LISTEN ON SOUNDCLOUD:

As the two previous essays have explained, we are increasingly governed not by our elected officials in Congress, but rather by an administrative state which makes most of the national government’s policies.  How has this affected the way Congress functions, and how it represents the people?  The administrative state has fundamentally changed the way Congress works, and this change has taken place over two distinct eras.

Throughout most of the twentieth century, while the administrative state was being constructed and expanded, Congress decentralized its power to committees.  These committees specialized in the subjects that the bureaucracy was created to regulate: agricultural production, workplace safety, consumer product safety, aviation policy, financial regulation, environmental protection, and so forth.  By decentralizing its own power into these specialized committees, Congress created a system that enabled it to supervise and oversee the work of the administrative state.

Congress was able to remain in control of the administrative state, in spite of the fact that the bureaucracy was ostensibly controlled and supervised by the executive branch.  Congress remained in charge due to two powers: the power to empower agencies by authorizing them to make policy, and the power to appropriate money to agencies.  Agencies needed Congress to give them power and funding.  This meant that when members of Congress – typically those on the relevant committee – demanded agencies to make certain decisions, the bureaucrats were happy to oblige.

Congress’s structure, throughout the twentieth century, in other words, was perfectly designed to supervise the administrative state it created.  But it was no longer representing the people in the making of law.  Instead, individual members had power, due to their committee assignments, to please their own constituents rather than deliberating with their colleagues on the bills that would promote the good of the country.

During this period, both parties in Congress largely supported the increasing role of the administrative state in making policy.  Members of Congress, regardless of their party affiliation, enjoyed the benefits that they derived from the administrative state.  Political ideology mattered a lot less than whether a member could bring home benefits to his or her constituents, and members were happy to play this role regardless of their partisan affiliation.  Congress could pass vague bills that promised to accomplish huge goals such as cleaning the air and improving automobile safety, but the costs would be imposed by the agencies that implemented the regulations necessary to attain those goals.

This is surely one reason why, throughout the twentieth century, the nation witnessed a steady increase in reelection rates to Congress, the rise of career members of Congress, and a decrease in voters’ sense that the government reflects their wishes.

Things have changed in important ways since the last century, however.  Instead of both parties in Congress agreeing on the legitimacy of the administrative state, and using it to promote the narrow interests of their constituents, one party has begun to question the legitimacy of the modern administrative state completely.  As the Republican Party became more consistently conservative, culminating in the 1994 and 2010 midterm elections, partisan politics has reemerged in Congress.  Newt Gingrich, the Speaker of the House after 1994, took some powers away from committees and centralized some power in the Speaker’s hands, allowing the party leaders in Congress to bring partisan politics, and the fight over the size of the national government, back into Congress.

In this second phase of the relationship between Congress and the administrative state, Congress is no longer content to oversee the exercise of administrative power.  Instead, one party in Congress seeks to constrain this administrative state, while the other defends it.  This has made Congress more polarized and more gridlocked, but it has also caused Congress to become weaker.  Congress was still an “impetuous vortex” in the twentieth century, just as James Madison had predicted it would be.  It ostensibly delegated power to the bureaucracy, but it controlled the bureaucracy behind the scenes.  Today, on the other hand, Congress has become so deeply divided that its members no longer act institutionally, defending and expanding congressional control of the administrative state.  Instead, they fight over the legitimacy of the modern state itself.

Paradoxically, the administrative state did not gain its powers at the expense of Congress.  Rather, Congress gained the most when it delegated lawmaking power to the bureaucracy, because members could claim credit for fixing problems but avoid the responsibility for the modern state’s costs.  As Congress has become increasingly polarized and gridlocked, it neither oversees the administrative state systematically, nor has it regained the original responsibility for making laws that our Constitution’s Founders envisioned it should have.  It is increasingly relegated to the periphery of American politics, eclipsed by the President, by the Supreme Court, and the bureaucracy.  Far from the republic’s crown jewel, Congress sadly has become the country’s most despised political institution.  It no longer resembles the representative, lawmaking body that the Founders intended it to be.

Joseph Postell is Associate Professor of Political Science at the University of Colorado-Colorado Springs.  He is the author of Bureaucracy in America: The Administrative State’s Challenge to Constitutional Government.  He is also the editor of Rediscovering Political Economy and Toward an American Conservatism: Constitutional Conservatism during the Progressive Era.  Follow him on Twitter @JoePostell.

 

Samuel Postell is a Ph.D. student at the University of Dallas.

LISTEN ON SOUNDCLOUD:

Every fourth of July American citizens recognize the signing of the Declaration of Independence and the revolution that gave birth to our country, but very few remember the revolution that occurred in Congress about one hundred years after the revolutionary war.  That revolution has had profound effects on how Congress works today.

