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