Guest Essayist: Kyle A. Scott

The Seventeenth Amendment was passed by Congress May 13, 1912 and ratified on April 8, 1913. Secretary of State William Jennings Bryan certified the ratification on May 31, 1913. Once the Amendment was added to the U.S. Constitution, citizens had the right to directly cast ballots for their state’s two senators. The Amendment changed Article I, Section 3, clauses 1 and 3 of the Constitution that had previously stipulated senators were to be elected by state legislatures. By allowing for the direct election of senators, a barrier was removed between the people and the government that moved the U.S. closer to democracy and away from a republican form of government.

At the time the U.S. Constitution was being drafted, there was a clear apprehension toward monarchy but also an aversion toward democracy. The founders were suspicious of the capricious tendencies of the majority and considered democracy to be mob rule. With direct elections of members in the House of Representatives every two years, representatives could be swept into and out of office with great efficiency and would therefore bow to the will of the majority. If some interest that ran counter to the common good, but nonetheless gained the favor of the majority, the House would be ill-incentivized to look after the common good. The Senate, as it was not directly elected by the people, could be a check on the passions of the majority. In Federalist Paper #63 Publius wrote, “an institution may be sometimes necessary as a defense to the people against their own temporary errors and delusions.”

Prior to the formation of the United States it was assumed that republics could only be small in scale. James Madison refuted such luminaries as Baron de Montesquieu in offering a solution to the problem of scale by introducing multiple layers of checks and balances into a federal regime that included a check on democratic rule at the national level. With the senate serving as a bulwark against the threat of tyranny by the majority, every viable interest could be given representation in the national debate. Now that this bulwark has been replaced with democratic elections, the president is now the only elected official at the national level shielded—at least somewhat—from public opinion as the president is elected not by the people but through the Electoral College.

At the time the Constitution was being drafted, some in Philadelphia believed there was a strong push for states’ rights. The Articles of Confederation provided a weak central government and the new states were reluctant to give up their power to a central body as they had just thrown off the yoke of tyranny hoisted upon them by a centralized governing body. The election of senators by state legislatures was one way to assuage those concerns. In Federalist Paper #62, Publius writes, “Among the various modes which might have been devised for constituting this branch of the government, that which has been proposed by the convention is probably the most congenial to public opinion. It is recommended by the double advantage of favoring a select appointment and of giving to the State governments such an agency in the formation of the federal government.” It was thought that the state’s interests would be represented in the Senate and popular interests would be represented in the House. With these sets of interests competing, the popular good would be represented in any bill that would be able to make its way through both chambers of congress. This was the very core of the theory of our constitutional government as envisioned and understood by James Madison and Alexander Hamilton. Both Madison and Hamilton argued that ambition should be made to counteract ambition and through the competition of ambitions the common good would be realized. It is only in republican government that the negative effects of faction can be mitigated and the positive aspects funneled into the realization of the common good. “The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater the number of citizens, and greater sphere of country, over which the latter may be extended.” (Federalist Paper #10).

The risks associated with democratization threaten the balance and principles republican regimes aspire to. Democracy aspires to nothing but its own will. Direct democracy offers too few safeguards against whimsy and caprice. In democracies, individuals are left to put their interests above all others and be guided by little more than immediate need as long-term planning is disincentivized.

Understanding the ramifications of further democratization is a timely topic as it is likely to be widely discussed in popular media in the upcoming presidential election. We see in every election a push for eliminating the Electoral College. With every passing election the cries for reform grow louder. Those who value republican principles should equip themselves to defend republican principles and institutions with evidence and theory and not rely on self-interest, cliché, or partisan allegiance. If interested, reread the Federalist Papers, but also, go back and read the press clippings from 1912-1913 and look for parallels to today. What you will find is a sense of connectedness with previous eras that will let the reader know these are permanent questions worth taking seriously.

Kyle Scott, PhD, MBA, currently works in higher education administration and has taught American politics, Constitutional Law, and political theory for more than a decade at the university level. He is the author of five books and more than a dozen peer-reviewed articles. His most recent book is The Federalist Papers: A Reader’s Guide. Kyle can be contacted at kyle.a.scott@hotmail.com.

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Guest Essayist: Kyle A. Scott

Notwithstanding the controversy over the causes of the U.S. Civil War, we do know that one of the outcomes was ending slavery through the Thirteenth Amendment. Congress passed the proposed Thirteenth Amendment on January 31, 1865 and it was subsequently ratified on December 6, 1865 by three-fourths of the state legislatures. Upon its ratification, the Thirteenth Amendment made slavery unconstitutional.

Unlike amendments before it, this amendment deserves special consideration due to the unconventional proposal and ratification process.

The proposed amendment passed the Senate on April 8, 1864 and the House on January 31, 1865 with President Abraham Lincoln approving the Joint Resolution to submit the proposed amendment to the states on February 1, 1865. But, it was not until April 9, 1865 that the U.S. Civil War officially ended on the steps of the Appomattox Courthouse when Robert E. Lee surrendered the Confederate Army to Ulysses S. Grant. This means that all congressional action up to this point took place without the consent of any state in the Confederacy taking part as those states were not represented in congress.

However, once the war ended, the success of the amendment required that some of the former Confederate states ratify the amendment in order to meet the constitutionally mandated minimum proportion of states. Article V of the Constitution requires three-fourths of state legislatures to ratify a proposed amendment before it can become part of the Constitution. There were only twenty-five Union and border states which meant at least two states from the eleven that comprised the Confederacy had to ratify.

The effort to get states to ratify was led by Andrew Johnson who assumed the presidency after Lincoln was assassinated on April 15, 1865. There was a total of thirty-six states which meant at least twenty-seven of the state legislatures had to ratify. It was not guaranteed that all the states that remained in the Union would ratify. For instance, New Jersey, Delaware and Kentucky all initially rejected the amendment.

This is where things get complicated. When Johnson assumed the presidency in April, he ordered his generals to summon new conventions in the Southern states that would be forced to revise constitutions and elect new state legislators before being admitted back into the Union. This was essentially reform through military injunction thus casting doubt on the sovereignty of the states and the free will of the people.

Further complicating the issue of ratification was the Thirty-ninth Congress which refused the inclusion of all the Southern states except Tennessee. So, while the Congress did not recognize the former Confederate states as states—except Tennessee—all the states were considered legal for purposes of ratification as determined by Secretary of State William Seward. Thus, we are presented with a constitutional predicament in which an amendment is ratified by states recognized by the executive branch but not by the legislative branch.

