South due to the greater fecundity of Southerners and the expected greater immigration to the South because of the longer growing season and the claims to larger western territories, objected. At the same time, economic analysis of Southern wealth (of which land was both the most plentiful and the easiest to tax), would likely include the value of slaves (who were taxed as personal property, however).  To exclude slaves, which constituted a great part of the production of Southern wealth, from a wealth-tax census was particularly galling to Northerners. Southerners, on the other hand, argued that the truncated legal rights of slaves nevertheless did not deprive them of their status as “persons” for apportioning representation any more than the truncated rights of children and various others did.

The compromise was to assign to slaves a fractional value for both taxes and representation. That “3/5 clause” preserves the republican connection between representation and taxation, yet it also symbolizes the truncated pyramid of rights that composed the American system of slavery. That solution was not novel. It had been proposed as part of a failed amendment to the Articles of Confederation in 1783 and was part of the Pinckney and Paterson plans presented to the Convention. Nor was that the last time. The Convention was able to reach a compromise that eluded the 1829 Virginia state constitutional convention, at which the elderly Madison tried to push through a 3/5 compromise to settle a simmering conflict over apportionment between the non-slave holding western counties and the slave-holding eastern counties. The eastern planters wanted slaves fully counted, while the western yeomen wanted them excluded. The planters won. That was yet another grievance of powerlessness to be nursed by the residents of what would become West Virginia in 1862, after Virginia seceded from the Union.

Direct taxes have not been used by the federal government. They are difficult to process, as they are assessed against the states, which likely would have to collect them like requisitions under the Articles. Some, such as ancient head taxes, are deemed unfairly regressive. The recent health care law’s individual penalty has the whiff of such a tax and may, therefore, be apportioned unconstitutionally under that law. Federal land taxes are also politically impractical because they penalize population-rich, property-poor states. That said, the targets of wealth taxes are difficult to hide, which is why states and localities still use them.

Federal taxes are usually “indirect” (on conduct through excises and duties on sales or purchases of goods or services) or are income taxes. The last are difficult to assess accurately because income can be hidden. Sales cannot be hidden as easily, and such levies are easy to collect. That is also a feature of the much-discussed value-added tax. On the other hand, the final purchase price can mask the full amount of the VAT, making the tax’s opaqueness a troublesome consequence to the consumer.

The slave holders among the Founders have been accused rather too easily of hypocrisy and posturing for their public attachment to equality, as represented in the Declaration of Independence. The meaning of “equality” is much more complex. We, too, have different understandings of equality. Current conflicts between equality of opportunity versus equality of outcome versus equality of condition are an example. Hypocrisy requires a conscious rejection of principles of right behavior that one espouses. Falling short of one’s professed principles (when one still accepts their rightness) is not hypocrisy. Nor can we accuse the Founders of hypocrisy if their understanding of the principles differed from ours.

Only a few interpretations of equality, not generally so understood by the public at the time, might condemn slavery. Mostly, a general appeal to equality was not inconsistent with maintaining the institution of slavery. The Declaration is clearly rooted in modified Lockeanism. For Locke, basic political equality meant that all were created equal in the sense that none had the natural or divinely-created right of absolute rule over others. The Declaration, with its “consent of the governed” language in immediate proximity to the equality language, bears out this limited understanding of equality. Lack of a natural or divinely-ordained political right to rule does not necessarily foreclose an inequality imposed by peculiar laws (as Madison recognizes in his essay), or in non-political matters.

Equality in the religious society of the Founding meant theological equality before God and metaphysical equality in that all humans were moral actors (as Madison notes regarding slaves) who had to perform moral duties imposed by God and nature. God would judge personal failings in another life. This interpretation, as well, is not inconsistent with slavery on Earth.

Even a view of the term as meaning equality before the law was not incompatible with slavery. As Madison writes in Federalist 54, the slave codes provided a truncated set of legal protections for slaves. These codes became quite exhaustive over time. True, slaves lacked some of the rights of freemen (including, obviously, some crucial ones from our perspective). But so did women, children, indentured servants, criminals, the insane, and others. No one would have considered that this meant those groups were not “created equal” at a sufficiently high level of abstraction.

Americans as a group were not particularly outraged at that time about slavery because it was so common an institution in history and in their society. More immediately, the practice of the institution in the 1780s was comparatively mild, especially in contrast to the abject conditions from which many Americans had emigrated in the not-distant past. Some Americans professed concern. Thomas Jefferson wrote, musing about slavery, “I tremble for my country when I reflect that God is just.” Forrest McDonald responds, “But few of his countrymen trembled with him.”

Monday, July 12th, 2010

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

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Publius continues a lengthy examination of the election and composition of the House of Representatives with a response in Federalist 57 to the charge that the chamber will tend towards oligarchy. He finds this an absurdity in light of the short term of the representatives and the liberal and flexible qualifications for both those who will be elected and those who will elect them. But, in the harsh light of experience, is the objection entirely absurd?

Classic democratic and republican constitutions commonly relied on three formal devices connected with the selection of officials to prevent concentration of power in a few ambitious individuals. Those were selection by lot, short terms of office, and term limits. These mechanisms often were used for the selection of civil executive and administrative officers, the “upper house” of the legislature (such as the Venetian Senate), and—in Athens at least—the juries. The “lower house” of the legislature in each of them was not based on representation but on participation by the whole qualified class of citizens. In the House of Representatives, however, the representative principle applies, which makes that body more analogous to the first class of offices. Our system retains traditional democratic essentials in the selection of juries, intended to produce a cross-section of the community, to prevent corruption through jury tampering, and to keep “professional” jurors from accumulating power.

Classic republicanism saw election as “oligarchic,” unlike the “democratic” method of selection by lot. True, election can produce more qualified officials than the uncertainties from drawing lots. Done well, it elevates the most deserving, a point Madison hammers home in his discussion. If it works right, election can produce a true aristokratia, a government of the best. After all, the Athenians selected their strategoi, the military commanders, by vote and without term limits, because military skills are more specialized and crucial than ordinary bureaucratic talents. But the corrupt form of aristocracy is oligarchy, a government of the few for their gain. In that corruption lies the problem.

The classical distrust of elections was precisely what the Antifederalists feared, namely, that certain individuals would gain disproportionate personal power and begin to see their offices not as a public trust but as a personal estate. Inevitably, this would corrupt even the most virtuous newcomer. Moreover, once the official left office, the influence he gained in office likely would cause the office to be passed on to an ally or hand-picked successor, thereby creating a semi-hereditary sinecure. Looking at many members of Congress today (though not just them), one sees this political dynamic at work relentlessly. Short terms have not prevented the emergence of Congressional “barons,” those who spend decades in Congress tending to their fiefdoms. Nor is that entrenchment necessarily due to some great superiority of personal qualities rather than the inertia of party identification among voters and the gerrymandering of districts to protect party and incumbent advantage.

What forms might such corruption take, other than those already mentioned? Among them, Madison concedes the danger from laws that favor politicians, their friends, and particular interest groups, including ones that expressly exempt politicians from the coverage of those laws. Favoring the particular over the general interest is anathema to republican purists, but also a fact of political life that, as Publius has written frequently, must be channeled, as it cannot be cured.

Madison’s proposed solutions are by turns plausible, idealistic, resigned, and non-responsive. He mentions term limitation, by which he means frequency of election. Though many state offices at the time had annual terms, the two-year term for House members is sufficiently republican.

Second, the lack of property, religion, and status qualifications means that the net will be cast widely for suitable candidates. Could additional limits, other than those qualifications expressly written into the Constitution, be imposed by Congress or the states? As to the first, the Supreme Court emphatically rejected that proposition, concluding in Powell v. McCormack (1969) that the list of qualifications in the Constitution was exclusive. The Court also rejected that argument more circumspectly in regards to the very different issue of state regulation of the number of terms to be served in Congress, in Term Limits v. Thornton (1995). Madison’s reference in Federalist 53 to the lengthy terms some likely would serve, somewhat supports the Court’s conclusion. Third, the voters will have the same qualifications that the states themselves deem sufficiently republican.

Madison’s further reliance on politicians’ gratitude and sense of honor as restraining, at least for a while, the various corrupting tendencies is noble, but naive. Homo politicus is, unfortunately, too often characterized by a lack of these desirable natural sensibilities. The sentiment also conflicts with Publius’s admonition in Federalist 51 that, to limit government to its proper purposes, “ambition must be made to counteract ambition.” Madison is closer to the mark in suggesting that ambition for re-election works as a universal motivator for politicians’ behavior. Public choice theory has demonstrated just that.