This revolt occurred in 1910 and was a revolt against the Speaker of the House.  It featured Joseph Cannon, a powerful and formidable speaker who used his power to the hilt in order to ensure that the will of his party was carried out through the representative body of the nation. The revolt against the Speaker is not only a unique story in our nation’s history, but one that modified the orders of the House and the powers of its Speaker.

Prior to this revolt Speakers of the House had three important powers that allowed them to fulfill the will of their party. They had the power of committee appointment, the power of recognition, and they were the chair of the “rules committee.” These powers in tandem allowed the Speaker to dictate the bills that would reach the floor, recognize who would speak on the given bill, and also determine the rules that governed the deliberation upon the bills.  Speakers would typically use these powers on behalf of their party, to ensure that the majority party was able to pass the agenda that voters sent them to Congress to enact.

In 1910, however, the Republican Party, of which Cannon was the leader in the House, was divided between conservatives and progressives.  Cannon, a conservative, was consistently suppressing the influence of the progressives in his own party.  Progressive politicians, who deeply distrusted parties in general, began to resent the power vested in the Speaker which was being used to thwart them.  They believed that political parties rendered government corrupt and irresponsible; that the laws that actually governed the nation were not a product of the people, but rather of a select group of interested individuals who used their personal influence to control the government.

It was a progressive Republican, George Norris of Nebraska, who worked to weaken party power at the Congressional level. After serving in Congress for many years, the opportune time finally arose. On Saint Patrick’s Day, 1910, while many of the Republican representatives were out celebrating, Norris introduced a resolution to strip Speaker Cannon of his power over the Rules Committee, which had the power to send bills to the floor of the House for debate, vote, and passage.  He noticed that many of Cannon’s loyal partisans were out celebrating and thus unable to swing the vote in defense of their party leader.

There was a problem: Cannon had the power to determine whether Norris could introduce his resolution in the first place.  Norris claimed that his resolution was privileged by the Constitution and therefore had priority over all other business.  This would mean that even the Speaker could not prevent the House from proceeding with the resolution.  Cannon had to determine whether the Norris resolution was privileged, but he knew that the entire House would vote either to uphold or to overturn his ruling.  Stalling, he allowed members of the House to debate whether the resolution was privileged, and the debacle lasted the entire night.  Shortly after midnight the sergeant at arms was ordered to take absent members into custody and bring them back to the House to produce a quorum.

The debate, which began in the middle of the afternoon on March 17th, ended with no decision at 2 P.M. on March 18th. The following day Cannon ruled that the resolution was not privileged, and therefore could not be heard. Norris and his allies were prepared for this and they appealed to the entire House. Cannon was overruled in a vote of 182 to 163, and Norris’ resolutions passed by a margin of 191 to 156.

From that point on, the Speaker of the House would never again have the powers that enabled him to represent the will of his party and push his party’s agenda through the House of Representatives.  Committee chairs became “barons” of the House, no longer subject to the control of Speakers and the majorities they represented.  This committee chair-dominated system lasted for decades, until recently, when the Speaker regained some of his influence, including the power to appoint the members of the Rules Committee.  Still, even today, Speakers are much weaker than they were in Cannon’s day.  Back then, they were called “czars.”  Today, they have the ability to determine the agenda, but not the power to influence members of the House to vote for it.

Joseph Postell is Associate Professor of Political Science at the University of Colorado-Colorado Springs. During the 2017-18 academic year he is a visiting fellow in the B. Kenneth Simon Center for Principles and Politics at The Heritage Foundation. Postell is the author of Bureaucracy in America: The Administrative State’s Challenge to Constitutional Government.  He is also the editor of Rediscovering Political Economy and Toward an American Conservatism: Constitutional Conservatism during the Progressive Era.  Follow him on Twitter @JoePostell.

Samuel Postell is a Ph.D. student at the University of Dallas.

LISTEN ON SOUNDCLOUD:

The Constitution is entirely silent on the question of committees in Congress.  It does not require the existence of any committees at all.  In fact, during the first few decades of our nation’s history, there were no permanent standing committees.  Those early congresses, many of which contained so many of the Framers of the Constitution, decided that the nation’s laws could be crafted without the assistance of committees.

In other words, we have not always had committees and we have not always needed them.  Even when we have had committees in Congress, their power, purposes, and processes have changed dramatically over time.  Committees began as weak bodies accountable to everyone in Congress, eventually became the most powerful institutions in Congress, and recently have seen their influence diminish.  Understanding the history of committees’ rise and fall helps us to see what effect they have on Congress.  While committees can and should play a role in helping Congress do its work, they often have perverse effects on how our representatives behave and the laws they enact.