No resolution was formerly adopted, nor reconciliation made, that could bring clarity to this constitutional crisis. Reconstruction continued, and the Thirteenth Amendment was added to the Constitution along with the Fourteenth and Fifteenth Amendments—collectively known as the Reconstruction Amendments.

The ratification of the Reconstruction Amendments is most aptly characterized as a Second Founding. How the Amendments were ratified occurred outside any reasonable interpretation of Article V or republican principles of representation. Imagine the following scenario. Armed guards move into 51% of American voters’ homes and force them to vote for Candidate A in the next presidential election. If the homeowners do not agree, the armed guards stay. If homeowners agree, and vote for Candidate A, the armed guards leave. This is what occurred during Reconstruction in the South as a state’s inclusion in Congress, and the removal of Union troops, was predicated upon that state’s acquiescence to the demands of the Union which included ratifying the Thirteenth, Fourteenth and Fifteenth Amendments.

Because the amendments were passed in an extra-constitutional manner, we cannot say that they were a continuation of what was laid out in Philadelphia several decades before. This creates an ethical dilemma for historians and legal scholars to consider. Do the ends justify the means or should the letter of the law be subservient to the higher good? To state it more simply: Is ending slavery worth violating the Constitution? Or, should have slavery remained legal until an amendment could be ratified in a manner consistent with Article V and generally accepted principles of representation?

These questions are meant to be hard and they will not be resolved here. What I do propose is that in 1865 the United States decided that the pursuit of the higher good justified a violation of accepted procedures and those who accept the validity of the Reconstruction Amendments today must, at least tacitly, endorse the same.

Kyle Scott, PhD, MBA, currently works in higher education administration and has taught American politics, Constitutional Law, and political theory for more than a decade at the university level. He is the author of five books and more than a dozen peer-reviewed articles. His most recent book is The Federalist Papers: A Reader’s Guide. Kyle can be contacted at kyle.a.scott@hotmail.com.

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Last of the thirteen original states to ratify the U.S. Constitution, Rhode Island was admitted to the Union May 29, 1790. The Rhode Island State Constitution in current use was adopted in 1986.

Rhode Island is known to school children outside of the Ocean State only for its size. One should not be deceived by its diminutive size and think it inconsequential in the nation’s history. Space does not permit a complete history of the state, but an overview of its involvement during the ratification of the U.S. Constitution is enough to justify it as being a power player in our nation’s politics.

Around 1781 Rhode Island began carrying the moniker of “Rogue Island” for its opposition to commonly accepted measures in the Second Continental Congress. Under the Articles of Confederation unanimity of the former colonies was required for the Confederation to take action. Rhode Island was known for casting the lone dissenting vote in many circumstances that prevented action from being taken.

Although, as the first colony to renounce allegiance to King George III on May 4, 1776—two months before the Declaration of Independence was adopted by the Continental Congress—the other former colonies should not have been surprised that a state willing to lead the way in throwing off the yoke of its colonial oppressors would be willing to go against popular sentiment during and after the fight for independence.

The rebellious streak was put on full display as it once again lived up to its moniker as Rogue Island when it was the only state to boycott the Philadelphia Convention in the summer of 1787. The product of that convention was the U.S. Constitution that still governs us today. Rhode Island was so opposed to overturning the Articles of Confederation, or any move that may threaten state sovereignty, that it simply refused to take part. However, Rhode Island had—at least somewhat—overvalued its importance to the process.

Article VII of the U.S. Constitution stipulates that only 9 out of 13 states were required for ratification. On June 21, 1788 New Hampshire became the ninth state to ratify thus putting the new constitution into effect. However, three of the largest and most powerful states—Virginia, New York and North Carolina—had not yet ratified which meant the nation was still not solidified. But with Virginia ratifying on June 25 and New York on July 26 of 1788, the first Congress convened on March 4, 1789 nearly seven months before North Carolina ratified and more than a year before tiny Rhode Island would be the final state to ratify. Once a Bill of Rights was proposed it would not be long before North Carolina would agree to enter the Union as its primary opposition was based on a lack of clearly defined rights in the Constitution. Rhode Island, on the other hand, had a broad base of opposition.

Rhode Island was not motivated by a single group or ideology. It wanted guarantees that it would have control over its own monetary policy. It had pursued inflationary policy during and after the war that entailed printing money to pay off its war debts. It feared that under a national structure its currency would be devalued and the state would be saddled with excessive war debts thus hobbling its economic and social well-being.

The fear of losing control over its monetary policy was consistent with its general concern for the growth of national power. Furthermore, the large Quaker population was appalled by the allowance of the importation of slaves within the new Constitution, even if it was for a limited time.

Eventually, however, the commercial interests of the state won out when the Senate passed a bill prohibiting trade between the member states of the Union and Rhode Island. The mercantilists in Providence and Newport were able to sustain a winning coalition in May of 1790 to ratify the constitution by a narrow margin of 34-32. This was its twelfth attempt at ratification with the first attempt losing soundly by a vote of 10-1.

By the time Rhode Island had ratified, the Bill of Rights had already been voted out of Congress and sent to the states for ratification with nine states ratifying before Rhode Island was seated in the House of Representatives. Therefore, Rhode Island’s lists of eighteen human rights and twenty-one suggested amendments cannot be said to have had a profound effect over our understanding of the original Bill of Rights even though it was not until the eleventh state, Virginia, on December 15, 1791, ratified that the Bill of Rights became part of the Constitution.

What the history of Rhode Island reminds us is that the states that formed the Union understood themselves to be acting on behalf of their citizens and the state government. It was thirteen individual states who formed the Union and not the people of those states. The Union did not transform the people into a single-collective, but rather the people were citizens of their states and the states acted on behalf of their citizens at the national forum. This may seem radical in light of how most people view themselves today, but at the time they would have thought our modern construction as radical and a severe departure from the Spirit of 1776 that rebelled against a distant, centralized governing body that limited self-rule. The Spirit of 1776 also saw the former colonies declaring themselves independent individually rather than as a collective. The actions of the colonies preceded the collective Declaration of Independence. A righteous act of independence had begun with Rhode Island and the nation solidified only when it became the last of the original thirteen to join the union.