The problem is that Madison connects that ambition with doing what benefits the voting majority. Leaving aside whether what is good for the immediate majority is collectively good for the people over the longer term, is Madison correct? Again, public choice theory, based on just watching what politicians do, shows that politicians’ self-interest and the rent-seeking by organized special interests better explains voting behavior than a strong attachment to collective good (if the latter can even be determined coherently) or even to the preferences of a weakly-organized majority. Then there is the matter of how that cozy connection between politicians and organized minorities seeking government favors affects the problem of faction that Publius has addressed repeatedly, if voting cannot cure that problem.

He grants that these internal and external controls may be “insufficient to control the caprice and wickedness of men,” but declares that this is all the mind and hand of man can devise, and that these controls reflect traditional republican practice. In Federalist 51, among others, Publius discussed the importance of constitutional structures as auxiliary precautions against the excesses of government. Here, he hedges those bets. Publius is right that the forms of government are important, but can only do so much to temper corrupt extravagances. The system’s success ultimately depends on the quality of people elected by voters possessed of the judgment and character that balances republican virtue, self-restraint, and vigilant self-interest, and on the subtler bonds of cultural and political tradition. Constitutional forms help, but, ultimately, responsibility lies with the people.

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

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

Thursday, July 15th, 2010

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

 

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Federalist 68 to 72 address the election and structure of the Presidency. Who better to address that than Alexander Hamilton, whose knowledge of executive power combines with an affinity for it that caused much suspicion during his political career?

The first essay is a brief foray into the Electoral College. The matter excited so little passion during the ratification debates that Hamilton barely gets his writing hand limbered up. He allows himself to wax poetic and substitute a couplet edited from Alexander Pope’s Essay on Man for some of the acerbic put-downs of his preceding efforts as Publius. Yet, the frivolity of the approach should not obscure the delicate political balances reflected in the constitutional settlement of the President’s election. The Framers’ had rejected direct popular election (an easy call due to its profound conflict with the idea of the United States as a confederated republic), election by Congress, election by the state legislatures, and election by electors selected by regional electors elected by the people (Hamilton’s multi-layered proposal).

The Framers wanted at once to have an energetic executive and to prevent the emergence of an American Caesar. The first would be accomplished by unity in the office, the latter through, among other things, care in the selection of the person. They also were deeply fearful that some foreign power might place a Manchurian Candidate among the presidential contenders. Hamilton mentions that concern in his defense of the system, a concern also reflected in the requirement that the President be a natural-born citizen. This was no small matter to the Framers. There were various plots and other connections between foreign agents and American politicians and military officers (the Wilkinson/Burr cabal with Spain, for example). Moreover, these kinds of intrigues to place a foreigner in executive office were familiar, both because they were common abroad, and because of the Confederation Congress’s offer in 1786, quickly withdrawn, to the republican-minded Prince Henry of Prussia to become regent of the U.S.

The Framers faced several practical problems. Every efficient electoral system has to provide for a means of nominating and then electing candidates. Moreover, civil disturbances over what is often a politically heated process must be avoided. There must be no taint of corruption. The candidate elected must be qualified.

As to the first, the Electoral College would, in many cases, nominate multiple candidates. Electors would be chosen as the legislatures of the states would direct. Though the practice of popular voting for electors spread, not until South Carolina seceded from the Union in 1860 did appointment by the legislatures end everywhere. Once selected, the electors’ strong loyalties to their respective states likely would cause the electors to select a “favorite son” candidate. To prevent a multiplicity of candidates based on state residency, electors had to cast one of the two votes allotted to each for someone from another state. It was expected that several regional candidates would emerge under that process. There likely would be no single majority electoral vote recipient, at least not after George Washington. The actual election of the President then would devolve to the House of Representatives, fostering the blending and overlapping of powers that Madison extolled in Federalist 51.

That last step corresponded to the Framers’ experience with the election of the British prime minister and cabinet, and with the practice of several states. However, consistent with the state-oriented structure of American federalism, such election in the House had to come through a majority of state delegations, not individual Congressmen. Though modified slightly by the Twelfth Amendment as a result of the deadlock of 1800, this process is still in place.

The Electoral College also was to be the mediating device that would balance the desire for popular input with the realistic concern that a direct popular vote would promote candidates with “talents for low intrigue, and the little arts of popularity.” Hamilton, a skilled in-fighter, possessed very sharp elbows politically, but lacked those particular talents and despised them in others. As John Jay writes in Federalist 64, the Constitution’s system would likely select those most qualified to be President. Augmented by the Constitution’s age requirement for President, the electors are not “liable to be deceived by those brilliant appearances of genius and patriotism, which, like transient meteors, sometimes mislead as well as dazzle.”

Having the voters select a group of electors, rather than the President directly, would also calm the political waters. By making that election something other than a vote about particular candidates, the process would encourage reflection and deliberation by voters about the capacity for reasoned judgment of the electors chosen. The smaller number of wise electors, in turn, would exercise that judgment free from popular passion.

There is also the problem of corruption of the electors. Every polity must address that. The Republic of Venice had a truly byzantine system of election and selection by lot of those whose sole responsibility it would be to elect the Doge (the executive). The sheer number of participants and the unpredictability of the eventual identity of the Venetian electors made vote-buying, influence-peddling, and intimidation impractical. In Federalist 68, as well, Hamilton assures the reader that, in the American system, corruption and the influence of faction are avoided by the temporary and limited duty of the electors, the disqualification of federal office holders to serve, the large number of electors, and the fact that they meet in separate states at the same time. Presumably, those protections fall away when the House elects the President. But Congressmen have to worry about re-election and, thus, want to avoid corrupt bargains that are odious to the voters.

Though the constitutional shell remains, much of the system operates differently than the Framers hoped. The reason is the evolution of the modern programmatic party, that bane of good republicans, which has replaced state loyalties with party loyalties. The Framers thought they had dealt adequately with the influence of factions in their finely-tuned system. As modern party government was just emerging in Britain and—in contrast to temporary and shifting political factions—unknown in the states, the Framers designed the election process unprepared for such parties.

Today, the nominating function is performed by political parties, while election is, in practice, by the voters. Elections by the House are still possible, if there is a strong regional third-party candidate. But the dominance of the two parties (which are, in part, coalitions of factions) suppresses competition, and the last time there was a reasonable possibility of electoral deadlock was in 1968, when Alabama Governor George C. Wallace took 46 electoral votes. Mere independent national candidacies, such as that of Ross Perot in 1992, have roughly similar levels of support in all states and are unlikely to siphon electoral votes and block the usual process.

Parties have had a beneficial effect in that they have prevented repetitions of the debacles of 1800 (when, due to the tie vote between Jefferson and Burr, it took the House 36 ballots and probable political intervention by Hamilton on the former’s behalf to resolve the election) and of 1824 (when the election dominated by just the regional candidacies anticipated by the Framers was thrown into the House and extensive bargaining precipitated charges of corruption that stymied the J. Q. Adams presidency). Had parties not emerged to provide necessary lubrication, the creaky constitutional machinery well might have had to be reformed. Though they have smoothed the process, parties arguably also have promoted the very evils (other than foreign intrigue) that Publius assured his readers were avoided under the electoral system designed by the Framers.

At the same time, the emergence of modern political parties has not made the Electoral College obsolete, as it still promotes important values. It reinforces the founding principle that the U.S. is a confederated republic and not a consolidated national government, as analyzed so persuasively by Madison in Federalist 39. Despite the occasional misfire, as in the election of 2000, the Electoral College often gives the narrow victor in the popular vote a mandate through a significant electoral college majority. The need to find a lot of electoral votes to overturn such a result reduces the likelihood of persistent challenges. Elections such as 1948, 1960, 1968, and 1992 come to mind. Proposals to change or abolish the Electoral College have appeared frequently since the Constitution’s adoption and are of predictable types. But they always lose steam, as there has been no showing that they will serve republican values better than the current system. Indeed, efforts to change the system have declined in the last half century, even after the contested election of 2000, a testimony to the enduring legitimacy of the Electoral College.

Friday, July 30th, 2010

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

 

The Powers of the President, From the New York Packet (Hamilton) – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School

In Federalist 69, Hamilton responds to the charge by the Constitution’s opponents that the president is an American king. He compares the powers of the “president of confederated America” (interesting phrasing) under the Constitution with those of the king of Great Britain and the governor of New York. He chooses the latter for several reasons. First, the essays of Publius are written during the pendency of the New York and Virginia ratifying conventions and were obviously intended in the first instance to influence those closely-fought skirmishes.