Originally, Congress used “Select” or ad hoc committees to do its work.  These committees were not permanent, but merely temporary, formed only for a single purpose.  When an issue was presented to the whole House of Representatives for debate, the members would discuss it and come to agreement before sending it to a select committee.  Once the select committee wrote a bill based on the agreement reached by the entire House, it would dissolve, and the bill would go to the floor of the House for further discussion and passage.  In this process, the committees’ role was minimal, and serving on a committee did not give a member any additional power.

During the 1810s and 1820s, Congress saw the need to create permanent committees with settled jurisdiction.  These “Standing” committees, which remain in existence today, took on more authority, including the ability to write and amend legislation.  Members sought to be assigned to the committees that gave them more influence over the issues that mattered to their constituents.  For instance, members from farm districts might wish to be on agricultural committees so that they could influence legislation that affected their constituents’ interests.

These standing committees, therefore, present both advantages and problems for Congress’s functioning.  On the one hand, they allow for a more efficient legislative process and give Congress greater expertise on specific issues.  Instead of being forced to discuss every issue as a whole body, committees allow Congress to divide into smaller units to screen legislation, managing its workload.  It also allows members to specialize in certain areas through longstanding membership on committees.  On the other hand, if committees have influence over legislation, and members seek committee assignments that allow them to advance their constituents’ interests, then committees can enable special interests to gain greater influence in the legislative process.

The history of committees’ rise and fall in Congress shows these advantages and disadvantages in action.  During the middle part of the 19th Century, committees became so powerful that Woodrow Wilson famously wrote that “Congress in session is Congress on public exhibition, whilst Congress in its committee-rooms is Congress at work.”  Committees wrote most legislation, and amendments to their legislation were minimal.  Once a bill reached the floor, it would be passed in largely the same form as it was written by a committee.

After the Civil War, however, strong political parties emerged to discipline these committees.  Members like the Speaker of the House controlled the legislative process through the power of recognition, the power of appointment, and through controlling the rules committee which was in charge of sending bills to the floor for passage.  Committees and their chairs knew that they could not pass legislation if the party leadership opposed it.  The emergence of party leadership allowed the majority party to resist the influence of narrow, special interests that might dominate at the committee level.

But the party discipline of the post-Civil War period was short-lived.  In the early 20th Century, Progressives succeeded in weakening the Speaker of the House, and imposed new rules that limited party leaders’ influence over legislation.  In 1910 George Norris led the minority Democrats of the House in a revolt against Speaker Joe Cannon. Soon after the Speaker was stripped of his power to decide membership on House committees, and power became decentralized. As a result, committees once again emerged as the most powerful bodies in Congress.  They were so powerful that their chairs gained complete control of the legislative agenda. These committee chairs were called the “barons” of Congress.  Unfortunately, they refused to follow the will of Congress as a whole, and followed their own wishes instead.  Congress became out of touch with the people in the middle of the 20th Century as a result of the power and autonomy of these committees.

Today, committees are weaker than they were in the middle of the last century.  Both parties limit the tenure of their committee chairs, so that they do not become too powerful and independent of the whole Congress.  Members of Congress receive their committee assignments from their parties, and can be removed from committees if they fail to act in the party’s interest.  Committees are still very powerful, but they are now more accountable to parties than they were fifty years ago.  The late-19th Century era of party dominance has not returned, but we are no longer in the era of strong, independent committees either.

This history suggests two lessons for us today.  First, the rules regarding how committee members are chosen and what powers committees have to write legislation are highly important to how Congress works.  If committee power is unchecked by Congress as a whole, their advantages (efficiency and expertise) and disadvantages (influence of narrow interests) will be increased.  If committees are more accountable to Congress as a whole, including their party leaders, Congress will be more inefficient and have less expertise, but narrow interests will be disciplined by the national majority.  Many of the problems we see in Congress today are the result of reforms to the committee process.

Second, committees provide Congress with a double-edged sword.  They help Congress do its job, but they also threaten to subvert the legislative process, dividing Congress into many subunits, each of which advance a narrow, special interest rather than the common good.  If they are not held accountable to the whole Congress, through rules that allow party leaders to influence committees and allow members to amend legislation after it leaves committees, they can threaten the very purpose of Congress: to make laws that reflect the sense of the majority rather than the interests of the powerful.

Joseph Postell is Associate Professor of Political Science at the University of Colorado-Colorado Springs.  He is the author of Bureaucracy in America: The Administrative State’s Challenge to Constitutional Government.  He is also the editor of Rediscovering Political Economy and Toward an American Conservatism: Constitutional Conservatism during the Progressive Era.  Follow him on Twitter @JoePostell.

Samuel Postell is a Ph.D. student at the University of Dallas.

LISTEN ON SOUNDCLOUD:

Once upon a time the House of Representatives was dominated by party leaders, especially the Speaker of the House.  The Speaker had extensive power to set the agenda and extensive tools to enforce that agenda.  While every representative in the House was elected by a distinct group of constituents, the majority was united in pursuing a common goal thanks to this leadership.