Kyle Scott, PhD, MBA serves on the Board of Trustees for the Lone Star College System and teaches political science at the University of Houston and is an affiliated scholar with the Baylor College of Medicine’s Center for Health Policy and Medical Ethics. Kyle has authored over 70 op-eds, dozens of academic articles and five books, the most recent of which is The Limits of Politics: Making the Case for Literature in Political Analysis. He can be reached at kyle.a.scott@hotmail.com or on Twitter: @kanthonyscott 

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Thomas Jefferson, and all those who agree with and find inspiration in the Declaration of Independence, support secession. There is no denying that the Declaration was a statement of secession “When in the course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another…”. Thomas Jefferson stayed true to this point when writing in the Kentucky Resolution (1798) that “the several states who formed that instrument (the U.S. Constitution), being sovereign and independent, have the unquestionable right to judge of its infraction…” Secession is an inherent right in governing bodies and the states themselves ought to have sovereignty over the decision to secede.

The Declaration of Independence was a solidification of prior state action rather than a moment of instigation. Beginning in 1775 the former colonies began declaring themselves states rather than colonies and writing their own constitutions with New Hampshire becoming the first in January 1776 followed by Virginia, South Carolina, New Jersey. Rhode Island renounced its allegiance to Britain and revised its charter a full two months before the Declaration of Independence was adopted. These independent states joined together in an act of secession as they were seeking to dissolve the political bands that tied them to Great Britain. Each colony that fought against the crown was a secessionist regime. Secession is a central part of this nation’s founding sown at the time of its founding.

At the time of the nation’s founding the states considered themselves to be sovereign entities that could compact together to address common needs, and it could reverse that decision if the common governing body no longer fulfilled its duty. Sovereignty was not relinquished. This is not only documented, but procedurally it is reinforced in that each state needed to ratify the primary governing documents before those documents took effect within that state’s legal jurisdiction. For instance, the U.S. Constitution was drafted by a committee in Philadelphia, it was then sent to the states to ratify individually. And while the Constitution only required nine of the thirteen states to be put into effect, only those states that had ratified it would be part of the Union. Those who had not ratified could not take part in the new government. This is a continuation of the political practice started with the Articles of Confederation in which the Second Continental Congress drafted and approved the Articles but then sent them to each state for independent ratification. The same is true of the Declaration of Independence—no state was forced against its will to fight the British once a majority of states accepted the Declaration; rather, it required unanimous consent from each state in Congress.

Secessionist thought is often commingled with the U.S. Civil War, but one of the first moves toward secession after the formation of the United States was undertaken by the New England Federalist Party between 1814-1815 in reaction to the War of 1812 at what is known as the Hartford Convention. Lest we forget that Tennessee was formed through secession from North Carolina, Kentucky from Virginia, and Maine from Massachusetts. Secession is neither uniquely American with Sweden seceding from Norway, Belgium from the Dutch, and Eritrea from Ethiopia to name only a few. But for most Americans our understanding of secession is clouded by the war between the states and the subsequent Supreme Court decision of Texas v White (1869) that declared secession unconstitutional despite historical and normative claims to the contrary.

Almost without exception a discussion of secession introduces the issue of slavery. But that is a product of an undisciplined mind that cannot separate two mutually exclusive ideas rather than a fact of reality. Secession is about self-determination; it is the ultimate weapon against tyrannical government. As Jefferson writes, “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.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,–That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government…” A people unable to dissolve political bonds are a people who no longer have the ability to preserve the rights endowed to them by their Creator but have instead given all authority to some distant governing body. This would be antithetical to every precedent-setting document one could read at the time of the founding. To say that states gave up their right to secede when they ratified the Constitution is to not understand the founders as they understood themselves. A people committed to freedom and liberty would not so willingly give up the very thing that allowed them to be free in the first place.

Kyle Scott, PhD, MBA serves on the Board of Trustees for the Lone Star College System and teaches political science at the University of Houston and is an affiliated scholar with the Baylor College of Medicine’s Center for Health Policy and Medical Ethics. Kyle has authored over 70 op-eds, dozens of academic articles and five books, the most recent of which is The Limits of Politics: Making the Case for Literature in Political Analysis. He can be reached at kyle.a.scott@hotmail.com or on Twitter: @kanthonyscott 

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The debate over the First and Second Banks of the United States expose the difficulties of constitutional interpretation. Additionally, the debate surrounding the Second Bank of the United States is a study of how principles can give way to political expediency. The following essay will provide a brief overview the Banks, discuss the constitutional debate surrounding the Banks, and then discuss the Second Bank as it relates to the presidential election of 1816 in which James Monroe succeeded James Madison by defeating Rufus King.

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George Washington’s Proclamation of Neutrality, Thomas Jefferson’s Louisiana Purchase, Abraham Lincoln’s Emancipation Proclamation, invasion of the South, and suspension of habeas corpus, Harry S. Truman’s railroad seizures, and the growth of militarism domestically and internationally by George W. Bush and Barack H. Obama are all examples of executive overreach; examples of when the President used powers not given to him by the Constitution or exercised by his predecessor. Executive overreach is neither unique to the American system nor new to our time.  Efforts to limit executive control, whether it be an elected president, entrenched oligarchy, or hereditary monarchy, have defined Western political thought and reform since Magna Carta was signed by King John of England in 1215 at Runnymede. The greatest and most enduring thinkers—John Locke, Baron de Montesquieu, Jean Jacques Rousseau—that influenced the political revolutions of the 18th Century and still define the contours of our current political paradigm were concerned with restraining executive authority through the dispersion of political authority. In 1776 the U.S. declared itself independent and proceeded to rid itself of an executive and parliament that had usurped their authority. But no sooner did America win its independence did it seek to reconcentrate power into a centralized governing structure by ridding itself of the Articles of Confederation and ratifying the U.S. Constitution. The responsibility of an enlightened and engaged citizenry is to thwart all efforts of overreach.

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Guest Essayist: Kyle Scott, Professor of Constitutional Law, University of Houston

The Northwest Ordinance–adopted in 1787 by the Congress of the Confederation and passed again by Congress in 1789 after the ratification of the U.S. Constitution to govern the Northwest Territories which included modern day Ohio, Indiana, Illinois, Michigan, and Wisconsin–is undeniably an ordinance that inherits and extends the common law tradition. This means property rights take center stage and due process of law is established as a means of protecting property rights and the rights constituent to property such as life and liberty. Read more

Guest Essayist: Kyle Scott, Professor of Constitutional Law, University of Houston

Aristotle studied under Plato and tutored Alexander the Great. If only because of his pedigree he should be read and understood by anyone who is interested in politics. But those who want to understand politics in general, and American politics in particular, would do well to study the works of Aristotle for the insight they provide on human nature and the nature of politics.