Second, Hamilton was deeply involved in state politics as a member of the downstate faction that favored both the Constitution and, later, the Federalist Party. Though it is hard to believe today, New York City politically was, in many ways, a Tory town. It was a hotbed of Loyalist sentiment during the Revolutionary War, so much so that the British made it their headquarters. Hamilton was intimately familiar with the operation of his state’s government and, given the emerging significance of the city and state, would  find New York’s system more important than others’.

Third, the governor of New York was a rather strong chief executive compared to the state governors at the time. Comparing the president’s powers favorably to those of a republican American state executive would resonate particularly well with the persuadable delegates by avoiding charges that comparing the prerogatives of the president to those of the British monarch was irrelevant to the cause, as no American king was to be crowned.

But there is one more reason. The governor of New York, George Clinton, was the presiding officer at the convention and a staunch Antifederalist. He was also a member of the upstate Albany faction politically opposed to Hamilton. Clinton is the likely author of potent attacks on the Constitution in  “Letters of Cato.” Many historians believe that it was the publication of some of those letters that induced the Constitution’s supporters to organize the effort that became The Federalist. The executive was one of Cato’s particular concerns. In an essay published four months before Federalist 69, Cato labeled the president the “generalissimo of the nation,” assailed the scope of the president’s powers, compared those powers alarmingly with those of the king of Great Britain (especially the war power), and warned, “You must, however, my countrymen, beware that the advocates of this new system do not deceive you by a fallacious resemblance between it and your own state government [New York]….If you examine, you…will be convinced that this government is no more like a true picture of your own than an Angel of Darkness resembles an Angel of Light.” Hamilton had no choice but to respond.

The result is a brief comparative overview, the particulars of which do not matter much today, as the king’s prerogatives, already circumscribed then, are virtually non-existent now. The essay does provide an introduction to various powers of the president, most of which are in Article II of the Constitution. Hamilton will delve into greater detail of various of them over the course of Federalist 73 to 77.

The Framers saw Congress as the most dangerous branch, and the one most likely to encroach on the domain of the others. While there were dangers in an independent and powerful executive, the lessons from the Revolutionary War and life under the Articles showed the need for just such an officer. The turbulence of state governments with weak and dependent executives only proved the point. Most agreed that a strong, independent executive was needed. But, how strong?
What is significant for us is the dog that does not bark, the constitutional clauses that are not mentioned by Publius. Not long after the Constitution was approved, Hamilton used the occasion of Washington’s Neutrality Proclamation in 1793 to advance a broad theory of implied executive powers. His position, vigorously challenged by Madison during the Pacificus-Helvidius debates, was that the president has all powers that are not denied to him under the Constitution either expressly or by unambiguous grant to another branch. That approach has been used by subsequent presidents to fuel the expansion of executive power.

Article II is rather short, and the president’s powers few and specific. Beyond that, the boundaries are vague. It was broadly understood that George Washington would be the first president. The general recognition of his propriety and incorruptibility meant that he would have discretion to define the boundaries of the office. Indeed, Washington was expected to do so, and he was well aware of that responsibility. In addition to the oath of office, there are three clauses whose text suggests room for discretion. Those three, the executive power clause, the commander-in-chief clause, and the clause that the president “shall take Care that the Laws be faithfully executed,” have proved to be generous reservoirs of necessary implied executive powers.

Publius spends little time on the commander-in-chief clause, and essentially none on the others. He portrays the role of the president as if he would be confined to leading the troops in military engagements. While Washington, with Hamilton as his aide, actually dressed in military regalia and mounted up to lead troops during the Whiskey Rebellion, they soon delegated that project to General “Light Horse Harry” Lee. That is the least likely role of the president today. Indeed, even during the ratification debates, that was a questionable view not usually advocated, as it frightened republicans by blurring the line between civilian control and military command and was thought likely to lead to the election of “military chieftains.”

The executive power clause is the principal source for the president’s implied or inherent powers, those that the president’s detractors would disparagingly call royal or prerogative powers. The textual significance is that, while Article I says that, “All legislative powers herein granted shall be vested in a Congress …,” Article II declares that, “The executive power shall be vested in a President …”[italics added]. That affirmative grant to the president has to mean something, and –unlike Article I regarding Congress–it has to mean more than the powers mentioned later in the text. The question ever since has been, “Just what does it mean?” Presidents have massaged that ambiguity and the flexibility of the other elastic clauses mentioned to act unilaterally, as necessity demands, usually in military affairs, foreign relations, and national security matters. Executive unilateralism came under particular scrutiny by Congress, the courts, the academy, and the media during the Bush(43) administration, though interest in that topic has slackened since the election of 2008–perhaps not coincidentally.

Not surprisingly, as advocate for the Constitution’s adoption, Hamilton does not spend time defending, or even recognizing, the theory of implied executive powers that he embraced soon thereafter. The enumeration of specific limited presidential powers and Hamilton’s soothing interpretations in Federalist 69 do not give due credit to the possible sweep of the executive office. His next essay presents a more forthright defense of the need for an energetic executive.

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

 

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Federalist 70 is the heart of Hamilton’s investigation of the nature of executive power. Publius returns to “energy,” a theme that he has addressed frequently in his essays as a necessary attribute of government generally, and the Union in particular. As executive power is the essence of government, energy is the essence of executive power. Energy in the executive produces vigor in the administration of law and expeditiousness in response to necessity. Too much energy, however, can threaten republican government and personal liberty. The secret is to find the constitutional version of Aristotle’s golden mean.

The Antifederalists had a lavish panorama of historical examples to illustrate the dangers of energetic executives. They proposed a multiple executive, instead, examples of which were spread throughout history, while others were close at hand in the states. Multiple executives are of several types. One, such as the consuls and tribunes of Rome or the kings of Sparta, are of equal dignity and can veto each other’s acts. Another, more favored by the states and based on the republican variant of the old British model, involves a governor-and-council structure.

There are others, not mentioned in Federalist 70. One is the modern British cabinet model, where ministers hold their portfolio independent of the “prime” minister through election by the party. Formally, they are the monarch’s ministers, but today this is a quaint fiction, as the monarch reigns as head of state, but does not rule. An American version of this can be found in the governments of many states, where various executive officials are elected independent of the governor. Those officials, like the California Attorney General, Secretary of State, and others, derive their powers directly from the state constitution and election by the people, not from appointment by the chief executive.

As anyone who has worked on a committee or sat in a meeting knows, the more people there are, the less of substance gets done, and the exponentially longer it takes to do so. Veterans of faculty meetings can bear particularly melancholy witness to those truths. Hamilton urges that multiplicity is welcome in the legislative department, where deliberation and the “wisdom of the multitude” are valuable to reach a “right” decision and to protect the rights of the minority. Indeed, haste in the passage of laws will result in badly-written legislation with unintended or—if the law is so long and complex that it has not even been read—unknown consequences, as well as in laws that may be against the people’s wishes.

In the executive, however, delays and indecision are damaging. As a member of General Washington’s staff, Hamilton personally must have been keenly aware of the incapacity of the Continental Congress and even the Board of War, its agency, to direct the war effort reliably and effectively. A multiple executive also courts the evils of faction, undermining stability. At the same time, a successful cabal among multiple executives can magnify their danger to liberty.

It is crucial, then, that the executive be unitary, to provide the requisite energy and vigor to accomplish the objectives of government expeditiously and without endangering the respect for law that haphazard and desultory administration brings. There are other benefits from a unitary executive, ones that, at the same time, provide the most effective protections of liberty. Those are transparency and accountability. It has been said that success has many parents, but failure is an orphan. Having a single decision-maker shines the light of responsibility on him: “The buck stops here.” The best protection against abuse by an overly-energetic executive is, predictably, the vigilance of the people expressed at the next election. But they cannot exercise that vigilance when multiple parties are pointing fingers at each other the way that members of Congress do when policies they have been championing become political liabilities. Nor can responsibility readily be gauged when politically tough issues are shunted onto appointed commissions, such as “deficit commissions,” whose “recommendations” are treated as binding.

Another limit on the executive comes through formal restraints. Some are institutional, such as fixed terms and removal through impeachment. Others are more in line with the “auxiliary precautions” Publius defends in Federalist 51 in connection with separation and balancing of powers. Examples are the qualified nature of the veto and the Senate’s role in approving treaties, in both of which the President is engaged in making law. With the exception of the appointment power, however, there are no formal limits on his explicit executive functions.