The man who was most responsible for this party organization in Congress was Thomas Brackett Reed. Sometimes called “Czar Reed” because of his immense power, he was primarily responsible for the implementation of the “Reed Rules” adopted in 1890.

A Republican from Maine, Reed was Speaker of the House of Representatives from 1889-1891 and again from 1895-1899.  He was known for his quick wit in legislative debates and his understanding and deployment of parliamentary procedure.  During one legislative debate, a Democrat invoked Henry Clay’s quote that he would rather be right than be president.  Reed replied, “The gentleman needn’t worry. He will never be either.”  Henry Cabot Lodge later called Reed “the finest, most effective debater that I have ever seen or heard.”

Reed approached the rules of the House of Representatives with a simple, fundamental principle in mind.  “The best system,” as he put it, “is to have one party govern and the other party watch.”  And this system required two things: a strong, unified, cohesive set of parties, and procedures that allowed the majority to rule rather than be delayed continually by the minority.

Upon being narrowly elected Speaker over William McKinley, Reed set out to implement this system in the House.  When Reed gained the gavel, the House did almost nothing on an average day. Through the use of dilatory motions and tactics (uses of parliamentary procedure to delay the majority from getting things done) Democrats in the House were able to obstruct the Republican Party prior to Reed’s speakership.

One of these tactics was the “disappearing quorum.”  Because the House must have a quorum to conduct business, the Democrats who were in the minority would frequently object that a quorum was lacking.  In response, the House would have to call the roll, which caused considerable delay.  In addition to the delay, the rules of the House stated that if a person did not respond, they would not be counted as present.  Therefore, Democrats in the minority would simply refuse to answer the roll call, making the quorum “disappear.”

The disappearing quorum was Reed’s first target.  In January of 1890, facing a disappearing quorum over a contested election, Reed ordered the House Clerk to record Democrats not responding as present. In response, many Democrats scrambled under their desks to hide from the Clerk, and they objected vigorously to Reed’s change.  Reed ordered everyone in the room to be counted, and after several days, his decisions were upheld and the disappearing quorum was over.

Reed’s rules changes put the majority, acting through the Speaker as its leader, firmly in control of the House.  The Reed Rules limited the use of dilatory tactics, lowered quorum requirements, and put the majority in charge of considering and amending legislation.  Reed explained the rationale for these changes:

“The object of a parliamentary body is action, and not stoppage of action.  Hence, if any member or set of members undertakes to oppose the orderly progress of business…it is the right of the majority to refuse to have those motions entertained, and to cause the public business to proceed.”

The Speaker’s powers had also grown during the late 19th Century, so that the Speaker was able to use his power, combined with the majority’s power to act, to exert tremendous control over the House.  Three of the Speaker’s powers, in particular, were critical: (1) the power to appoint all members and chairs of committees, (2) the power of recognition, which allowed him to recognize members wishing to speak on the floor of the House, and (3) the chairmanship of the Rules Committee, which was nearly the only way that a bill could actually reach the floor of the House for an up-or-down vote.

At the time, many people objected to the accumulation of power in the majority, and in the majority party leadership.  They called Speakers “czars” and tyrants.  The New York Times ran headlines such as: “Bolder in his Tyranny: Heaping Fresh Indignity on the Minority: Reed Confirmed as Dictator of the House – Refusing Even to Recognize the Democrats.”  But Reed defended these changes as necessary reforms to allow the majority party, which received its powers from the people, to implement the laws that the people desired.

There were many advantages to the Reed Rules.  They promoted party accountability, which meant that the people could be confident that if they gave one party or the other a majority in the House, legislation would follow.  In addition, power stayed with Congress, rather than shifting over to the President, because the House set the legislative agenda instead of waiting for the President to suggest which bills should be passed.

Today’s Congress accomplishes a lot less than the one over which Reed presided because party leaders no longer have the powers that Reed created.  Majority party cohesion has been undermined, and the leaders of the majority party are increasingly incapable of advancing necessary reforms.  As a result, the people increasingly look to the President.  Studying Reed’s vision for the House of Representatives reveals another possibility: with stronger parties, Congress can maintain its own authority, and accomplish the business of the people more efficiently, than it does today.  Reed and his rules illustrate a potential solution for the disappearing role of Congress in contemporary American politics.

Joseph Postell is Assistant Professor of Political Science at the University of Colorado-Colorado Springs.  He is the author of the forthcoming book Bureaucracy in America: The Administrative State’s Challenge to Constitutional Government.  He is also the editor of Rediscovering Political Economy and Toward an American Conservatism: Constitutional Conservatism during the Progressive Era. Follow him on Twitter @JoePostell.

Samuel Postell is a Ph.D. student at the University of Dallas.