According to Aristotle, a person can be truly human only within a community. Aristotle wrote in the Politics that any man who exists outside of a community is either a beast or a god (Politics 1253a2, 1253a25; see also NE 1097b10). For man is by nature a political animal which means if he is to act according to his nature he must live among others. Read more

Guest Essayist: Professor Kyle Scott, Professor of American Politics and Constitutional Law, Duke University

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Amendment VI:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of counsel for his defence.

With the Constitution in general, and the Bill of Rights in particular, we speak of liberty. There can be no doubt that the Constitution and the Bill of Rights are liberty preserving and any act against liberty taken by the government runs against the true intention of the documents. But in the section of the 6th Amendment that guarantees the right to have the assistance of counsel we see equality creep in to the picture as well. The basic assumption is that if one is to receive a proper hearing one must have someone represent them with legal expertise. A trial by any other means would leave the one unrepresented by legal counsel at a competitive disadvantage. In that case, the matter would be decided not according to the law but by the superiority of the argument and legal expertise. The consequence would be that someone’s liberty could be deprived in a way inconsistent with the law and its application to the facts thus depriving the defendant of due process. This part of the amendment operates under the assumption that to have liberty, each citizen must have equal protection under the law. When the law is applied unfairly, or intentionally advantages some over others, liberty is sacrificed. This has nothing to do with equality of outcome or equality of opportunity as those matters are commonly discussed in contemporary policy debates. Rather, it simply states that the law must be the final determinant of when someone’s liberty may be restricted, not chance or caprice.

The rule of law is commonly understood to be something of an unbiased arbiter. It should not prejudice or hold bias against anyone for reasons unrelated to the relevant facts. The law also makes outcomes predictable. If the law is applied the same in all cases then I should know what to expect in all cases. The law produces a certain amount of certainty when it is known and unbiased. In a nation governed by the rule of law, I know what to expect from the law and from the government. Under a government without a known and settled law, only fear reigns with any predictability. Our futures and our liberty become uncertain and entirely dependent upon the will and whim of those in charge without equal protection under the law. This is why the law must be applied equally for equality under the law implies that those who make and enforce the law are as equally restricted by it as I am.

This holds true for relations between individuals as well. If the person I am dealing with has more liberty under the law than I do then I am at a disadvantage, one imposed by the state. For instance, if the government protects the right of individuals to make private contracts, and will also enforce the contracts if one side breaches it, then I can enter into an agreement knowing that the person will live up to their end of the bargain and if they don’t I have recourse through the government. But, if the government only made it so I was bound by the contract, and not my business associate, then he could exploit this inequality in the law to his advantage. Under such a scenario there would be no reason to have contracts and business relationships would deteriorate. Even in a free market society, where one is allowed to succeed or fail in the market on their own, the government must uphold the rule of law equally so that it is our liberty that decides our success and failure and not the government. If the law is unequally applied then it is not our liberty that is deciding the outcome, but those who make the law determine our fate, thus making it not a free market at all.

And this brings us back to the court room. I am not an attorney, nor did I sleep at a Holiday Inn last night. So if you pitted me against a successful trial lawyer I would get creamed. The only chance I would have of winning is if I had counsel. The right to counsel guaranteed by the 6th Amendment makes sure that I cannot be denied counsel by the other party or by the government. If the government really wanted to send me to jail, regardless of whether I was really guilty, all it would have to do is say I wasn’t allowed to have an attorney represent me. Think of what would happen if the government could use its power to deny me the one thing that would help guarantee a fair trial. The government could have somebody with legal specialization represent its interests but I would not have the same right. This would be unequal protection under the law and my fate would not be determined by the law but by its unequal application. Equality, the kind of which I write, is an essential component to the maintenance of liberty.

Kyle Scott, PhD, teaches American politics and constitutional law at Duke University. He has published three books and dozens of articles on issues ranging from political parties to Plato. His commentary on contemporary politics has appeared in Forbes, Reuters.com, Christian Science Monitor, Foxnews.com, and dozens of local outlets including the Philadelphia Inquirer and Baltimore Sun. He is a frequent contributor to blogcritics.org and maintains his own blog at kyleascott.wordpress.com

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March 29, 2012

Essay #29

Guest Essayist: Professor Kyle Scott, Professor of American Politics and Constitutional Law, Duke University

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Amendment V:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The 5th Amendment contains numerous, seemingly unconnected, components. However, there is a common theme. The common theme that runs throughout the amendment is liberty; it connects each of the components. The manner in which the amendment is constructed reflects the idea that the burden of proof falls on the government. In order to take someone’s life, liberty or property the government must adhere to a strict set of standards in trying to prove guilt or cause. Perhaps the most important of these is the protection against self-incrimination. The 5th Amendment states that an individual cannot be forced to testify against himself. The provision became well-known in popular culture when accused mobsters would commonly take the fifth when they were put on trial. But the provision has been around since at least the sixteenth century when torture and forced testimony was common practice.

In order to get a confession, or to get someone to testify against himself, officers of the law would torture someone or hold their family or property in custody until they signed a confession or took a pledge that confirmed their guilt. Of course, banning such practices was not enough as the practices were done in secret when they were outlawed, or outsourced to unofficial officers of the state where judges or barristers could plausibly deny the existence of such practices. The only way to make sure such reprehensible practices did not occur was to exempt people from being a witness against themselves. If a person could not be asked to witness against himself it wouldn’t do much good to torture him.

The provision increases the burden of proof on the government in criminal cases. A person cannot, during trial, be asked if they committed a crime. The government must prove the case against them. This may seem onerous and unnecessary but we should be quick to remember that the government can be as prone to misuses of power as individuals. This is but one additional check to make sure the government does not use its monopoly on force outside the bounds of law in a way that threatens the life, liberty, or property of individuals. Such a provision also bestows an increased level of legitimacy over judicial proceedings.

This provision, and perhaps this amendment moreso than any other, shows at what great lengths the First Congress went through to protect individual liberty. This provision shows that the government exists for the preservation of individual liberty, that individual liberty precedes government; and thus by extension, the primary purpose of government is to protect us, not to enhance itself or extend authority over us beyond what we grant it.