The objectives of executive government that Hamilton cites are instructive: Protecting against foreign attacks, securing liberty against domestic subversion, protecting property against riots and insurrection, and administering the law in an impartial and constant manner. In this classic political minimalism, one notes the absence of the trappings of the modern administrative Leviathan that has taken over functions best left to other institutions.

Despite the assertions in Federalist 70, the nature of the executive branch was ambiguous when the government convened. Hamilton, a fan of the British political system, contributed to that uncertainty. As Treasury Secretary, he envisioned the cabinet as an approximation of the British system, with the President as chief of state and as someone who presided over the administration of policies determined by rather willful cabinet officials exercising independent authority. Due to his close connection as Treasury Secretary to Congressional policy-making (and his long personal relationship with George Washington), Hamilton envisioned himself as the prime minister in this arrangement. There was some constitutional plausibility to this conception of a moderate multiple executive, as the Constitution provides that Congress can create a limited appointment power in “heads of departments” and sets up the Senate in some ways like the governor-and-council system. The Senate not only votes to approve appointments and treaties, it technically has an “advice and consent” role that could be read as requiring formal Senate participation before the president nominates an officer or makes a treaty.

Several developments arrested any significant movement in that direction. Textually, the Constitution vests the executive power entirely in the President, subject only to specified limitations, a point Hamilton himself urged further in his 1793 Pacificus essays during the debates over the Neutrality Proclamation. Politically, Hamilton left the Cabinet in 1795, reducing his influence, a trend that was accelerated when his patron, President Washington, left two years later. Even while Hamilton was in the Cabinet, Washington was not the type of person content to play a passive role. He favored a vigorous presidency, and it was clear that, while he listened carefully to his officials, he made the decisions. The Senate-as-council role was buried when Washington, after one soured attempt at consultation before treaty negotiations in 1789, refused to set foot in the building again. Washington’s presidency was intended to help define the ambiguous contours of the president’s powers, and he set the office firmly on the course of the unitary executive.

As a functional constitutional matter, the issue was settled over the course of the debate over the president’s power to fire executive officials at will. A presidential removal power is not specified in the Constitution, so it has to be implied from other powers. Though Hamilton wanted a strong executive, he appears to have favored the view that the president’s power to remove officials can only come from his power to appoint. As the latter requires Senatorial consent, so must the former, a position Hamilton endorses in Federalist 77. The reason for his support of what at first blush appears to be a dilution of executive unity is that he liked the British style of government. Presidents could come and go, but, if a new president could not unilaterally remove members of the Cabinet, those members gained political independence. Effectively, that made them the policy-makers and administrators as long as they maintained the confidence of the Senate. With that qualification, Hamilton favored a strong, independent executive branch.

The removal power occupied the first Congress’s attention. The matter was resolved by artful language in a statute that implied that the President had the inherent executive power to remove the secretary of state. While this was a victory for the unitary executive argument, there remained ambiguities. President Andrew Jackson won a clear political victory in favor of the unitary executive doctrine by removing the secretary of the treasury when the latter disobeyed a presidential order, even though Congress had given the secretary the discretion to act as he did. Analogous to Hamilton’s implied executive powers theory of the Pacificus letters, Jackson argued that the appointment and removal powers were both executive powers that, unless expressly limited by the Constitution, belonged to the President as head of the unitary executive branch.

As the removal controversy demonstrates, the unitary executive broadly implicates separation of powers that finds concrete expression in provisions of the Constitution. If those provisions are elastic, such as the executive power clause, the “take care” clause, or the commander-in-chief clause, the line between execution of policy and legislation of policy can become blurred. The need to find limits is matched by the difficulty of doing so. Much depends in specific cases on formal precedent (legislative, executive, and judicial) and customary constitutional practice shaped by broad popular acceptance. For example, the unitary executive theory underlies doctrines of executive immunity and executive privilege. Those concepts are not expressly addressed in the Constitution but are obviously connected to an energetic executive branch and the unitary executive that animates it. Though the Supreme Court did not address executive privilege until 1974, it arose early in the Washington administration, when the President set a precedent followed by almost all his successors. In implied powers cases, the need for action often determines the outcome, and foreign relations, military affairs, national security, and emergencies define their own scope of action.

Despite Jackson’s victory and a long history in support of the unitary executive, controversy still flares occasionally. A recent challenge to the unitary executive theory has involved presidential “signing statements.” These have long been used as expressions of reservation about the constitutionality of a proposed law. Critics argue that the president can veto the bill, if he believes it to be unconstitutional. If the Congress overrides the veto, is the president then bound to enforce the bill? He is obligated to take care that the laws be faithfully executed, but there is also the long tradition of executive discretion in the enforcement of laws. Moreover, if the law invades a presidential power or is otherwise unconstitutional, the president can refuse to enforce this statute.

Laws, however, are often many-layered creations. Why should the president have to veto the whole effort just to avoid enforcing one objectionable part? A signing statement can help. In fact, the signing statement puts everyone on notice about the president’s intentions. They are constitutional because the president as head of the executive branch is independently responsible under the Constitution for the actions of the whole branch in the enforcement of laws.

The unitary nature of the executive also has been challenged by some who cite to the existence of a vast array of “independent” administrative agencies as contrary evidence. Since the 1930s, the Supreme Court has upheld Congress’s power to limit the President’s removal power in regards to officers of independent agencies. Using the unitary executive theory, presidents since Franklin Roosevelt have formally rejected the assertion these agencies are beyond the President’s removal power. Such agencies are performing executive functions and are not otherwise recognized under the Constitution as a fourth branch of government. One may wonder, though, whether any dilution of the unitary executive paradigm is really the problem. The sheer growth of government (of which administrative agencies are the most significant part) is probably more responsible for the dearth of transparency and accountability citizens endure.

Critics of the administrative state see this exception from the application of the general rules for  separation and balance of powers as more evidence that these agencies are unconstitutional. The still-growing reach of the regulatory state assures that the issue will not go away. As the matter involves fundamental and shifting boundaries between the legislative and executive domains, it is thoroughly political and admits of no definitive settlement. But the broad theory of the Constitution has been settled in favor of the unitary executive that Hamilton defends in Federalist 70 and his later writings.

Tuesday, August 3rd, 2010

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

 

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Articles IV through VII of the Constitution are, even for many educated Americans, terra incognita. People may know about the first three articles, important as they are in defining the separation of powers at the national level among the three branches and in drawing basic divisions between the national government and the states. Despite their brevity, these often-overlooked articles play significant roles.

When the Constitution was adopted, the framers hoped, as the Preamble declares, to form a “more perfect Union.”  They recognized (in part out of political calculation) that a union already existed under the Articles of Confederation. They wanted to tweak the system enough to place it on a sounder political and economic footing. Part of their plan was to give more independence to a revamped United States government, as the first three Articles demonstrate. But, given the size of the republic and the dispersion of its population, the national government was expected to remain a comparatively restrained political player. While the suspicion over “consolidation” was often in the open, the enumeration of formally limited powers and the practice of a part-time Congress were evidence of the expected state of affairs.

Quite naturally, then, much was left to the constitutional domain and the political discretion of the states. Inter-state collaboration and cooperation were practical necessities. Half of Article IV deals with that fact of political life. The “full faith and credit” clause of Section 1 and the “privileges and immunities,” “extradition,” and (now superseded) “fugitive slave” clauses of Section 2 are testaments to the Framers’ concerns about potential interstate frictions that might undermine union. All but the last were also in the Articles of Confederation, and the same continue to be significant today.

One area of potential constitutional conflict in the future is whether or not a state that does not recognize same-sex marriage is constitutionally obligated to give full faith and credit to a same-sex marriage granted in another state. Currently, the federal Defense of Marriage Act protects non-recognition of a same-sex marriage granted in another state. But that law itself may be unconstitutional under Article IV. It’s a close case, though there is some judicial precedent for the position that a state need not recognize an act of a sister state that is repugnant to its own public policy.

The other half of Article IV deals with obligations of the federal government to the states. In little more than 100 words, Section 3 sets forth Congress’s powers to create new states and to dispose of territory and property of the United States. That section was the source of critical federal policies during the great westward push under Manifest Destiny through which unorganized territory became organized and, eventually, advanced to statehood.