 

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

Click Here for the previous essay.

Click Here for the next essay.

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

 

Can Congress give away its legislative powers to other branches of government, including administrative agencies?  In the case of Field v. Clark, the Supreme Court decisively said “no,” laying down a precedent that stands against much of what our government does today.

Read more

 

From today’s standpoint, the presidential election of 1924 might appear to be an oddity or an outlier.  In 1924 the nominees of both parties ran on a conservative domestic agenda of limited government and tax cuts.  For this reason author Garland Tucker calls 1924 “The High Tide of American Conservatism.”

Read more

 

The 1824 presidential election produced the infamous “Corrupt Bargain,” in which the House of Representatives selected John Quincy Adams as President rather than Andrew Jackson, who finished first in the popular vote and in the Electoral College (but did not reach a majority in either).  More important, however, is the fact that the 1824 election led to the creation of strong political parties and the system of national nominating conventions for the two main parties.

Read more

Article II, Section 1, Clause

6:  In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office,9  the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

 This clause is the presidential succession clause, establishing procedures for dealing with the death, disability, resignation or removal of the President.   

At first the clause appears rather straightforward.  It declares that the Vice President is next in the line of succession, and that Congress can, by law, establish the remaining line of succession.  However, upon further inspection, there are a few important issues that are not clearly resolved. 

The Convention originally provided that the president of the Senate (which had not yet been determined to be the Vice President) would replace the President in the case of death, disability, resignation or removal.  In late August Gouvernor Morris suggested replacing the president of the Senate with the Chief Justice.  In early September the Convention settled on the Vice President. 

The first issue is whether the Vice President becomes the President in such cases, or whether the Vice President merely becomes the acting President.  This issue is important because if the VP merely becomes the acting President, he would be a temporary placeholder while a new President is selected.  In fact, the clause suggests that a special election for President be called in the case of the President’s death, disability, resignation or removal, rather than the automatic ascension of the VP to the office.  James Madison actually insisted upon the possibility of a special election for the President at the Convention. 

The other ambiguity of the clause had to do with the issue of the President’s “disability.”  As John Dickinson noted at the Constitutional Convention, “what is the extent of the term ‘disability’ & who is to be the judge of it?”  If the Congress can declare the President to be disabled, the Constitution’s separation of powers would be subverted by basically giving the Congress the power to choose the President.   

Both ambiguities were resolved by the Twenty-Fifth amendment, with an assist from John Tyler.  When President William Henry Harrison passed away in 1841, Tyler boldly claimed that he was not merely the VP acting as President, but was the President for the remainder of Harrison’s elected term.  By doing so he prevented the possibility that an election would be called to establish a new President (Harrison passed away very early in his term, a result of contracting pneumonia at his unusually long Inaugural Address.) 

Tyler was criticized for this action, but his precedent has stood the test of time.  The Twenty-Fifth Amendment, passed in 1967, codifies the Tyler precedent by stating that “the Vice President shall become President” if the President is removed from office, resigns, or passes away.  However, in the case of presidential disability (formally communicated to the Speaker of the House and the President pro tempore of the Senate), the Vice President merely becomes “Acting President.”

Amendment XXV also cleared up the issue of presidential disability by creating a procedure for establishing the president’s disability.  While the Tyler precedent helped ease the transition of power from President to VP in cases of death, resignation, or removal of the President, it also made VPs hesitate before assuming the presidency in the case of disability.  This is because the Tyler precedent suggested that whenever a VP assumed the presidency, he became President in full, not just Acting President.  Thus, if the President’s disability were cured, there would be a question whether the VP needed to revert back to his earlier position. 

After President Garfield was shot in 1881, for example, he was incapacitated for eighty days, while his VP hesitated to assume the office in case Garfield would recover.  The same issue occurred following Woodrow Wilson’s stroke in 1919. 

The Twenty-Fifth Amendment established a protocol for determining whether a disability existed, and how the President could be restored to power after the disability is gone.  It allows the President to declare himself disabled, and to resume the office when he formally declares that the disability has ended. 

In situations where the President is unable (or unwilling) to declare himself disabled, the Vice President, along with a majority of the cabinet, is authorized to declare the disability.  If the President disagrees with the decision of the VP and the cabinet, Congress has to resolve the disagreement. 

The succession of the chief executive of the country is, thankfully, an issue that has not caused great discord in American politics.  But the Framers were well aware that succession to the chief executive power, which was usually the throne, was an issue that had fractured societies for centuries.  As with so many other important constitutional questions, the Framers refused to allow these issues to be settled by appeals to the sword.  Rather, they established a framework for such contentious issues to be resolved by law, rather than arbitrary force or will. 

Article 1, Section 3, Clause 2
2:  Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes.  The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.