The mark of a good government, and of a people truly committed to the idea of liberty, is the degree to which they abide by procedures that make the deprivation of life, liberty, or property difficult. This must be true when we sympathize with the accused just as much as when find the accused to hold positions and values contrary to our own.

Kyle Scott, PhD, teaches American politics and constitutional law at Duke University. He has published three books and dozens of articles on issues ranging from political parties to Plato. His commentary on contemporary politics has appeared in Forbes, Reuters.com, Christian Science Monitor, Foxnews.com, Washington Times and dozens of local outlets including the Philadelphia Inquirer and Baltimore Sun.

March 16, 2012 

Essay #20 

Guest Essayist: Kyle Scott, Political Science Department and Honors College Professor at the University of Houston

Article III, Section 2, Clause 3

3: The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

There are two current political issues whose resolution hinges on the interpretation of this clause: plea bargaining and the treatment of suspected terrorists.

Plea bargaining is the manner in which criminal cases are resolved without the benefit of trial. Rather than facing the full charge or the maximum penalty, the accused can plead guilty to a lesser charge in exchange for a lighter penalty. These agreements are reached without the benefit of a bench or jury trial. Plea bargains are quite common, and in fact have become more common than trials, due to the heavy workload of the courts. Courts could not function without relying on plea bargains and therefore plea bargains are often encouraged by prosecutors and judges. So while the need for plea bargains is real, the lingering question remains as to whether they are Constitutional according to Article III, Section 1, Clause 3. The act of plea bargaining has not been found to be unconstitutional, but that does not mean we should accept the practice.

No defendant can be coerced into a plea deal and therefore remains able to choose a trial and reject a plea deal. This supports the constitutionality of the plea bargain; but my reservations over the practice still remain. I begin with the assumption that the Founders established a Constitution aimed at establishing justice and that the institutions and practices in the Constitution can lead to justice if followed as the Founders had intended. Therefore, if read literally, the Founders can be said to have believed, as consistent with the excerpt under consideration, that the best pathway to justice is through a jury trial in criminal cases. If this is so, then we are left to wonder whether plea bargains abandon the Founders’ goal of justice or whether plea bargains abandon those institutions and processes the Founders thought would lead us to justice. In accepting plea bargains as a valid way to resolve criminal cases, have we replaced our justice system with a mere legal system?

No one will doubt that the eradication of terrorists is necessary and that playing by the rules severely hamstrings America’s ability to protect itself. For this reason we have found it necessary to not offer jury trials to many of those in custody. But the same questions that were raised above can be raised here: If the Constitution sets up a system that can achieve justice when literally followed then does abandoning that process compromise the search for a just resolution? Or, should we say, that abandoning this part of the Constitution in our fight against terrorism is the only means to achieve justice?

The two most popular responses are that those we have been arrested are enemy combatants and should therefore be dealt with in a military setting or that the rights guaranteed in the Constitution only apply to citizens. The first of these is the most defensible although it is still in question who determines if someone is an enemy combatant, how the term is defined, and if the who and how are done through means consistent with Constitutional principles. The second is more difficult to defend simply because in Article III, Section 2 the Constitution gives jurisdiction to federal courts in cases involving a state, or the citizens thereof, and “foreign states, citizens, or subjects.”

So now it is time to disappoint the reader I am afraid. I have taken this clause of the Constitution as far as I am capable and thus do not have a definitive answer to the questions I have raised. I do lean towards particular answers, but because I cannot be for certain what the Founders would have said on the matters, I must remain humble and not express those inclinations until more searching has been done. But, Article III, Section 3 should provide additional insight.

My intention for this essay was to show how this clause applies to current political events and uncover the fundamental questions that must be answered in order to reach some resolution. So let me repeat the most fundamental questions I see for this clause: If the Constitution sets up a system that can achieve justice when literally followed then does abandoning that system compromise the search for justice? Or, should we say, that abandoning this part of the Constitution in our fight against terrorism or overworked courts is the only means by which we can achieve justice? And, if we answer in the affirmative to the second question, must we say that the Constitution, if strictly followed, cannot lead us to justice in all situations?

Raising and pursuing these fundamental questions in a slow, deliberate manner within the confines of care, reason, and logic—without employing clichés or rhetoric—is the true intention of the Founders. Our Founders were deep and original thinkers who understood the fundamental questions and the importance of asking them. Their search for truth was more important to them than the personal attachment they felt to a particular position. We too should be so brave!

Kyle Scott is a lecturer in the Department of Political Science and Honors College at the University of Houston. His third book, Federalism, is due out March 17th. Dr. Scott has written on the Federalist Papers for Constituting America and proudly serves as a member of its Constitutional Advisory Board. He can be reached at kascott@uh.edu. Or, you can follow his blog at www.redroom.com/member/kylescott

Guest Essayist: Kyle Scott, Political Science Department and Honors College Professor at the University of Houston

Article III, Section 1

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Building on the political theory of John Locke and Baron de Montesquieu, the Founders established an independent judiciary, more specifically, a Supreme Court. While the Constitution only establishes a Supreme Court, it was not long after the ratification of the Constitution that the first Congress passed the Judiciary Act of 1789 which established the U.S. Federal Judiciary. The act created a Supreme Court in which there were five associate justices and one chief justice. The first chief justice was John Jay—one of the three authors of the Federalist Papers.

The act also established circuit courts and district courts. The district courts had original jurisdiction while the circuit courts had appellate jurisdiction. The first Supreme Court justices had to ‘ride circuit’, meaning they served on the Supreme Court and the circuit courts. This practice ended with the passage of the Judiciary Act of 1891.

The number of judges, justices, and courts has varied over the years—usually expanded at a time of one party dominance when the party in power looks to increase its influence within the judiciary by expanding the number of available slots to which they can appoint judges of a similar ideological disposition. This is but one consequence of being vague, but the Founders had their reasons for not being overly specific about the structure of the judiciary.

First, the judiciary—while important for maintaining the rule of law and a system of checks and balances—was thought peripheral to the political process. This is not surprising given that the Founders’ intellectual influences—particularly Locke and Montesquieu—treated the judicial branch in a similar manner. Now they recognized, particularly Hamilton who expanded Lord Coke’s theory of judicial oversight, the importance of the judiciary, but it wasn’t seen in the same esteem as the other two branches. Even after the ratification of the Constitution the Supreme Court was thought less important as evidenced by the fact that Washington had a tough time filling all the seats as most would-be appointees chose to stay judges or legislators in their home state where they thought more important work was being done. Let us not forget that the Supreme Court’s first chambers were in the basement of the Merchant Exchange Building in New York City—then the capital of the U.S.