Section 4 obligates the United States to guarantee to each state a republican form of government, to protect each state against invasion, and to render assistance against domestic violence if asked. The state of Arizona may well ask whether the federal government has breached that second obligation in failing to protect the border against armed marauders, thereby necessitating the state to take stronger actions against illegal aliens. The last part of Section 4 is one explanation for why the federal military response to Hurricane Katrina was so “late.” The federal government was constitutionally obligated to wait for a request from the governor for assistance, a request slow in coming.

Article V may be the most important part of the Constitution, as it provides the formal means of amendment. This was an area of laborious compromise and reflects a combination of experience with the Articles of Confederation and the various state constitutions, and the development of American constitutional theories of popular sovereignty that broke with English constitutionalism.

There are two methods of proposing amendments and two methods for ratification. The method used for all amendments to the Constitution, though not for the drafting of the Constitution itself, is to have a vote by 2/3 of each house of Congress. Though the matter is constitutionally not free from doubt, by long-accepted practice, the president’s signature is not needed. Many framers feared, however, that the Congress would not advance amendments that might curtail federal power. Hence an alternative permits 2/3 of the states to petition Congress for a convention to propose amendments. Though this method has not been used, some proposals have come close. There are almost the needed number of states for a balanced-budget amendment, a matter that is taking on added urgency in view of trillion dollar deficits.

If an amendment is proposed, 3/4 of the states must approve, either by legislatures (a “republican” principle) or state conventions (a “quasi-democratic” principle), as Congress directs. All but the amendment to repeal prohibition have gone the legislative route. These supermajority requirements were a compromise between the English constitutional theory (also used in early state constitutions) that allowed constitutional change by simple majority vote of the legislature and the unanimity requirement for constitutional change under the Articles of Confederation. The Constitution, the Framers concluded, must be amendable, but not so freely as to promote instability. Note, though, that the Constitution does not have the “democratic” option of amendment by petition or vote of the people directly, as many states have.

Article VI contains a pillar of our federal structure, the “supremacy clause.” That clause makes the federal Constitution, treaties, and statutes superior to conflicting state laws. The clause is an enhanced version of a blander clause in the Articles of Confederation. It enshrines a principle central to the revised structure of the Constitution, that of a sovereign United States independent of, and—within its delegated functions—superior to, the states. From a political perspective, it is not an overstatement to say that, for better or worse, this is the most significant provision in the development of the current (im)balance that exists between the national government and the states.

Equally important, Article VI expressly binds the state courts to abide by the federal supreme law when there exists a conflict with state law. That provision recognizes that, since the Supreme Court is the only constitutionally required federal tribunal, state courts might operate as inferior federal courts. It also creates a judicial “branch” that straddles the divide between federal sovereignty and state sovereignty more than the political branches do.

Article VII provides for the process of ratification. There are many fascinating historical undercurrents at work in the Article. First, it encapsulates the revolutionary nature of the process that led to the Constitution. It must be recalled that the Articles of Confederation required that the Congress approve any amendment, which then also had to be approved by the legislature of each state. Also, the charge from the Confederation Congress to the Convention was “for the sole and express purpose” of reporting to Congress and the states proposed revisions that still had to be approved by Congress and the states, all in conformance with the existing structure.

The Framers, however, created a completely new structure to replace the Articles. In Article VII, they made it sufficient for initial ratification that only nine states approve. In the resolution to send a courtesy copy to the Confederation Congress, the Philadelphia Convention very pointedly required approval by the states but not the Congress. Moreover, the approval was to be by conventions in the states, not by the legislatures.

The non-unanimity requirement is significant because the Framers faced a practical problem. Rhode Island was so opposed to the project that they had not even sent delegates. They were, therefore, hardly likely to approve. Rhode Island’s non-attendance, by the way, is one reason why the Committee of Style changed the Preamble of the Constitution from “We, the people of [then listed the states]” to “We, the people of the United States.” Moreover, the Articles had taken four years to approve. The concern was that unanimous approval would encourage a similar delay. Delay works against constitutional change, as the supporters of the Equal Rights Amendment found out in the 1970s. The Framers gambled that adoption by nine states would create its own momentum for adoption by the other four. The gamble worked, but it turned out to be a close-run thing.

The requirement for conventions was both practical, in that the anti-Constitution forces were more likely entrenched among the political interests in the state legislatures than among more broadly selected conventions. Conventions also reflected better the emerging American political theory that, while legislatures made ordinary laws, constitutions were expressions of shared fundamental political values that went to the very purpose of government. Constitutions, then, were social contracts resting on more direct exercise of popular sovereignty. They were, in the words of George Washington, “explicit and authentic acts” of the people. Since the entire population of a state could not be brought together to deliberate and vote on the Constitution, a convention selected for that purpose from the people of the state was the next best alternative.

A final oddity in Article VII is that the signatories made a rather sterile declaration of witness. In the Articles of Confederation, the signatories declared that they fully ratify and confirm everything said therein and pledged their constituents’ support. In the Constitution, the signatories merely attest that the “States present” (i.e., no Rhode Island) unanimously approved the Convention’s actions. A number of delegates had left the convention because they personally disapproved of the result, as did some of those who remained to sign. In this manner of attesting, there was no personal commitment of support that could prove politically problematic back home. It is like being a witness to a will signing. The witnesses merely attest that the process, such as having the testator sign the document after declaring it to be his will, was completed properly. The witnesses are not declaring their support for the substance of the will. Therefore, if the testator disinherits his family and gives everything to his golf buddies, the witnesses are not morally implicated.

In the end, it was somewhat of a political miracle that the Constitution was adopted at all. It is not a perfect document, and, had the people then been able to see the political reality in which it operates today, they might well have preferred something else. But it endures for many as a symbol of what should be, not only what is—the idea of the Constitution as much as its function.

Monday, April 26th, 2010

Professor Joerg W. Knipprath

http://www.swlaw.edu/faculty/faculty_listing/facultybio/114010

Southwestern Law School

Los Angeles, California

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

Posted in Articles IV – VII of the United States Constitution, Constitutional Scholar Essays | Edit | 47 Comments »

47 Responses to “April 262010 – Articles IV – VII of the U.SConstitution – Guest BloggerJoerg KnipprathProfessor ofLaw at Southwestern Law School

  1. Daniel Smith says:

    Could states like California and Texas, with the approval of Congress, be divided thereby avoiding the presidential problem of 2000.

  2. Shannon C. says:

    The supremacy clause allows Federal Law to supersede State’s law. But doesn’t that mean the state’s don’t have to adhere to federal law if that federal law is unconstitutional-such as mandated healthcare?

  3. Shannon C. says:

    Do states have the right to secede from the Union?

  4. Susan Craig says:

    The provision for states to propose amendments makes a Constitutional Convention a lot more likely in the present situation as I (and I think most) thought it would entail a redo of the entire document. As I read it, at the next Governors meeting they could convene a convention specificly to draft a balance budget amendment or a strengthening of the 10th amendment change to put before congress. This makes the objections to a ConCon less daunting.

    I, also, appreciated the reminder of the drafters humanity with the inclusion of the errata sheet in the last article.

  5. Reed W says:

    Thanks for clarifying and bringing it all into current events.

  6. Carolyn Attaway says:

    @Shannon – according to sources, Texas v. White, 74 U.S. 700 (1869) was argued before the United States Supreme Court in 1869. The Court held in a 5–3 decision that the Constitution did not permit states to secede from the United States, and that the ordinances of secession, and all the acts of the legislatures within seceding states intended to give effect to such ordinances, were “absolutely null”. However, the decision did allow some possibility of the divisibility “through revolution, or through consent of the States”.[29][30]

    I find the last line fascinating, given all the current legistlation that is being formed in many states since this current administration came to office. It seems the 2 major issues, healthacre and immigration have caused the most uproar given the current number of states suing the federal gov’t over the healthcare mandate and commerce laws, and the new immigration law that was just signed in Arizona.

    However, all states appear to be working on their State Legistlation to prepare for any possible future conflicts with Federal Law. For example on April 1, 2009, (as I understand it) the Georgia State Senate passed a resolution 43-1 affirming states’ rights based on Jeffersonian principles; and for other purposes. Acts which would cause a nullification of federal law include, but are not limited to:
    Further infringements on the right to keep and bear arms including prohibitions of type or quantity of arms or ammunition; Any act regarding religion; further limitations on freedom of political speech; or further limitations on freedom of the press, and Requiring involuntary servitude, or governmental service other than a draft during a declared war, or pursuant to, or as an alternative to, incarceration after due process of law.