This seemingly-minor provision of the Constitution is in fact highly important.  Although we rarely pause to consider it today, deciding that one-third of the members of the Senate would be up for re-election every two years is counter-intuitive.  Why not just say that each senator has a six year term and hold elections for the entire Senate every six years?  The House of Representatives does not have staggered terms, in which half of the Members are elected each year.  Why is the Senate different? 

The most important characteristic the Senate is supposed to provide is stability, as James Madison makes clear in Federalists 62 and 63.  A huge problem during the 1780s was the mutability, or constant changing, of state laws.  The assumption of the Founders was that elections would tend to oust a relatively large percentage of incumbents in each election cycle, which would produce mutability in the laws. 

Today about 90% of incumbents are re-elected in an average election cycle.  But at the time of the Founding, incumbents were not as safe.  Joseph Story wrote in his Commentaries on the Constitution that “mutability in the public councils, arising from a rapid succession of new members” creates “serious mischiefs.  It is a well known fact in the history of the states, that every new election changes nearly or quite one half of its representatives.”  And the more new members in a legislative assembly, the more changes will be made to the laws, producing greater instability.  According to Story, “experience demonstrates, that a continual change, even of good measures, is inconsistent with every rule of prudence and every prospect of success.”      

Why is instability in the laws so bad?  Madison gives five reasons in Federalist 62, all of which are highly relevant today. 

First, instability is harmful because it undermines foreign policy.  The Senate has an important role in foreign affairs.  If the character of the Senate changes dramatically at one time, due to every member being elected, it could result in a dramatic shift in foreign policy.  This would make us seem less trustworthy to other nations in the world, and make them less agreeable to our interests. 

Second, instability in the laws “poisons the blessings of liberty itself.”  This is because it undermines the rule of law, which requires that laws be settled and known to everyone.  But if the laws are constantly changing because the legislature is constantly changing, “It will be of little avail to the people that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.”  Re-electing all senators at one time would undermine the stability in the laws necessary to preserve the rule of law. 

Third, instability in the laws gives an “unreasonable advantage…to the sagacious, the enterprising, and the moneyed few, over the industrious” of the people.  This is because changes in the laws will be known and tracked by the wealthy, who will be able to take advantage of the new laws.  “Every new regulation concerning commerce,” Madison explains, “presents a new harvest to those who can watch the change, and can trace its consequences.”  Joseph Story concurred, that “the instability of public councils gives an unreasonable advantage to the sagacious, the cunning, and the monied capitalists.” Thus, instability in the laws, caused by volatility in the Senate, allows insiders to take advantage of all the new regulations.

Fourth, instability dampens entrepreneurship.  Who will be willing to consider new business opportunities if there is a concern that the government’s laws may change tomorrow?  Economies succeed when laws are stable and not constantly changing.  Madison writes, “What prudent merchant will hazard his fortunes in any new branch of commerce, when he knows not but that his plans may be rendered unlawful before they can be executed?”  Stability in the Senate ensures that entrepreneurs can create jobs without being afraid of what government might do in the near future.

But the fifth and “most deplorable effect” of constantly changing laws, Madison writes, “is that diminution of attachment and reverence” for the law which it produces in the people.  When the laws are constantly changing, citizens’ faith in their government and in their representatives is reduced.  This is the worst effect of unstable laws produced by unstable legislatures.

The primary purpose of the Senate is to produce stability in the government and in the laws produced by the government.  This provision of the Constitution promotes stability by ensuring that only one-third of all senators are up for re-election in a given election cycle.

Posted in Analyzing the Constitution Essay Archives | 12 Comments »

Wednesday, May 12th, 2010

Federalist #11

Over the past century, as America has become more involved in world affairs, many are wondering what the Founders would have said about such a trend.  Federalist #11 gives us a glimpse of how the Founders approached questions of international politics.  What we see is that the Founders were neither isolationists nor internationalists.  Their approach was to put America’s security and interests first, and to preserve American sovereignty and self-determination, but to adopt an active role in the world in order to achieve that end.

The 11th essay is part of a series (running from Federalist 2 through 14) on preserving the Union.  The 11th essay argues that preserving the Union will make the country stronger in its commerce with foreign nations.  Alexander Hamilton, writing as Publius, explains that European nations are jealous of America, because America will eventually be strong enough to prevent Europe from colonizing the Western Hemisphere.  (We see the roots of the Monroe Doctrine already in this essay.)  The nations of Europe “look forward, to what this country is capable of becoming, with painful solicitude.”  Publius predicts that the European countries will try to weaken and undermine the fledgling country.  If the country is not unified, these attempts will be more effective.

But by remaining unified, Publius argues, America can gain the upper hand over Europe.  By gaining strength, America can make its own policy as a fully independent nation rather than follow the dictates of Europe.  With its combined strength, America could enact regulations preventing countries from trading in its markets, thus leading them to adopt a friendlier stance towards American merchants.