Second, the justices recognized that a growing nation would need a court to grow with it. This is not the same as saying we need a living Constitution, or that the Founders favored a loose construction of the Constitution, it simply means that the Founders understood the workload of the early courts would be relatively light given the length of time it takes to work through the appeals process from the state level up, and the fact that there were very few national laws meaning most cases of original jurisdiction would be heard at the state level as disputes over laws were more likely to occur over state laws.

Third, they knew the inherent dangers of an appointed judiciary. Appointing judges was preferable to electing them in order to insulate them from the effects of politics and public pressure, but it also put them in an advantageous position to control the path of the country relative to Congress and the Executive who had to be elected and had shorter tenures. Therefore, the size and structure of the judiciary was made dependent upon Congress as one way to curb the power of the judiciary.

What we should remember is that when the Founders were vague they were intentionally so, and when they were specific they were intentionally so. And the same goes for silence—such as with judicial review which is nowhere found in the Constitution except through the most creative jurisprudence. This flies in the face of those who would argue for a loose—or broad—interpretation of the Constitution. To assume otherwise is to deny the Founders wrote intentionally or were aware of what they were writing. While they could not foresee all issues or problems, they chose their words carefully and we should treat them as though they did.

Kyle Scott is a lecturer in the Department of Political Science and Honors College at the University of Houston. His third book, Federalism, is due out March 17th. Dr. Scott has written on the Federalist Papers for Constituting America and proudly serves as a member of its Constitutional Advisory Board. He can be reached at kascott@uh.edu. Or, you can follow his blog at www.redroom.com/member/kylescott

Guest Essayist: Kyle Scott, Political Science Department and Honors College Professor at the University of Houston

Article 1, Section 9, Clause 8

8:  No Title of Nobility shall be granted by the United States:  And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

Following Section 8, in which the powers of Congress are enumerated, Section 9 enumerates the restrictions that the Constitution places on Congress. The final clause of Section 9 states that Congress cannot grant titles of nobility nor anyone holding any state or federal office can accept a title from a foreign state unless first approved by Congress.

The first part of Clause 8 is perhaps the most cited and directly applicable to contemporary concerns. Think of all the czars who have been appointed recently by the President. It can be argued that being a czar is not noble, nor is the title one of British nobility, but that would construe the term and the intent far too narrowly. The Founders did not want an aristocratic ruling class who were insulated from the public. That seems to be the very definition of the recently appointed czars who usually have close personal ties with the appointing President or one of his officials. Furthermore, theses czars are insulated from the influence of the public and congressional oversight.

This is the obvious interpretation of the Clause. What usually goes unnoticed is the second part.

The first thing that strikes me when reading this Clause is the phrase “no Person holding any Office of Profit or Trust under them,” specifically the use of the term “them”. It is uncommon for most of us to use the pronoun “them” instead of “it” when referring to the United States. Reading this sentence in conjunction with the Preamble, we can better understand what the Founders meant when they wrote, “We the People, of the United States of America.” If their view held consistent between the Preamble and Article I, which it surely did, then We the People would seem to mean the people of the states rather than a single national people. This is more than just a pedantic discussion of constitutional interpretation however, but instead one more instance of how a close reading of the Constitution can provide solutions to contemporary political debates.

Here is how.

The national government overshadows our states which is partially due to, or has at least led to, our viewing the United States as a singular rather than a plural. In viewing the United States as a plural we can understand it as a compact between the states, and their citizens, rather than between the people of a national, single United States. This understanding is quite consistent with the view expressed by Madison and Jefferson in the Virginia and Kentucky Resolutions respectively. If we were to adopt this reading of the American Constitutional tradition, and its implications as articulated by Madison and Jefferson, we would have a more decentralized regime, and the national government would be more limited as a result. If national action required the consent of the states, and the people of the states as citizens of their respective states rather than national citizens, there would be a more significant check on the national government’s ability to push through controversial legislation or for the growing bureaucracy to implement plans inconsistent with the will of the people. If we had maintained this view of the Constitution, chances are the recent health care reform would have been blocked, or at least restricted to only those states that supported the reform. It would also be unlikely that federal agencies like the EPA would be able to force states to abide by their administrative rules without the consent of the states.

The common thread that runs through the first and second parts of Clause 8 is an aspiration towards limited government, which then makes this Clause thematically consistent with all of Section 9 as it is here that the limitations on Congress are enumerated.

It is no surprise to anyone that the Founders wanted limited government, but it is important to understand why and how they went about trying to achieve it. And while it is easy to cite specific sections and clauses to this effect, it is more important to explain what those citations mean. The Constitution demands a reading that searches for a political theory for it is only then that we can formulate a coherent argument about what the Founders would have to say about contemporary matters.

Kyle Scott is a lecturer in the Department of Political Science and Honors College at the University of Houston. His third book, Federalism, is due out March 17th. Dr. Scott has written on the Federalist Papers for Constituting America and proudly serves as a member of its Constitutional Advisory Board. He can be reached at kascott@uh.edu. Or, you can follow his blog at www.redroom.com/member/kylescott

Guest Essayist: Kyle Scott, Political Science Department and Honors College Professor at the University of Houston

Article I, Section 7, Clause 3

3:  Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

Within a single clause we see on display one of the most important components of the U.S. Constitution: a system of checks and balances. Within Article 1, Section 7, Clause 3 we see that not only must a bill pass through both houses of the bicameral legislature, but it must also be signed by the President, who resides in the executive branch, in order for it to become law.

The bicameral legislature is the result of what would become known as the Connecticut Compromise. At the Constitutional Convention of 1787 the large states proposed a bicameral legislature where the states would be represented in the national assembly in proportion to their state’s population. Therefore, a state like Virginia would have more representatives than a small state like New Jersey. The small states countered with what would become known as the New Jersey Plan. In this plan there was to be a unicameral legislature in which the states would be represented equally. Roger Sherman from Connecticut proposed a bicameral legislature in which the membership in the lower house would be determined by state population and in the upper house each state would be represented equally. There were some modifications before it was put into the Constitution, but for the most part the Connecticut Compromise created our current legislative structure in which each state is represented in the House of Representatives in proportion to the state’s population and each state is represented by two senators in the upper house, or Senate. In order to balance the interests of the small states and the large states, a bill must pass through both houses in identical form before it can be sent to the President for his signature or veto.