    It will be interesting to follow the Supreme Court procedure regarding States Rights in the HealthCare Case. And as I understand it, the healthcare law cannot be challenged until it goes into effect and some one or entity is harmed by the law. Such as a shareholder of a company that goes out of business due to the costs/taxes imposed by the law, they can sue the gov’t for theft. Also, the commerce laws makes no provision to force someone to engage in interstate commerce.

    Also, I appreciated the point made about the Federal gov’t being constitutionally obligated to wait for a State Governor’s request for assistance before intervention can be enacted. The contrast between Katrina and Arizona is striking regarding the assistance from the Federal Gov’t.

  7. Susan says:

    This is so interesting. Yesterday, my husband and I were having a discussion about the new immigration law in Arizona. I see it as unconstitutional and he see’s it as the state having to do something since the Federal Government has not fulfilled its obligation. We had to agree to disagree on this one.

  8. Robert Shanbaum says:

    Shannon C. wrote, “Do states have the right to secede from the Union?”

    Apparently not. See, U.S. Civil War, 1861-1865; an example of a Constitutional dispute not settled by the judiciary.

  9. Robert Shanbaum says:

    Susan Craig, I don’t see where a “Governors meeting” could enter into any call for a Constitutional convention – a petition by “the Legislatures of two-thirds of the several states” is the requirement. The executives of the states are left out of the process.

    Note that there’s no language that suggests that there would be any limit to the amendments that could be proposed at such a convention.

    There’s a requirement in the Connecticut Constitution that requires, every 20 years, a referendum on whether to hold a constitutional convention to amend (or conceivably replace) the state constitution. This was most recently held in 2008, when 59% of voters answered “no.”

    The reason the question failed, I think, is that it was seen as likely to attract activists – persons having one axe or another to grind – to a disproportionate degree. In the pursuit of one’s objective by that means, one runs a substantial risk of getting something one doesn’t want .

  10. Robert Shanbaum says:

    By the way, Shannon C., you may be interested in Andrew Jackson’s response to your question, given 33 years before the issue was settled with finality:

    http://avalon.law.yale.edu/19th_century/jack01.asp

    Jackson could run on; here’s the most apposite passage:

    But each State having expressly parted with so many powers as to constitute jointly with the other States a single nation, cannot from that period possess any right to secede, because such secession does not break a league, but destroys the unity of a nation, and any injury to that unity is not only a breach which would result from the contravention of a compact, but it is an offense against the whole Union.

  11. Susan Craig says:

    State Suffrage? Hasn’t that been abrogated by the XVII amendment? Article V: The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

    The only thing that has been changed is that the State has been deprived of its Suffrage by the XVIIth amendment which removed from the state the right to select its Senators.

  12. Article V is my favorite part of the entire Constitution, for it puts into the hands of the states a way to bring our runaway Congress back under our control. We need additional amendments to:
    1. Impose lifetime term limits of 12 years on Congress
    2. Impose a requirement for a Balanced Budget
    3. Repeal the 16th Amendment and force implementation of a consumption tax(i.e., the Fair Tax.
    4. Impose Congressional integrity that: (a) forces a statement of Constitutional authority to be attached to every bill, (b) forces an affidavit that they have read and understand every bill, (c) prevents them from exemting themselves from any law, and (d) prevents them from enacting any program for themselves that is not available to the general public.

  13. Ron Meier says:

    Thanks, your comments provide some interesting additional color and current relevance that I had not picked up on my initial reading and note taking.

  14. Susan Craig says:

    There is an annual meeting of Governors. If at this years convocation of governors, they got 34 of them to agree that an amendment was needed (say on clarification of the commerce clause, immigration or a balanced budget) would that be a call to convene a Convention for that limited purpose?

  15. Lillian Harvey says:

    I was thinking the same thing, Susan, after reading the Articles and Prof. Knipprath’s blog. Given the political climate today, we certainly can not count on Congress to act on behalf of the People as their will appears to serve the interest of their political party and ideology instead. That’s my opinion anyway. I also don’t feel we could count on all the state legislatures for the same reason. But, some guidance on setting up conventions within the States would be a start.
    A question for the participants: if you were part of a constitutional convention in your state, what issues would you want addressed? Where do you think our biggest problem is? The one condition I would suggest is that the 50 United States remain intact, as I believe our strength has always been in our unity.

  16. ERL says:

    Could the State Legislatures limit the agenda of a Constitutional Convention? For example, could 2/3 of the states approve a resolution calling for a convention, but only to consider specific amendments? Any other topics would be off-limits, and the state delegation would be given strict instrutions to withdraw if any other topic was discussed. The only amendments that could be discussed and acted upon would be those approved by at least 2/3 of the states.

    This would be a means to “control” a convention, and prevent it from spiraling out of control and overthrowing theConstitution itself.

    This method thus imposes three “filters” (or checks, if you will), on a Constitutional Convention.

    First, the agenda items would have to be approved by 2/3 of the states. No other topics would be permitted.

    Second, the Convention, made up of delegations from each state that chooses to participate (even if they did not approve a resolution calling for the convention in the first place), would debate each proposed amendment. The Convention would decide (by majority vote) whether to propose an amendment, and would also approve the final language of the amendment. The debate at the convention would thus be a second “filter” (or check).

    Third, any proposed amendments would be sent to the States for consideration (either by state legislatures, or by state conventions). This would provide the third “filter.”

    Finally, the Convention would be public, and would probably generate a great deal of media coverage and discussion. This openness would serve as a sort of “brake” on the convention, because the public would not accept a radical departure from the Constitution.

  17. Shannon C. says:

    Lillian Harvey , I live in Georgia. My desires would be the following Amendments:

    1. Balanced Budget
    2. Term Limits-one term each, as I am so anti Congress:)
    3. Repeal the 16th Amendment and say a human’s labor cannot be taxed (income tax). A consumption tax would be my choice.
    4. Reword the 10th Amendment to make it understandable to the Big Government Lovers: If it isn’t in theConstitution, stay out of it!

  18. Susan Craig says:

    I feel the relevant portion is as follows; on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; If called for by their governors the individual states legislatures concurring would constitute a call for such a convention and it also says nothing about needing to start from scratch the scope could be as confined as necessary.

  19. Thomas Soyars says:

    @Susan — can you point out a section of the Constitution that makes the Arizona law unconstitutional? What about Article IV Section 4. “and shall protect each of them against Invasion” Look sto me like the federal government has failed in their duty and the state is taking it upon itself to remedy the problem. Congress has also failed to “establish a uniform Rule of Naturalization” (Article I, Section 8).

    @Mike Lowry I agree with most of your recommendations but I have a problem with a balanced budget amendment that is too strict. There may be times (war, severe natural disaster, economic upheaval) that would require the government to run a temporarily unbalance budget. I would propose a measure that teh government be required to have a balanced budget over a rolling five year period. That way you could run a deficit in one or more years and be able to make it up in other years. It would give more flexibility but still provide for a balanced budget overall. I would also add an amendment that the federal government cannot pass unfunded mandates onto the states.

    @Joerg Knipprath — the best blog yet (in my humble opinion).

  20. Joe Rech says:

    -Term limits – three for House, two for senate, two for Pres. Retirement gained in thirds for House, halfs for Senate and Pres.
    -Balanced budget – except in times of national emergency (disaster or war)
    -Repeal taxes – any current taxes enacted for a specific purpose and that purpose no longer exists, immediate repeal.
    -VAT replace income tax, started at some level like 11% and NEVER to exceed 17%, not always levied on all levels of production and not always the same on all products (can be 11% on food, 17% on yachts?)
    -limits on other taxes – 25% inheritance tax on $1mil or more, cap gains tax limits 15%
    -reiterate oath – support and defend the constitution – not interpret the constitution.

  21. Donna Hardeman says:

    Lillian – I agree with Shannon’s List (which is almost identical to Mike’s list). The one thing I would point out, however, is my belief that Congress – either house – be allowed 2 terms. I believe you need some members in Congress who are not “lame ducks” i.e. who know they will have to vote with the will of the electorate if they expect to get elected again. However, by denying the long term benefits of continued “service” we would be denying the chance to get so firmly embedded that political favors, etc. become more important than the people.

    Susan – could you clarify your point about Suffrage being denied? I’m responding to what I think you said but am not totally sure I understood you. Suffrage (voting) rights in the U.S. Senate have not been denied to the States. All States still have 2 Senators representing them. What changed was the manner of selecting the Senators. Originally it was the state legislature and now it’s by popular vote.