Furthermore, a unified America could build a dominant navy.  This navy would protect America from attack, but more importantly, it would also allow America to receive equal and fair terms of trade, throwing its naval support “into the scale of either of two contending parties” in Europe.  America could use its navy to ensure independence, demanding equal treatment as a nation equal in standing to those of Europe.  Hamilton writes that “The rights of neutrality will only be respected, when they are defended by an adequate power.  A nation, despicable by its weakness, forfeits even the privilege of being neutral.”

A weak nation becomes the servant of stronger countries, and unity is the key to building American strength.  Hamilton goes so far as to say that America “might make herself the admiration and envy of the world” by adopting the right policies.  Alternatively, if union is abandoned, other countries would be able “to prescribe the conditions of our political existence.”

Hamilton looks to the future, envisioning the eventual position of America as a strong country which serves as an example of liberty to the world.  He goes so far as to write that we should “aim at an ascendant in the system of American affairs.”  Through Union America will “be able to dictate the terms of the connection between the old and the new world.”

But in contrast to nations which use their strength for self-aggrandizement, America can use its standing in the world to protect the sovereignty and independence of nations from European interference.  The Founders were not isolationists, yet they did believe that their principles put strong limits on what they could do in international affairs.  Their principles required that military power be used to defend American sovereignty, but defending sovereignty requires respecting the sovereignty of other countries.

In this essay, we see that Hamilton and his readers were not opposed to American involvement in world affairs.  But they did not think that the purpose of foreign policy was not to go on a crusade for liberty around the world.  Rather, they sought to be involved in world affairs in order to secure their independence.

Counter intuitively, the Founders believed that the only way to be independent of the entangling affairs of other nations was to be active in the world.  Only by asserting itself on the world stage could America become strong enough to dictate its own affairs in the pursuit of its interests.  If America isolated itself, the Founders believed, it would be placing itself in a position of weakness and disadvantage.

The wisdom of the Framers is especially relevant today, when Americans are concerned about becoming the “world policeman” yet wish to avoid isolating themselves from the rest of the world.  The Founders’ principles of security and respect for the sovereignty of other nations provide a middle ground between isolationism and internationalism.

Dr. Joe Postell is Assistant Director of the Center for American Studies at the Heritage Foundation heritage.org

 

Tuesday, June 15th, 2010

In the midst of discussing questions of tax power and policy, Federalist 35 ventures into a fascinating argument about the nature of representation in a democratic republic – a very relevant question today.

The argument about representation is a response to an Anti-Federalist claim that the House of Representatives will be too small to contain citizens from all classes and occupations, and that this will prevent “a due sympathy between the representative body and its constituents.”

When we first read this, we can’t help but identify with the Anti-Federalists.  In 21st Century America there could hardly be less sympathy between our representative body and its constituents!

But upon further investigation, Hamilton argues, we will see that the Anti-Federalists’ argument is “made up of nothing but fair sounding words.”  Most significantly, he rejects the call for “an actual representation of all classes of the people by persons of each class.”

There are two related problems with the Anti-Federalists’ argument, according to Hamilton.  The first is that it misunderstands the nature of representation.  The Anti-Federalists presumed that representation should produce a legislature that is a “mirror” of the public at large.  It should look like a microcosm of the people themselves if they could assemble directly for the purpose of making laws.  Representation, in this view, is merely a practical mechanism which should reflect direct democracy as much as possible.  It should not refine public opinion.

The second but related problem with the Anti-Federalists’ argument, Hamilton claims, is that representatives are not mere guardians of a particular interest.  They are supposed to pursue the common good of the whole society.  To argue that a legislative body should contain a composite of classes and occupations equal to the society at large is to imply that a cobbler’s interest can only be pursued by a cobbler, that an attorney’s interest can only be pursued by an attorney, and so on.

Such a claim is an affront to the Founders’ principle of equality, because it assumes that it is impossible for representatives to transcend the particular interests of society and pursue the good which is common to all.  It implies that our interests are so different that they cannot be reconciled, and that the only alternative we have is a constant struggle of class against class, economic interest against economic interest.

In essence, the basic question is this: are we merely the sum of a variety of interests, or is there something higher than our parts?  Should our legislature simply be composed of a variety of classes and occupations, each looking out for itself, or should representatives be chosen who can transcend these particular interests and combine them for the good of the whole?

Hamilton and the Founders were not so naïve as to think that various economic interests will always be harmonious.  But they argued that representation would subordinate the pursuit of these particular interests to the pursuit of the general good.  The way to do this is not to give every interest a seat at the table, but to keep representatives accountable to all of their constituents.