By instituting a system of checks and balances the Constitution introduces delay into the process in order stymie reactionary policies by allowing various interests to voice their support or opposition. This assuaged the concerns of those who feared the ability of the many to lead the country haphazardly down a path of ever changing public sentiment, and those who feared the capricious decision making of a monarchy or aristocracy that would strip the people of their liberty. Therefore, the Connecticut Compromise was not just a compromise between big states and small states, but between those who favored more democracy and those who favored less. The House was intended to be representative of the people’s interests—as members of this chamber were elected directly by the people—and the Senate was intended to be representative of the entire state as determined by the state’s political elite—as Senators were to be chosen by the state legislature, for it was not until the ratification of the 17th Amendment in 1913 that Senators were directly elected by the people.

Once a bill satisfied the concerns of the people and the elite, and those from large states and small states, it was sent to the President who was supposed to represent the view of the whole nation. Thus, it was yet another check introduced into the system. If the bill ran against the nation’s best interests the President was supposed to veto it. But, the President could not single-handedly stop legislation as Congress is given the ability to override a veto by a 2/3’s vote in each chamber. In granting veto override authority to Congress the Framer’s of the Constitution institutionalized distrust of a single executive, surely a by-product of their experience under King George III.

When a system of checks and balances is effectively implemented it is able to prevent the interests of some overwhelming the interests of others in a way that would threaten safety and liberty. When a group has the ability to protect its interests against the competing interests of another group, a compromise must be reached between the competing groups in order for the policy process to move forward. The compromise produces moderate policy, and change that is slow and incremental. The animating characteristic of this program is self-protection, which itself is spawned from the emphasis the Framer’s placed on liberty. We cannot entrust others to protect our liberty, but we must do it ourselves by being engaged, informed, and responsible in our political and private lives. It is our liberty that gives us the ability to do these things, and it is our liberty we protect when we do. Because liberty is an instrumental and intrinsic value, there is a symbiotic relationship between our political involvement and our liberty that the Constitution seeks to institutionalize.

Kyle Scott is a lecturer in the Department of Political Science and Honors College at the University of Houston. His third book, Federalism, is due out March 17th. Dr. Scott has written on the Federalist Papers for Constituting America and proudly serves as a member of its Constitutional Advisory Board. He can be reached at kascott@uh.edu. Or, you can follow his blog at www.redroom.com/member/kylescott

Guest Essayist: Kyle Scott, Political Science Department and Honors College Professor at the University of Houston

In a representative system of government the election of legislators is of paramount importance. Given that the legislature is to be the primary lawmaking body, the election of its members will go a long way in deciding what gets done. Thus, it is no surprise that the method by which members of the House and Senate were to be chosen under the new Constitution became a contentious issue during the ratification debates. On February 22, 1788, Alexander Hamilton published Federalist #59—under the now well-known pseudonym Publius—to address the issue of how the election of members of Congress was to be regulated.

In the Declaration of Independence one set of grievances levied against King George III was the unfair manipulation of elections. Among the long-train of abuses that the King was found guilty of were that “He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public records…He has dissolved representative houses repeatedly…He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the legislative power, incapable of annihilation, have returned to the people at large for their exercise; the state remaining the meantime exposed to all the dangers of invasion from without, and convulsions within.” The idea that a people ought to determine for itself how its representatives are elected and when the legislative branch meets and dissolves is central to the Jeffersonian conception of self-government and all those who agree with the political theory outlined in the U.S. Declaration of Independence. For without the ability to do so, the people are left unable to govern themselves and must succumb to the whim of the body that does have the power to decide how legislators are chosen and when the legislature is to meet.

Federalist #59 argues that these powers are given to the state except in instances when the national government feels it is necessary to step in. The national government, according to Hamilton’s argument, may alter the times and manner for holding elections of senators and representatives, and may alter the places in which elections are held for representatives, but may not interfere with the places in which senators are elected. Hamilton’s argument was that leaving these powers solely in the hands of the states would leave the Union at the mercy of the states. Hamilton’s fear was of disunion. He argued that the national government should be given a check on the ability of state governments to regulate the election of members to Congress in order to prevent disunion that would result from too much state autonomy. Opponents of constitutional ratification, known collectively as Anti-Federalists and who Hamilton was responding to in #59, did not see disunion as the primary threat to self-government as Hamilton did, but rather the accumulation of political power within a centralized national government.

While the debate over how to determine the means of representation is itself important, it brings to light one of the central debates in American politics—how to balance the need for stability and the need for liberty. We see this debate play out in issue areas as varied as federalism and national security to financial regulation. It is a continuous struggle to find the balance, but it is in the struggle where the balance is found. Had Hamilton faced no opposition then one could justifiably read the constitution as a vehicle for government centralization, but because he faced opposition we know that the constitution was designed to balance the need for a central government with the need to maintain local government structures. We need to take our cue from the founding generation—and not just Publius—but all of those who took it upon themselves to embark on a high-minded political debate that touched upon perennial questions of political significance. By following the founders in this respect we will be able to engage in a reasoned and informed debate about what is most important to us. By doing so we will be able to stay faithful to the wording and intentions of the founders’ Constitution as well as the spirit through which the founding generation governed.

Monday, July 19th, 2010

Kyle Scott, PhD teaches in the Political Science Department and Honors College at the University of Houston. His published research deals with constitutional interpretation and its relevance for contemporary politics. His most recent book, The Price of Politics, critically assesses the Supreme Court’s eminent domain decisions and explains the importance of property rights.


Guest Essayist: Kyle Scott, Political Science Department and Honors College Professor at the University of Houston

In Federalist #61 Hamilton reveals his theory of constitutional construction in a peculiar way. Hamilton’s view of the role constitutions should serve is consistent with what modern political scientists consider vital for a long-lasting constitution. Constitutions, if they are to last, must be broad and treated with reverence.