  22. Shannon C. says:

    Suasn Craig, You tell ‘em! Good points. Man, I am so glad this site exists. The only thing I wish was a little different is if the guest bloggers could opine in on a few of these a few times a day to answer a few questions.

    Great site!!!

  23. Donna Hardeman says:

    Susan – you and your husband seem to be on 2 different issues in discussing the immigration law. He is certainly correct in saying Arizona took action because the federal government wouldn’t. You may also be correct in saying it’s unconstitutional. Problem is, I couldn’t find the actual text online so I can only comment on what news is out there. It has been suggested that immigration laws are federal rights and not states’ rights. However, if the Arizonalaw simply mirrors the federal law in making it a state crime to be in Arizona illegally, I don’t think this would pose an issue. Also, it’s been suggested that you can’t racially profile by stopping someone solely for the purpose of checking identification. Jan Brewer claims the law simply requires identification to be carried so proof of legality can be shown if someone is stopped for a crime. This also would pose no constitutional problem. If you figure out where the text is, let me know and I can blog a little more intelligently on the subject. Do you have a specific challenge to the constitutionality?

  24. Carolyn Attaway says:

    Hello Shannon C. from a fellow Georgian!

    Our State has to have a Balanced Budget, so I agree that those same rules should apply to the Federal Gov’t. The Pay As You Go is a complete disaster and Congress cannot even stick to their own rules.

    I think it should be a 2-term limit, just because I personally feel that 1 term is not enough time some really good congressmen need to get issues addressed and completed. However, I feel every congressman should pledge to uphold the Constitution, and that impeachment should be allowed if they abuse their time in Congress.

    Along with the 16th, I think the 17th Amendment should be repealed. Senators should represent their State’s interest, and quite going rogue.

    The 10th Amendment can be reworded to be more specific, but I think the problem lies with the States giving to much of their power away in exchange for funds. Over time, all those little crumbs they have been throwing away to the Fed. Gov’t, have now been gathered together, and the States are realizing half their bakery is gone, and managed by someone else.

  25. ERL says:

    Another amendment that should receive serious consideration is a “Single Topic Legislation” requirement. Several states have a provision that each bill considered by the legislature must have a single topic only. So-called “omnibus” bills are prohibited, as are “earmarks” and “riders” that are unpopular expenditures attached to an important bill. (The Stimulus Package passed last year was a hodgepodge of pet projects. It is unlikely that those projects would pass if they stood alone).

    In other words, every proposal considered by Congress would have to stand or fall on its own. This would help reduce deficit spending by forcing Congress to look at each proposal separately, and not as small earmarks on a gargantuan bill.

  26. Debbie Beardsley says:

    “Equally important, Article VI expressly binds the state courts to abide by the federal supreme law when there exists a conflict with state law. ” I am taking this to mean that the states must follow Federal law at a minimum. If so, how and why are the states allowed to “decide” to not follow federal law. Ie, California and the medical marijuana or the wonderful mayor of San Francisco declaring a sanctuary city????? Doesn’t this behavior and the lack of action on the part of the government a big slap in the face to the Constitution?

    I am loving reading and learning but at the same time it is very disheartening to see how far away from theConstitution we have strayed.

  27. Chuck Plano, Tx says:

    In regard to Texas being able to devide itself as was suggested by someone, reference California and Texas dividing in order to prevent a repeat of the 2000 Presidential election, Texas has that right as stated in the Joint Resolution for the annexiation of March 1, 1845 . This right was mantained and specifically quoted in other settlements of border disputes with Mexico in the Treaty of Gadulape Hidalgo and the Treaty of The Gadsden Purchase. This is only one question regarding Texas as Texas entered the United States as a free and Soviourn Nation and yet it’s annexiation was by joint resolution and not a treaty. The Senate rejected a treaty to annex Texas four times in 1844 so did Congress have the right under the Constution to Annex a Nation?? The Constution is silent on this as it refers to territories, article IV Section 3, and not nations.

  28. Andy Sparks says:

    @Robert: Does might make right? Historically there have been many occasions where states have threatened secession: some of the western states when it seemed the U.S. would support a Spanish decision to close off the Mississippi during the early days of the Republic, some radicals in the New England states during the War of 1812, Thomas Jefferson even initially had secessionist language in the Kentucky Resolutions he drafted in 1798 (he was convinced to remove the offending passage before it was submitted). Why would parties threaten to secede if they didn’t think it was a viable option. While the Texas vs. White case put a law on the books regarding the legality of secession in 1869 after the Civil War, it would be interesting to see if it could be held up if challenged. The fact is that the Constitution is fairly quiet regarding the constitutionality of the issue.

  29. Donna Hardeman says:

    Guest bloggers coming in at the end of the day to review some of the comments and questions is a supremely good idea. Shannon – I must admit, it had occurred to me also but I’m glad you put it in writing. Maybe this idea could be incorporated into our learning process. We all have great comments and questions but the experts here could help.

  30. Susan Craig says:

    States Suffrage has been taken away and another Representative has been put in the Senators place. As I read the original articles the House of Representatives was to have been the representative body of the ‘vox populi’ whereas the Senators were to be the corporate representation of the State as a corporate whole. Now there is no longer a corporate representation of the the State but another directly selected Representative of the people.

  31. WeThePeople says:

    Making it so that 2/3 was needed for ratification seems very strategic to me. It seems that the government enjoys that they don’t need everyone’s approval. (As in the 3/5 Compromise in 1787– WHY would being black ever make you less of a person?) I also appreciate that in Article 6 it is stated that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” If religious discrimination isn’t acceptable in government, why is it still so prevalent?
    If one state has a controversial law, like legalizing same sex marriage, would holding a convention be the first step towards creating an amendment? After that it would run through both the houses and then to the people…

  32. Hi all, great stuff again.AZ,Govner is a brave soul, she has pushed the hand as no one has managed to.After reading J, Knippraths comments it seems to me that in Art.4 section 4,(protection fom invasion) might be the key in fighting for the Constitutionality of the States new law.However I have this nagging feeling that there is probably grounds to overturn it… in that perhaps it could be construded that the long, long history of NOT inforcing the laws that are on the book already my be percieved as consent.On top of that when an act that is against the law is ignored, people begin to think of it as “their right” to continue an set aside the law they know exists,but have rendered it without any reach.
    Is this the reason that the laws have been ignored so long, was this the grounds that were maturing as the years wore on( I know that sounds like conspiracy stuff)but I find no sense is the past lack of willingness to act by DC.

  33. hey! It’s Janine Turner. I agree! I would LOVE to get the Constitutional Scholars of the day to chime in at least once more during the day to answer questions. This was my original intent. I am working on it! I am so glad y’all have joined our blog. Isn’t it wonderful to have this opportunity to study our Constitution. I am learning so much – such as why the Preamble states, “We the People of the United States..” That’s a cook piece of trivia. Yes?

  34. Shannon C. says:

    Janine, GREAT thing you are doing. As a dad of two little girls, this is so important for their futures.

    Can someone tell me if I have this right? The Supremacy Clause, as I understand it, means that federal lawsupercedes state law. However, I take the last sentence to mean in today’s language , “UNLESS the federal law is unconstitutional or goes against an existing state law.”

    My point is, just because the federal government mandates somthing like healthcare purchasing, that does not mean it is constitutional.

    Any thoughts?

  35. J.D. Wiggins says:

    Please comment on Article VI “Supremacy Clause.” Couldn’t this be used as a back door for making the Second Amendment null and void?

  36. There are a lot of terrific questions here. I wish we could have a seminar to discuss them all. Let me just address a couple. ERL asked whether the states could limit a constitutional convention to a particular topic. If 34 states call for a balanced budget amendment, technically Congress would call a convention to discuss only that topic. But what if the delegates decided to push further? This is unknown territory, and why most constitutional law professors and most politicians oppose this method. It is less the states than the Congress that is likely to fear a run-away convention. Congress could refuse to forward to the states anything that went beyond the charge to the convention. However, there is a precedent for a run-away convention going beyond their charge and then submitting their product directly to the states. That would be the Philadelphia Convention of 1787. Their action is based on the 18th/19th century theory of popular sovereignty that the people, as soon-to-be Supreme Court Justice James Wilson said at the time, “The people may change the constitutions whenever and however they please.” Kept within the context of Article V, this is not even that radical. Could the people change the Constitution outside Article V, simply by gathering in convention (say, a huge town hall meeting over the internet)? That issue was argued before the Supreme Court in 1849, arising out of just such an attempt to adopt a new constitution in Rhode Island (which controversy produced a small “insurrection”—the Dorr War). The attorneys, including Daniel Webster and other high-powered talent, argued the issue of popular constitutionalism exhaustively; the Supreme Court then ducked the issue, deeming it a non-justiciable political question not suited for the courts. There is insight in that. Ultimately, these basic constitutional issues are political. Could today’s Congress refuse to pass along other constitutional changes demanded by a convention, without appearing to disregard popular will? The Confederation Congress couldn’t oppose the political appeal of the Convention’s action. On the other hand, today’s Congress may not be as sensitive to the popular will.