Hamilton argues, “Is it not natural that a man who is a candidate for the favor of his people and who is dependent on the suffrages of his fellow-citizens…should take care to inform himself of their dispositions and inclinations and should be willing to allow them the proper degree of influence upon his conduct?”  Electoral accountability is the way to ensure that representatives pursue the public good, because it forces representatives to be informed of all of the interests of their constituents.

“This dependence” on the votes of the people, Hamilton concludes “and the necessity of being bound himself and his posterity by the laws to which he gives his assent…are the only strong chords of sympathy between the representatives and the government.”

In today’s politics, it often seems like representatives more often seek to satisfy particular interest groups than pursue the common good of the whole.  Some have argued that the Founders wanted it to be this way.  But in Federalist 35 Hamilton reminds us that a representative republic allows us to be governed by those who place the public good over the clash of particular interests.

Most importantly, we can only pursue the common good by abandoning the idea of separating ourselves into classes.  Dividing ourselves into separate classes overlooks the natural human equality that is the basis of our rights, and it overlooks the common interests and affections that bind us together as Americans.

Joseph Postell is the Assistant Director of the B. Kenneth Simon Center for American Studies at The Heritage Foundation.  He recently received his Ph.D. from the University of Dallas.

 

 

Tuesday, June 22nd, 2010

One can only imagine the difficulty James Madison had writing Federalist 40.  The question was this: did the Constitutional Convention overstep its authority by abolishing the Articles of Confederation in favor of a new government, rather than merely reforming the Articles?

Consider that when the Convention assembled in the summer of 1787, a government already existed in America.  Although it had failed in practice, the delegates were supposed to revise, not to abolish the Articles.  Moreover, according to the Articles, changes had to be ratified by all of the states in order to become law.

Imagine if the same thing happened today – if the states established a convention to revise the Constitution, but which instead called for scrapping the entire document and building a new one from scratch…and which created entirely new procedures for ratifying those changes!

Indeed, there were difficult legal questions regarding what the Constitutional Convention did.

Madison’s response to these issues seeks to answer two questions: “whether the Convention were authorized to frame and propose this mixed Constitution,” and “how far considerations of duty…could have supplied any defect of regular authority.”

In answering the first question, Madison defends the legality of the Convention’s recommendations.  In the first place, Madison replies, the delegates’ duty was to establish a government adequate to its purposes as well as to revise the Articles.  But if these two objectives were incompatible, “Which was the more important, which the less important part?”  The objective of forming an adequate government, he implies, trumps the delegates’ assignment to revise the Articles.

Furthermore, Madison argues, how do we know when we have crossed the line from revising a form of government to abolishing it?  Can we “mark the boundary” between “alterations and further provisions” and “transmutation of the government”?  At what point does altering the government become destroying it?

Because the Constitution preserved the essentials of the Articles of Confederation, Madison alleges, the delegates simply revised the Articles rather than abolish them.  Under the Constitution “the states are regarded as distinct and independent sovereigns.”  Furthermore, “One branch of the new government [the Senate] is to be appointed by these [State] legislatures.”  Finally, “in the new government as in the old, the general powers are limited, and…the states in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction.”

Madison admits that the Convention departed from the Articles in one respect: the amendment process.  However, Madison argues that this was good, because of “the absurdity of subjecting the fate of 12 states, to the perverseness or corruption of a thirteenth.”

Having answered the first question, Madison asks the second question – whether the delegates’ duty to their country could compensate for any defect of authority.

In response, Madison reminds his readers that the Convention merely proposed a Constitution for the people to approve or reject.  Without ratification, the Convention’s plan was “of no more consequence than the paper on which it was written.”

The Constitution was ratified by the people, not by the Convention.  How could the people lack the legal authority to change their Constitution?  The delegates, Madison continues, “must have reflected, that in all great changes of established governments, forms ought to give way to substance; that a rigid adherence” to forms “would render nominal and nugatory, the transcendent and precious right of the people to ‘abolish or alter their governments as to them shall seem most likely to effect their safety and happiness.’”

The lessons of Federalist 40 are important even today.  Madison explains that in a free society the people are the masters of the government, rather than vice versa.  In a situation where the government cannot adequately pursue the good of the people, it is the right of the people to revise the forms of government to ensure that the substance of government is in accordance with first principles.

The Founders, Madison explains, did not intend to create a rigid government, forever impervious to change.  Such a government would deny the people the basic right to govern themselves.  Instead, the Founders left us an amendment process because they foresaw the need for future changes.

However, Madison also cautions us against changing “the essentials” of the Constitution: our federal system, the separation of powers, and the limited powers of the national government.  Though we should always determine our constitutional forms, we have the responsibility to uphold the principles of the Declaration of Independence: that government exists to protect natural rights and must be limited in order to do so.

Joseph Postell is the Assistant Director of the B. Kenneth Simon Center for American Studies at The Heritage Foundation.  He recently received his Ph.D. from the University of Dallas.