The topic of #61 is a carryover from #59 and #60; for the first of these I have already provided comments. The reason Hamilton cannot leave this topic alone is because his opponents will not. Much of the Federalist owes its structure to the fact that Publius was engaged in an ongoing public opinion campaign. If Publius felt that it lacked public support on a particular facet of the Constitution because of an objection raised by an Anti-Federalist then Publius would write another paper on the topic. Because many of the objections are being levied by those who favor a more decentralized structure than what the Constitution proposes; Hamilton uses the states to his advantage. In this paper He shows that, as has been customary throughout the Federalist, the provisions which are incorporated into the Constitution also appear in some of the state constitutions. This is a successful rhetorical strategy albeit one that lacks some logical and philosophical rigor. For instance, while Hamilton never reconciles the Constitution’s inconsistency with the U.S. Declaration with regard to the location of elections, he does make it a more palatable inconsistency to show that the people of New York have dealt with this in their own state without causing much of a problem.

Hamilton gives a straightforward defense of placing the power to determine when and how elections are held in the latter-third of #61, something for which the reader has been patiently awaiting. Putting this power into the hands of the national government is a matter of political expediency. If the power were left in the hands of the states there would be little or no consistency with regard to elections and members elected to the House and Senate would begin their terms anytime between January and December depending upon when their state held elections. One could easily imagine what types of problems this might cause. Of course, Hamilton knows that there is an easy objection to his claim: Why leave the decision to Congress? Why not specify in the Constitution when all elections for national office are to be held? Hamilton’s response is where we see his theory of constitutional construction come through.

Hamilton objects to the inclusion of such a specification in the Constitution because he is open to the possibility that events and changes may occur that would require an amendment to the Constitution as it relates to this matter. If there are such events on a regular basis, amending the Constitution on a regular basis will become necessary. Hamilton does not want to see this happen. For if Constitutions are specific in their provisions, and they contain too numerous provisions, they will require constant amendment. Being so specific is not what Constitutions are for, but rather laws. Constitutions provide the scaffolding and the laws provide the brick and mortar. Moreover, the more we amend Constitutions the more feeble they become, if not in actuality, then at least in perception, which then leads to an actual weakening. If citizens and officials perceive their Constitution as weak, then the whole system runs the risk of collapsing. A Constitution must be held in reverence by the people and officials; which means it should not be tinkered with too much after it is ratified. Hamilton knew this, and so did the Framers who approved of Article V which made the amendment process so difficult and thus unlikely.

Whether we agree or disagree with Hamilton’s position that the threat to a just government comes from below rather than above, we cannot deny that his understanding of constitutional construction is accurate.

Wednesday, July 21st, 2010

Kyle Scott, PhD teaches in the Political Science Department and Honors College at the University of Houston. His published research deals with constitutional interpretation and its relevance for contemporary politics. His most recent book, The Price of Politics, critically assesses the Supreme Court’s eminent domain decisions and explains the importance of property rights.

 

Guest Essayist: Kyle Scott, PhD, Professor in the Political Science Department and Honors College at the University of Houston

Federalist #71 continues with a discussion of the President, particularly the length of the presidential term in office. Hamilton lays out the concerns over term length at the beginning: if the term is too long the President will not do what is best for the nation but what is best for himself, and if too short, the President will have no incentive to do the job well, but merely bide his time until the end of term, but he will also be susceptible to undue influence from the people and congress if his term is not long enough. What might be surprising to some readers is that the concern is over how long the term should be where the real discussion should be on term limits. With the ability of incumbents to entrench themselves in office, it might not matter if the term is 2 years or 8 years; if the President keeps getting reelected the term in office could go on indefinitely thus bringing about the first set of negative consequences established by Hamilton. Remember, it was not until 1951 with the ratification of the 22nd Amendment that the President was limited to two terms.

However narrow-sighted #71 might appear at first blush, we should always remember that Hamilton warned in #1 that in writing he will keep his motives within the “depository of his own breast,” which means we should always be on the lookout for multiple lessons. One lesson in particular I find fascinating in #71 is his criticism of democracy. #71 is not just about how long a President should serve before coming up for reelection, but rather the competing preferences of rule by the elite or rule by the people.

In the second paragraph Hamilton mocks those who suggest the President should be moved by popular opinion. “But such men entertain very crude notions, as well of the purposes for which government was instituted, as of the true means by which the public happiness may be promoted. The republican principle demands that the deliberate sense of the community should govern the conduct of those to whom they intrust the management of their affairs; but it does not require an unqualified complaisance to every sudden breeze of passion.” The President should strive for the public good while keeping in mind that the public may not always know what is in its own good.

Hamilton would be abhorred by Bill Clinton’s “governing by the polls” in which he would pursue policies based on their popularity. Hamilton would also find it comical that we judge the quality of a sitting President by how well he does in public opinion polls. Presidents should be above such matters. Whether it is going to war in Iraq or looking to reform healthcare, Hamilton suggests that the President should not be influenced by popular opinion. While he was a member of parliament, Edmund Burke held a similar position when he said, “It is his duty to sacrifice his repose, his pleasures, his satisfactions, to theirs; and above all, ever, and in all cases, to prefer their interest to his own. But his unbiased opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living.

These he does not derive from your pleasure; nor from the law and the constitution. They are a trust from Providence, for the abuse of which he is deeply answerable. Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.”

The opinion of the people should not guide the elected President, thus, the President should have mechanisms in place to shield him from the public’s backlash, which is why the length of the term is so important to Hamilton. If the term is too short, the President would only do what was popular.

It was not just the people who the President should be insulated from, but congress as well. If he were in office for too short of a term, the President would fall to the whim of congress and thus violate the separation of powers model borrowed from Montesquieu. But, insulating the President from congress was another way of insulating the President from the undue influence—no matter how indirect—of the people.

We should not be shocked by what we read in #71, for it is well-established that Hamilton was in favor of a strong executive. But, Hamilton’s executive is not what the Constitution gave us, nor is Hamilton’s view the predominant view. Many of the Anti-Federalists, not to mention Madison and Jefferson, were in favor of a more populist position. #71, as much as any of the others, reinforces my claim that we cannot read the Federalist as authored by one Publius just as we cannot think of the founders as one group.

Hamilton recognized the capriciousness of the people. He recognized that the people could be petty and have a short-memory, thus something like presidential authority should be institutionally defined and insulated from popular influence. I do appreciate his suspicion of the popular opinion even if he did overestimate the wisdom of the President.

Wednesday, August 4th, 2010

Kyle Scott, PhD teaches in the Political Science Department and Honors College at the University of Houston. His published research deals with constitutional interpretation and its relevance for contemporary politics. His most recent book, The Price of Politics, critically assesses the Supreme Court’s eminent domain decisions and explains the importance of property rights.