  37. Let me answer a couple more. The single topic issue. There is a historical argument exactly like that. It arose out of the “line-item veto” controversy, when Congress in the 1990s tried to give the President a limited line-item veto over certain budgetary and tax issues. The Supreme Court found that to be unconstitutional. One argument in support of the law is that the Constitution requires each “bill” or joint resolution to pass both houses and be presented to the President. Some historians analyzed the term and argued that, at the time of the founding, the meaning of “bill” was understood to focus on a single subject. Plausibly, that would have required each budget item to be approved separately, rather than as one “Omnibus Budget Bill.” However, the practice since nearly the beginning has been to allow bills to address more than one subject.
    Merely having governors call for a convention is not enough. Legislatures have to act. Do legislatures have to phrase their petitions identically? Or just enough for Congress to get the message? Again, that is ultimately a matter of political pressure. Could states rescind their petition before a convention is called? Probably yes.
    As to the Supremacy Clause, for the states to be bound by a federal law, it would have to be constitutional. But sometimes states are prohibited from acting, even if there is no specific federal law against them. Sometimes the mere existence of a federal power in the Constitution prevents a state from acting is the state’s action conflicts with the purpose of the provision in the Constitution. That’s called “dormant federal power” theory. If the Constitutionis said to make a certain power “exclusive” in the federal government, the states cannot act in that area at all. One possible example is the federal power over immigration and naturalization. That is one potential problem for parts of the AZ law. If the Constitution intends for federal power to be exclusive, then states cannot act even in trhe absence of federal regulation or even in support of similar federal law. I have posted about this further on my blog.

  38. Robyn says:

    ERL, I agree with a Single Topic/Issue Legislation. Not only would the ‘we, the people’ see the text (hopefully), we would also know who supports the legislation (or is beholden to special interests/lobbyists. And need I say, it would be a short bill! KIS – Keep It Simple!

  39. Lillian Harvey says:

    Hi Georgians and others… Virginian here :-) ). These are my thoughts on the Constitutional Convention.
    First fix some problematic fixes: Repeal the 16th and 17th Amendments.
    -Repealing the 16th returns to Congress the authority to impose import and excise taxes only. How they work within that framework would be an interesting national discussion, whether it be through VAT or Fair Taxation. One thing I like in the Fair Tax proposal is that the percentage of your purchase that is the tax is on your sales receipt. If it is increased, the consumers, We the People, can demand to know why. I am against the Flat Income Tax because we all know that flat tax percentage will increase. Repealing the amendment that allows income to be taxed is critical to me.
    -Repealing the 17th would put Senators back to work for the States they represent. If they are going to be there forever, they better be working for the State legislatures that sent them instead of a political party machine.
    -I would love to see the language clarified on the recess appointments clause. If the Executive can’t get an appointment through the Senate during regular sessions, there is something wrong with the appointment. It sets up too much game playing and distracts from the work that needs to be done. Although worrying to me, it is not as important as the repeals of the aforementioned amendments. I am in a “less is more” mood.

    From what the Professor has written, the Omnibus-type bills Congress seems to love appear to be the source of our budgetary problems. When I think about it, the greatest objection to the Healthcare bill was its size and scope. The call to kill that bill and deal with each component separately so the issues of access, cost and the overall impact on the economy/businesses could be better anticipated was the loudest from We the People. But the Executive and Congressional leadership absolutely refused to do this. Why?
    Now we are in a real mess. You can’t just repeal the bad parts; the whole thing has to go. And it is my belief that it should. If the Congress can not do something correctly, that power to manage these issues should remain with the States. Then Congress can clean up their act or we clean up the Congress in the next election cycle.
    Is there a way to write constitutional language insisting upon one bill, or issue, being dealt with at a time? It seems that the Supreme Court ruling against the line item veto was based on the notion of Congress legislating one issue at a time. Since that is not the case, is the Supreme Court decision relevant?

  40. Shannon C. says:

    Mr. Knipprath, thanks for your willingness to come back and answer some questions!!! You did a good job.

  41. Gitel says:

    @WeThePeople – nobody ever said being black made someone “less of a person.” Remember, the more people in the state, the more representatives the state receives. The problem was if black slaves were counted as part of the population, the southern slave states would be entitled to more representatives. The northern states were against that. Of course, the southern states wanted to count the slaves so they could have the extra representatives.

    The compromise was made so the south wouldn’t be “over-represented” in the northerners’ view. It never says anywhere in the Constitution that a black is “less of a person.”

    Practically speaking, a state would get 1 representative for 30,000 white citizens, but it would take 50,000 black slaves to get another representative.

  42. Robert Shanbaum says:

    @Andy: I do not think that “might makes right”, but I think that might sometimes makes fact.

    As you suggest, the Constitution itself is silent on the issue, although one can trace the commitment to a “perpetual” union stated in the Articles of Confederation through the “more perfect union” objective stated in the Constitutionas one approach to arguing in favor of the voluntary act of union being legally undoable.

    Given that there is no power of secession clearly reserved to the states in the Constitution, it’s hard to see how the question matters much from a practical standpoint. Whether a state would be “allowed” to secede would be determined by the actions of the remainder of the Union, which could either force the issue or not – just like the last time the question arose. There’s no court in which the controversy might be meaningfully resolved; the seceding state would hardly be likely to recognize the jurisdiction of U.S. courts.

    Given our avowed (or maybe I should say “presumed”) commitment to the right of self-determination, at least when it comes to other peoples, I don’t think that the actions of the U.S. in the Civil War were necessarily “right”, but I think I’m glad the Union was preserved – “right” or not.

  43. Chuck Plano, Tx says:

    So Robert if preserving the Union is something that is best for the whole why did the United States at the time Texas declared it’s independence from Mexico the United States was one of the first to recognize that or when the State of Georga declared her independence from the USSR and the other Baltic and Eastern Block countries did the same we seemed as a Nation to think that was the “right” thing to do. It was because we believed that “People” retain the right to self determination and that right is granted to us by “God” not the state.

  44. Mary Lou Leddy says:

    I am so excited about this project. Studying the Constitution has been a real eye opener for me. I must admit it is frightening to see how far this great country has veered from the Constitution . I am however uplifted by reading the blogs from all of you. I firmly believe that by becomimg more aware of the founders thoughts and words we can make much better choices of candidates who run for office. Candidates who are believers and supporters of theConstitution.
    Special thanks to Janine & Cathy

  45. In readiing about a state honoring a homosexual marriage as law when they were not entered into this law was quite surprizing to me. This is what we call a slippery slope where it comes to recognizing something a violitile as this subject is. I would have a difficult time condoning this as constitutional but evidently it is. This is one thing I think the Framers of this constitution would never condone nor would give credence. So the amendment to this law had to be made so that a state would not have to be forced into an immoral state simply because they disagree and have a moral duty to uphold. These fianl articles have an impartail upholding in passing that they needed only witnesses and not a quorum of 2/3 of the staqtes representatives. This was so because one state never was there to cast its vote nd thereby be apart of this constitution.

  46. Andy Sparks says:

    Robert,

    Well put. I would point to the 10th amendment which specifies that those powers not specifically delegated to theConstitution are reserved to the States or the People as an argument for (at least) the possibility of secession. While I may disagree (somewhat) to your argument, I do not disagree with your sentiment. I, for one, am glad the Union won despite being born and raised in Texas.

  47. yguy says:

    “Currently, the federal Defense of Marriage Act protects non-recognition of a same-sex marriage granted in another state. But that law itself may be unconstitutional under Article IV. It’s a close case…”

    It shouldn’t be. The push for same sex marriage is clearly an attempt by some for whom liberty means license to impose their immorality on society at large, and clearly the full faith and credit clause was never intended to facilitate such perfidy.